1. G.R. No.

L-45081 July 15, 1936

JOSE A. ANGARA, petitioner,
vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR,respondents.
Godofredo Reyes for petitioner.
Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
LAUREL, J.:
This is an original action instituted in this court by the petitioner, Jose A. Angara, for the
issuance of a writ of prohibition to restrain and prohibit the Electoral Commission, one of the
respondents, from taking further cognizance of the protest filed by Pedro Ynsua, another
respondent, against the election of said petitioner as member of the National Assembly for the
first assembly district of the Province of Tayabas.
The facts of this case as they appear in the petition and as admitted by the respondents are as
follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the
respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted
for the position of member of the National Assembly for the first district of the Province of
Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the
petitioner as member-elect of the National Assembly for the said district, for having
received the most number of votes;
(3) That on November 15, 1935, the petitioner took his oath of office;
(4) That on December 3, 1935, the National Assembly in session assembled, passed the
following resolution:
[No. 8]
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS
DIPUTADOS CONTRA QUIENES NO SE HA PRESENTADO
PROTESTA.
Se resuelve: Que las actas de eleccion de los Diputados contra quienes
no se hubiere presentado debidamente una protesta antes de la
adopcion de la presente resolucion sean, como por la presente, son
aprobadas y confirmadas.
Adoptada, 3 de diciembre, 1935.
(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the
Electoral Commission a "Motion of Protest" against the election of the herein petitioner,
Jose A. Angara, being the only protest filed after the passage of Resolutions No. 8
aforequoted, and praying, among other-things, that said respondent be declared elected
member of the National Assembly for the first district of Tayabas, or that the election of
said position be nullified;
(6) That on December 9, 1935, the Electoral Commission adopted a resolution,
paragraph 6 of which provides:
6. La Comision no considerara ninguna protesta que no se haya presentado en o
antes de este dia.
(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the
respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to
Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging
(a) that Resolution No. 8 of the National Assembly was adopted in the legitimate
exercise of its constitutional prerogative to prescribe the period during which protests
against the election of its members should be presented; (b) that the aforesaid resolution
has for its object, and is the accepted formula for, the limitation of said period; and (c)
that the protest in question was filed out of the prescribed period;
(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer
to the Motion of Dismissal" alleging that there is no legal or constitutional provision
barring the presentation of a protest against the election of a member of the National
Assembly after confirmation;
 (9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to
the aforesaid "Answer to the Motion of Dismissal";
(10) That the case being submitted for decision, the Electoral Commission promulgated
a resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the
Protest."
The application of the petitioner sets forth the following grounds for the issuance of the writ
prayed for:
(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission
solely as regards the merits of contested elections to the National Assembly;
(b) That the Constitution excludes from said jurisdiction the power to regulate the
proceedings of said election contests, which power has been reserved to the Legislative
Department of the Government or the National Assembly;
(c) That like the Supreme Court and other courts created in pursuance of the
Constitution, whose exclusive jurisdiction relates solely to deciding the merits of
controversies submitted to them for decision and to matters involving their internal
organization, the Electoral Commission can regulate its proceedings only if the National
Assembly has not availed of its primary power to so regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be
respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution
and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress
of the United States) as well as under section 1 and 3 (should be sections 1 and 2) of
article VIII of the Constitution, this Supreme Court has jurisdiction to pass upon the
fundamental question herein raised because it involves an interpretation of the
Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the
respondent Electoral Commission interposing the following special defenses:
(a) That the Electoral Commission has been created by the Constitution as an
instrumentality of the Legislative Department invested with the jurisdiction to decide "all
contests relating to the election, returns, and qualifications of the members of the
National Assembly"; that in adopting its resolution of December 9, 1935, fixing this date
as the last day for the presentation of protests against the election of any member of the
National Assembly, it acted within its jurisdiction and in the legitimate exercise of the
implied powers granted it by the Constitution to adopt the rules and regulations essential
to carry out the power and functions conferred upon the same by the fundamental law;
that in adopting its resolution of January 23, 1936, overruling the motion of the petitioner
to dismiss the election protest in question, and declaring itself with jurisdiction to take
cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial
functions a an instrumentality of the Legislative Department of the Commonwealth
Government, and hence said act is beyond the judicial cognizance or control of the
Supreme Court;
(b) That the resolution of the National Assembly of December 3, 1935, confirming the
election of the members of the National Assembly against whom no protest had thus far
been filed, could not and did not deprive the electoral Commission of its jurisdiction to
take cognizance of election protests filed within the time that might be set by its own
rules:
(c) That the Electoral Commission is a body invested with quasi-judicial functions,
created by the Constitution as an instrumentality of the Legislative Department, and is
not an "inferior tribunal, or corporation, or board, or person" within the purview of section
226 and 516 of the Code of Civil Procedure, against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on
March 2, 1936, setting forth the following as his special defense:
(a) That at the time of the approval of the rules of the Electoral Commission on
December 9, 1935, there was no existing law fixing the period within which protests
against the election of members of the National Assembly should be filed; that in fixing
December 9, 1935, as the last day for the filing of protests against the election of
members of the National Assembly, the Electoral Commission was exercising a power
impliedly conferred upon it by the Constitution, by reason of its quasi-judicial attributes;
 (b) That said respondent presented his motion of protest before the Electoral
Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of the
said Electoral Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by
said respondent and over the parties thereto, and the resolution of the Electoral
Commission of January 23, 1936, denying petitioner's motion to dismiss said protest
was an act within the jurisdiction of the said commission, and is not reviewable by
means of a writ of prohibition;
(d) That neither the law nor the Constitution requires confirmation by the National
Assembly of the election of its members, and that such confirmation does not operate to
limit the period within which protests should be filed as to deprive the Electoral
Commission of jurisdiction over protest filed subsequent thereto;
(e) That the Electoral Commission is an independent entity created by the Constitution,
endowed with quasi-judicial functions, whose decision are final and unappealable;
( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal,
corporation, board or person, within the terms of sections 226 and 516 of the Code of
Civil Procedure; and that neither under the provisions of sections 1 and 2 of article II
(should be article VIII) of the Constitution and paragraph 13 of section 1 of the
Ordinance appended thereto could it be subject in the exercise of its quasi-judicial
functions to a writ of prohibition from the Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd
Congress of the united States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for decision, the
petitioner prayed for the issuance of a preliminary writ of injunction against the respondent
Electoral Commission which petition was denied "without passing upon the merits of the case"
by resolution of this court of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to the following two principal
propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject
matter of the controversy upon the foregoing related facts, and in the affirmative,
2. Has the said Electoral Commission acted without or in excess of its jurisdiction in
assuming to the cognizance of the protest filed the election of the herein petitioner
notwithstanding the previous confirmation of such election by resolution of the National
Assembly?
We could perhaps dispose of this case by passing directly upon the merits of the controversy.
However, the question of jurisdiction having been presented, we do not feel justified in evading
the issue. Being a case primæ impressionis, it would hardly be consistent with our sense of duty
to overlook the broader aspect of the question and leave it undecided. Neither would we be
doing justice to the industry and vehemence of counsel were we not to pass upon the question
of jurisdiction squarely presented to our consideration.
The separation of powers is a fundamental principle in our system of government. It obtains not
through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its
own sphere. But it does not follow from the fact that the three powers are to be kept separate
and distinct that the Constitution intended them to be absolutely unrestrained and independent
of each other. The Constitution has provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the government. For example,
the Chief Executive under our Constitution is so far made a check on the legislative power that
this assent is required in the enactment of laws. This, however, is subject to the further check
that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote
of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has
also the right to convene the Assembly in special session whenever he chooses. On the other
hand, the National Assembly operates as a check on the Executive in the sense that its consent
through its Commission on Appointments is necessary in the appointments of certain officers;
and the concurrence of a majority of all its members is essential to the conclusion of treaties.
Furthermore, in its power to determine what courts other than the Supreme Court shall be
established, to define their jurisdiction and to appropriate funds for their support, the National
Assembly controls the judicial department to a certain extent. The Assembly also exercises the
judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the
final arbiter, effectively checks the other departments in the exercise of its power to determine
the law, and hence to declare executive and legislative acts void if violative of the Constitution.
But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the several departments, however,
sometimes makes it hard to say just where the one leaves off and the other begins. In times of
social disquietude or political excitement, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the
only constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility, but
as much as it was within the power of our people, acting through their delegates to so provide,
that instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole, under a
system of checks and balances, and subject to specific limitations and restrictions provided in
the said instrument. The Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism by
which to direct the course of government along constitutional channels, for then the distribution
of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms. Certainly, the limitation and restrictions
embodied in our Constitution are real as they should be in any living constitution. In the United
States where no express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development there, has
been set at rest by popular acquiescence for a period of more than one and a half centuries. In
our case, this moderating power is granted, if not expressly, by clear implication from section 2
of article VIII of our constitution.
The Constitution is a definition of the powers of government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality of
the judiciary as the rational way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review under the Constitution. Even
then, this power of judicial review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited further to the constitutional question
raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the
Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the governments of the
government.
But much as we might postulate on the internal checks of power provided in our Constitution, it
ought not the less to be remembered that, in the language of James Madison, the system itself
is not "the chief palladium of constitutional liberty . . . the people who are authors of this blessing
must also be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce .
. . aggression on the authority of their constitution." In the Last and ultimate analysis, then, must
the success of our government in the unfolding years to come be tested in the crucible of
Filipino minds and hearts than in consultation rooms and court chambers.
In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935,
confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral
Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for
the filing of protests against the election, returns and qualifications of members of the National
Assembly, notwithstanding the previous confirmation made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the
effect of cutting off the power of the Electoral Commission to entertain protests against the
election, returns and qualifications of members of the National Assembly, submitted after
December 3, 1935, then the resolution of the Electoral Commission of December 9, 1935, is
mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral
Commission has the sole power of regulating its proceedings to the exclusion of the National
Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed
said date as the last day for filing protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave
constitutional nature between the National Assembly on the one hand, and the Electoral
Commission on the other. From the very nature of the republican government established in our
country in the light of American experience and of our own, upon the judicial department is
thrown the solemn and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission, as we shall have occasion to refer
hereafter, is a constitutional organ, created for a specific purpose, namely to determine all
contests relating to the election, returns and qualifications of the members of the National
Assembly. Although the Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is not subject to constitutional
restrictions. The Electoral Commission is not a separate department of the government, and
even if it were, conflicting claims of authority under the fundamental law between department
powers and agencies of the government are necessarily determined by the judiciary in justifiable
and appropriate cases. Discarding the English type and other European types of constitutional
government, the framers of our constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some countries which
have declined to follow the American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to interpret the fundamental law.
This is taken as a recognition of what otherwise would be the rule that in the absence of direct
prohibition courts are bound to assume what is logically their function. For instance, the
Constitution of Poland of 1921, expressly provides that courts shall have no power to examine
the validity of statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar
declaration. In countries whose constitutions are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia
(arts. 2 and 3, Preliminary Law to constitutional Charter of the Czechoslovak Republic, February
29, 1920) and Spain (arts. 121-123, Title IX, Constitutional of the Republic of 1931) especial
constitutional courts are established to pass upon the validity of ordinary laws. In our case, the
nature of the present controversy shows the necessity of a final constitutional arbiter to
determine the conflict of authority between two agencies created by the Constitution. Were we
to decline to take cognizance of the controversy, who will determine the conflict? And if the
conflict were left undecided and undetermined, would not a void be thus created in our
constitutional system which may be in the long run prove destructive of the entire framework?
To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of
the opinion that upon the admitted facts of the present case, this court has jurisdiction over the
Electoral Commission and the subject mater of the present controversy for the purpose of
determining the character, scope and extent of the constitutional grant to the Electoral
Commission as "the sole judge of all contests relating to the election, returns and qualifications
of the members of the National Assembly."
Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second
proposition and determine whether the Electoral Commission has acted without or in excess of
its jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take
cognizance of the protest filed against the election of the herein petitioner notwithstanding the
previous confirmation thereof by the National Assembly on December 3, 1935. As able counsel
for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI
of the Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme
Court designated by the Chief Justice, and of six Members chosen by the National Assembly,
three of whom shall be nominated by the party having the largest number of votes, and three by
the party having the second largest number of votes therein. The senior Justice in the
Commission shall be its Chairman. The Electoral Commission shall be the sole judge of all
contests relating to the election, returns and qualifications of the members of the National
Assembly." It is imperative, therefore, that we delve into the origin and history of this
constitutional provision and inquire into the intention of its framers and the people who adopted
it so that we may properly appreciate its full meaning, import and significance.
The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par.
5) laying down the rule that "the assembly shall be the judge of the elections, returns, and
qualifications of its members", was taken from clause 1 of section 5, Article I of the Constitution
of the United States providing that "Each House shall be the Judge of the Elections, Returns,
and Qualifications of its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18,
par. 1) modified this provision by the insertion of the word "sole" as follows: "That the Senate
and House of Representatives, respectively, shall be the sole judges of the elections, returns,
and qualifications of their elective members . . ." apparently in order to emphasize the exclusive
the Legislative over the particular case s therein specified. This court has had occasion to
characterize this grant of power to the Philippine Senate and House of Representatives,
respectively, as "full, clear and complete" (Veloso vs. Boards of Canvassers of Leyte and Samar
[1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent tribunal for the purpose of deciding
contested elections to the legislature was taken by the sub-committee of five appointed by the
Committee on Constitutional Guarantees of the Constitutional Convention, which sub-committee
submitted a report on August 30, 1934, recommending the creation of a Tribunal of
Constitutional Security empowered to hear legislature but also against the election of executive
officers for whose election the vote of the whole nation is required, as well as to initiate
impeachment proceedings against specified executive and judicial officer. For the purpose of
hearing legislative protests, the tribunal was to be composed of three justices designated by the
Supreme Court and six members of the house of the legislature to which the contest
corresponds, three members to be designed by the majority party and three by the minority, to
be presided over by the Senior Justice unless the Chief Justice is also a member in which case
the latter shall preside. The foregoing proposal was submitted by the Committee on
Constitutional Guarantees to the Convention on September 15, 1934, with slight modifications
consisting in the reduction of the legislative representation to four members, that is, two
senators to be designated one each from the two major parties in the Senate and two
representatives to be designated one each from the two major parties in the House of
Representatives, and in awarding representation to the executive department in the persons of
two representatives to be designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to
the Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the
Legislative Department, reads as follows:
The elections, returns and qualifications of the members of either house and all cases
contesting the election of any of their members shall be judged by an Electoral
Commission, constituted, as to each House, by three members elected by the members
of the party having the largest number of votes therein, three elected by the members of
the party having the second largest number of votes, and as to its Chairman, one Justice
of the Supreme Court designated by the Chief Justice.
The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as
proposed by the Committee on Constitutional Guarantees which was probably inspired by the
Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in
favor of the proposition of the Committee on Legislative Power to create a similar body with
reduced powers and with specific and limited jurisdiction, to be designated as a Electoral
Commission. The Sponsorship Committee modified the proposal of the Committee on
Legislative Power with respect to the composition of the Electoral Commission and made further
changes in phraseology to suit the project of adopting a unicameral instead of a bicameral
legislature. The draft as finally submitted to the Convention on October 26, 1934, reads as
follows:
(6) The elections, returns and qualifications of the Members of the National Assembly
and all cases contesting the election of any of its Members shall be judged by an
Electoral Commission, composed of three members elected by the party having the
largest number of votes in the National Assembly, three elected by the members of the
party having the second largest number of votes, and three justices of the Supreme
Court designated by the Chief Justice, the Commission to be presided over by one of
said justices.
During the discussion of the amendment introduced by Delegates Labrador, Abordo, and
others, proposing to strike out the whole subsection of the foregoing draft and inserting in lieu
thereof the following: "The National Assembly shall be the soled and exclusive judge of the
elections, returns, and qualifications of the Members", the following illuminating remarks were
made on the floor of the Convention in its session of December 4, 1934, as to the scope of the
said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of
the first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and
qualifications of the Members of the National Assembly and all cases contesting the
election of any of its Members shall be judged by an Electoral Commission, . . ." I should
like to ask from the gentleman from Capiz whether the election and qualification of the
member whose elections is not contested shall also be judged by the Electoral
Commission.
Mr. ROXAS. If there is no question about the election of the members, there is nothing to
be judged; that is why the word "judge" is used to indicate a controversy. If there is no
question about the election of a member, there is nothing to be submitted to the
Electoral Commission and there is nothing to be determined.
Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall
confirm also the election of those whose election is not contested?
Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the
House of Representatives confirming the election of its members is just a matter of the
rules of the assembly. It is not constitutional. It is not necessary. After a man files his
credentials that he has been elected, that is sufficient, unless his election is contested.
Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for
purposes of the auditor, in the matter of election of a member to a legislative body,
because he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the municipal president who is
elected? What happens with regards to the councilors of a municipality? Does anybody
confirm their election? The municipal council does this: it makes a canvass and
proclaims — in this case the municipal council proclaims who has been elected, and it
ends there, unless there is a contest. It is the same case; there is no need on the part of
the Electoral Commission unless there is a contest. The first clause refers to the case
referred to by the gentleman from Cavite where one person tries to be elected in place of
another who was declared elected. From example, in a case when the residence of the
man who has been elected is in question, or in case the citizenship of the man who has
been elected is in question.
However, if the assembly desires to annul the power of the commission, it may do so by
certain maneuvers upon its first meeting when the returns are submitted to the
assembly. The purpose is to give to the Electoral Commission all the powers exercised
by the assembly referring to the elections, returns and qualifications of the
members. When there is no contest, there is nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr. Delegate.
Mr. CINCO. Mr. President, I have a similar question as that propounded by the
gentleman from Ilocos Norte when I arose a while ago. However I want to ask more
questions from the delegate from Capiz. This paragraph 6 on page 11 of the draft cites
cases contesting the election as separate from the first part of the sections which refers
to elections, returns and qualifications.
 Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested
elections are already included in the phrase "the elections, returns and qualifications."
This phrase "and contested elections" was inserted merely for the sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own
instance, refuse to confirm the elections of the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?
THE PRESIDENT. The gentleman may yield, if he so desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is
granted to the assembly, the assembly on its own motion does not have the right to
contest the election and qualification of its members?
Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it
is, even if two-thirds of the assembly believe that a member has not the qualifications
provided by law, they cannot remove him for that reason.
Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral
Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of the assembly has the right to
question the eligibility of its members?
Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral
Commission and make the question before the Electoral Commission.
Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is
contested or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has
power and authority to pass upon the qualifications of the members of the National
Assembly even though that question has not been raised.
Mr. ROXAS. I have just said that they have no power, because they can only judge.
In the same session, the first clause of the aforesaid draft reading "The election, returns and
qualifications of the members of the National Assembly and" was eliminated by the Sponsorship
Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons,
Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the
draft as amended, Delegate Roxas speaking for the Sponsorship Committee said:
xxx xxx xxx
Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion
apuntada por varios Delegados al efecto de que la primera clausula del draft que dice:
"The elections, returns and qualifications of the members of the National Assembly"
parece que da a la Comision Electoral la facultad de determinar tambien la eleccion de
los miembros que no ha sido protestados y para obviar esa dificultad, creemos que la
enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo que se lea
como sigue: "All cases contesting the election", de modo que los jueces de la Comision
Electoral se limitaran solamente a los casos en que haya habido protesta contra las
actas." Before the amendment of Delegate Labrador was voted upon the following
interpellation also took place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
El Sr. PRESIDENTE. ¿Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros
tres a la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale
practicamente a dejar el asunto a los miembros del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en
esa forma, tanto los miembros de la mayoria como los de la minoria asi como los
miembros de la Corte Suprema consideraran la cuestion sobre la base de sus meritos,
sabiendo que el partidismo no es suficiente para dar el triunfo.
 El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que
tanto los de la mayoria como los de la minoria prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.
xxx xxx xxx
The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the
power to decide contests relating to the election, returns and qualifications of members of the
National Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98)
against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by
reducing the representation of the minority party and the Supreme Court in the Electoral
Commission to two members each, so as to accord more representation to the majority party.
The Convention rejected this amendment by a vote of seventy-six (76) against forty-six (46),
thus maintaining the non-partisan character of the commission.
As approved on January 31, 1935, the draft was made to read as follows:
(6) All cases contesting the elections, returns and qualifications of the Members of the
National Assembly shall be judged by an Electoral Commission, composed of three
members elected by the party having the largest number of votes in the National
Assembly, three elected by the members of the party having the second largest number
of votes, and three justices of the Supreme Court designated by the Chief Justice, the
Commission to be presided over by one of said justices.
The Style Committee to which the draft was submitted revised it as follows:
SEC. 4. There shall be an Electoral Commission composed of three Justices of the
Supreme Court designated by the Chief Justice, and of six Members chosen by the
National Assembly, three of whom shall be nominated by the party having the largest
number of votes, and three by the party having the second largest number of votes
therein. The senior Justice in the Commission shall be its chairman. The Electoral
Commission shall be the sole judge of the election, returns, and qualifications of the
Members of the National Assembly.
When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee,
through President Recto, to effectuate the original intention of the Convention, agreed to insert
the phrase "All contests relating to" between the phrase "judge of" and the words "the
elections", which was accordingly accepted by the Convention.
The transfer of the power of determining the election, returns and qualifications of the members
of the legislature long lodged in the legislative body, to an independent, impartial and non-
partisan tribunal, is by no means a mere experiment in the science of government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57,
58), gives a vivid account of the "scandalously notorious" canvassing of votes by political parties
in the disposition of contests by the House of Commons in the following passages which are
partly quoted by the petitioner in his printed memorandum of March 14, 1936:
153. From the time when the commons established their right to be the exclusive judges
of the elections, returns, and qualifications of their members, until the year 1770, two
modes of proceeding prevailed, in the determination of controverted elections, and rights
of membership. One of the standing committees appointed at the commencement of
each session, was denominated the committee of privileges and elections, whose
functions was to hear and investigate all questions of this description which might be
referred to them, and to report their proceedings, with their opinion thereupon, to the
house, from time to time. When an election petition was referred to this committee they
heard the parties and their witnesses and other evidence, and made a report of all the
evidence, together with their opinion thereupon, in the form of resolutions, which were
considered and agreed or disagreed to by the house. The other mode of proceeding was
by a hearing at the bar of the house itself. When this court was adopted, the case was
heard and decided by the house, in substantially the same manner as by a committee.
The committee of privileges and elections although a select committee. The committee
of privileges and elections although a select committee was usually what is called an
open one; that is to say, in order to constitute the committee, a quorum of the members
named was required to be present, but all the members of the house were at liberty to
attend the committee and vote if they pleased.
 154. With the growth of political parties in parliament questions relating to the right of
membership gradually assumed a political character; so that for many years previous to
the year 1770, controverted elections had been tried and determined by the house of
commons, as mere party questions, upon which the strength of contending factions
might be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks
upon his government, resigned his office in consequence of an adverse vote upon the
Chippenham election. Mr. Hatsell remarks, of the trial of election cases, as conducted
under this system, that "Every principle of decency and justice were notoriously and
openly prostituted, from whence the younger part of the house were insensibly, but too
successfully, induced to adopt the same licentious conduct in more serious matters, and
in questions of higher importance to the public welfare." Mr. George Grenville, a
distinguished member of the house of commons, undertook to propose a remedy for the
evil, and, on the 7th of March, 1770, obtained the unanimous leave of the house to bring
in a bill, "to regulate the trial of controverted elections, or returns of members to serve in
parliament." In his speech to explain his plan, on the motion for leave, Mr. Grenville
alluded to the existing practice in the following terms: "Instead of trusting to the merits of
their respective causes, the principal dependence of both parties is their private interest
among us; and it is scandalously notorious that we are as earnestly canvassed to attend
in favor of the opposite sides, as if we were wholly self-elective, and not bound to act by
the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is
well known, that in every contested election, many members of this house, who are
ultimately to judge in a kind of judicial capacity between the competitors, enlist
themselves as parties in the contention, and take upon themselves the partial
management of the very business, upon which they should determine with the strictest
impartiality."
155. It was to put an end to the practices thus described, that Mr. Grenville brought in a
bill which met with the approbation of both houses, and received the royal assent on the
12th of April, 1770. This was the celebrated law since known by the name of the
Grenville Act; of which Mr. Hatsell declares, that it "was one of the nobles works, for the
honor of the house of commons, and the security of the constitution, that was ever
devised by any minister or statesman." It is probable, that the magnitude of the evil, or
the apparent success of the remedy, may have led many of the contemporaries of the
measure to the information of a judgement, which was not acquiesced in by some of the
leading statesmen of the day, and has not been entirely confirmed by subsequent
experience. The bill was objected to by Lord North, Mr. De Grey, afterwards chief justice
of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr.
Charles James Fox, chiefly on the ground, that the introduction of the new system was
an essential alteration of the constitution of parliament, and a total abrogation of one of
the most important rights and jurisdictions of the house of commons.
As early as 1868, the House of Commons in England solved the problem of insuring the non-
partisan settlement of the controverted elections of its members by abdicating its prerogative to
two judges of the King's Bench of the High Court of Justice selected from a rota in accordance
with rules of court made for the purpose. Having proved successful, the practice has become
imbedded in English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as
amended by Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2;
Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws
Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787).
In the Dominion of Canada, election contests which were originally heard by the Committee of
the House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth of
Australia, election contests which were originally determined by each house, are since 1922
tried in the High Court. In Hungary, the organic law provides that all protests against the election
of members of the Upper House of the Diet are to be resolved by the Supreme Administrative
Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921
(art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the
authority to decide contested elections to the Diet or National Assembly in the Supreme Court.
For the purpose of deciding legislative contests, the Constitution of the German Reich of July 1,
1919 (art. 31), the Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and
the Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral
Commission.
The creation of an Electoral Commission whose membership is recruited both from the
legislature and the judiciary is by no means unknown in the United States. In the presidential
elections of 1876 there was a dispute as to the number of electoral votes received by each of
the two opposing candidates. As the Constitution made no adequate provision for such a
contingency, Congress passed a law on January 29, 1877 (United States Statutes at Large, vol.
19, chap. 37, pp. 227-229), creating a special Electoral Commission composed of five members
elected by the Senate, five members elected by the House of Representatives, and five justices
of the Supreme Court, the fifth justice to be selected by the four designated in the Act. The
decision of the commission was to be binding unless rejected by the two houses voting
separately. Although there is not much of a moral lesson to be derived from the experience of
America in this regard, judging from the observations of Justice Field, who was a member of
that body on the part of the Supreme Court (Countryman, the Supreme Court of the United
States and its Appellate Power under the Constitution [Albany, 1913] — Relentless Partisanship
of Electoral Commission, p. 25 et seq.), the experiment has at least abiding historical interest.
The members of the Constitutional Convention who framed our fundamental law were in their
majority men mature in years and experience. To be sure, many of them were familiar with the
history and political development of other countries of the world. When , therefore, they deemed
it wise to create an Electoral Commission as a constitutional organ and invested it with the
exclusive function of passing upon and determining the election, returns and qualifications of the
members of the National Assembly, they must have done so not only in the light of their own
experience but also having in view the experience of other enlightened peoples of the world.
The creation of the Electoral Commission was designed to remedy certain evils of which the
framers of our Constitution were cognizant. Notwithstanding the vigorous opposition of some
members of the Convention to its creation, the plan, as hereinabove stated, was approved by
that body by a vote of 98 against 58. All that can be said now is that, upon the approval of the
constitutional the creation of the Electoral Commission is the expression of the wisdom and
"ultimate justice of the people". (Abraham Lincoln, First Inaugural Address, March 4, 1861.)
From the deliberations of our Constitutional Convention it is evident that the purpose was to
transfer in its totality all the powers previously exercised by the legislature in matters pertaining
to contested elections of its members, to an independent and impartial tribunal. It was not so
much the knowledge and appreciation of contemporary constitutional precedents, however, as
the long-felt need of determining legislative contests devoid of partisan considerations which
prompted the people, acting through their delegates to the Convention, to provide for this body
known as the Electoral Commission. With this end in view, a composite body in which both the
majority and minority parties are equally represented to off-set partisan influence in its
deliberations was created, and further endowed with judicial temper by including in its
membership three justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested with the necessary authority in
the performance and execution of the limited and specific function assigned to it by the
Constitution. Although it is not a power in our tripartite scheme of government, it is, to all intents
and purposes, when acting within the limits of its authority, an independent organ. It is, to be
sure, closer to the legislative department than to any other. The location of the provision
(section 4) creating the Electoral Commission under Article VI entitled "Legislative Department"
of our Constitution is very indicative. Its compositions is also significant in that it is constituted by
a majority of members of the legislature. But it is a body separate from and independent of the
legislature.
The grant of power to the Electoral Commission to judge all contests relating to the election,
returns and qualifications of members of the National Assembly, is intended to be as complete
and unimpaired as if it had remained originally in the legislature. The express lodging of that
power in the Electoral Commission is an implied denial of the exercise of that power by the
National Assembly. And this is as effective a restriction upon the legislative power as an
express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1;
State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf
of the National Assembly that said body may regulate the proceedings of the Electoral
Commission and cut off the power of the commission to lay down the period within which
protests should be filed, the grant of power to the commission would be ineffective. The
Electoral Commission in such case would be invested with the power to determine contested
cases involving the election, returns and qualifications of the members of the National Assembly
but subject at all times to the regulative power of the National Assembly. Not only would the
purpose of the framers of our Constitution of totally transferring this authority from the legislative
body be frustrated, but a dual authority would be created with the resultant inevitable clash of
powers from time to time. A sad spectacle would then be presented of the Electoral Commission
retaining the bare authority of taking cognizance of cases referred to, but in reality without the
necessary means to render that authority effective whenever and whenever the National
Assembly has chosen to act, a situation worse than that intended to be remedied by the framers
of our Constitution. The power to regulate on the part of the National Assembly in procedural
matters will inevitably lead to the ultimate control by the Assembly of the entire proceedings of
the Electoral Commission, and, by indirection, to the entire abrogation of the constitutional
grant. It is obvious that this result should not be permitted.
We are not insensible to the impassioned argument or the learned counsel for the petitioner
regarding the importance and necessity of respecting the dignity and independence of the
national Assembly as a coordinate department of the government and of according validity to its
acts, to avoid what he characterized would be practically an unlimited power of the commission
in the admission of protests against members of the National Assembly. But as we have pointed
out hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the
power regulative in character to limit the time with which protests intrusted to its cognizance
should be filed. It is a settled rule of construction that where a general power is conferred or
duty enjoined, every particular power necessary for the exercise of the one or the performance
of the other is also conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139).
In the absence of any further constitutional provision relating to the procedure to be followed in
filing protests before the Electoral Commission, therefore, the incidental power to promulgate
such rules necessary for the proper exercise of its exclusive power to judge all contests relating
to the election, returns and qualifications of members of the National Assembly, must be
deemed by necessary implication to have been lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission
may abuse its regulative authority by admitting protests beyond any reasonable time, to the
disturbance of the tranquillity and peace of mind of the members of the National Assembly. But
the possibility of abuse is not argument against the concession of the power as there is no
power that is not susceptible of abuse. In the second place, if any mistake has been committed
in the creation of an Electoral Commission and in investing it with exclusive jurisdiction in all
cases relating to the election, returns, and qualifications of members of the National Assembly,
the remedy is political, not judicial, and must be sought through the ordinary processes of
democracy. All the possible abuses of the government are not intended to be corrected by the
judiciary. We believe, however, that the people in creating the Electoral Commission reposed as
much confidence in this body in the exclusive determination of the specified cases assigned to
it, as they have given to the Supreme Court in the proper cases entrusted to it for decision. All
the agencies of the government were designed by the Constitution to achieve specific purposes,
and each constitutional organ working within its own particular sphere of discretionary action
must be deemed to be animated with the same zeal and honesty in accomplishing the great
ends for which they were created by the sovereign will. That the actuations of these
constitutional agencies might leave much to be desired in given instances, is inherent in the
perfection of human institutions. In the third place, from the fact that the Electoral Commission
may not be interfered with in the exercise of its legitimate power, it does not follow that its acts,
however illegal or unconstitutional, may not be challenge in appropriate cases over which the
courts may exercise jurisdiction.
But independently of the legal and constitutional aspects of the present case, there are
considerations of equitable character that should not be overlooked in the appreciation of the
intrinsic merits of the controversy. The Commonwealth Government was inaugurated on
November 15, 1935, on which date the Constitution, except as to the provisions mentioned in
section 6 of Article XV thereof, went into effect. The new National Assembly convened on
November 25th of that year, and the resolution confirming the election of the petitioner, Jose A.
Angara was approved by that body on December 3, 1935. The protest by the herein respondent
Pedro Ynsua against the election of the petitioner was filed on December 9 of the same year.
The pleadings do not show when the Electoral Commission was formally organized but it does
appear that on December 9, 1935, the Electoral Commission met for the first time and approved
a resolution fixing said date as the last day for the filing of election protest. When, therefore, the
National Assembly passed its resolution of December 3, 1935, confirming the election of the
petitioner to the National Assembly, the Electoral Commission had not yet met; neither does it
appear that said body had actually been organized. As a mater of fact, according to certified
copies of official records on file in the archives division of the National Assembly attached to the
record of this case upon the petition of the petitioner, the three justices of the Supreme Court
the six members of the National Assembly constituting the Electoral Commission were
respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the National
Assembly confirming non-protested elections of members of the National Assembly had the
effect of limiting or tolling the time for the presentation of protests, the result would be that the
National Assembly — on the hypothesis that it still retained the incidental power of regulation in
such cases — had already barred the presentation of protests before the Electoral Commission
had had time to organize itself and deliberate on the mode and method to be followed in a
matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and could
not have been contemplated, and should be avoided.
From another angle, Resolution No. 8 of the National Assembly confirming the election of
members against whom no protests had been filed at the time of its passage on December 3,
1935, can not be construed as a limitation upon the time for the initiation of election contests.
While there might have been good reason for the legislative practice of confirmation of the
election of members of the legislature at the time when the power to decide election contests
was still lodged in the legislature, confirmation alone by the legislature cannot be construed as
depriving the Electoral Commission of the authority incidental to its constitutional power to be
"the sole judge of all contest relating to the election, returns, and qualifications of the members
of the National Assembly", to fix the time for the filing of said election protests. Confirmation by
the National Assembly of the returns of its members against whose election no protests have
been filed is, to all legal purposes, unnecessary. As contended by the Electoral Commission in
its resolution of January 23, 1936, overruling the motion of the herein petitioner to dismiss the
protest filed by the respondent Pedro Ynsua, confirmation of the election of any member is not
required by the Constitution before he can discharge his duties as such member. As a matter of
fact, certification by the proper provincial board of canvassers is sufficient to entitle a member-
elect to a seat in the national Assembly and to render him eligible to any office in said body (No.
1, par. 1, Rules of the National Assembly, adopted December 6, 1935).
Under the practice prevailing both in the English House of Commons and in the Congress of the
United States, confirmation is neither necessary in order to entitle a member-elect to take his
seat. The return of the proper election officers is sufficient, and the member-elect presenting
such return begins to enjoy the privileges of a member from the time that he takes his oath of
office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs.
21, 25, 26). Confirmation is in order only in cases of contested elections where the decision is
adverse to the claims of the protestant. In England, the judges' decision or report in
controverted elections is certified to the Speaker of the House of Commons, and the House,
upon being informed of such certificate or report by the Speaker, is required to enter the same
upon the Journals, and to give such directions for confirming or altering the return, or for the
issue of a writ for a new election, or for carrying into execution the determination as
circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed,
the order or decision of the particular house itself is generally regarded as sufficient, without any
actual alternation or amendment of the return (Cushing, Law and Practice of Legislative
Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still in force, each house of the
Philippine Legislature fixed the time when protests against the election of any of its members
should be filed. This was expressly authorized by section 18 of the Jones Law making each
house the sole judge of the election, return and qualifications of its members, as well as by a
law (sec. 478, Act No. 3387) empowering each house to respectively prescribe by resolution the
time and manner of filing contest in the election of member of said bodies. As a matter of
formality, after the time fixed by its rules for the filing of protests had already expired, each
house passed a resolution confirming or approving the returns of such members against whose
election no protests had been filed within the prescribed time. This was interpreted as cutting off
the filing of further protests against the election of those members not theretofore contested
(Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record — First Period, p. 89;
Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin
[Romblon], Sixth Philippine Legislature, Record — First Period, pp. 637-640;
Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record — First
Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record —
First Period, vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the
Jones Law. Act No. 3387, section 478, must be deemed to have been impliedly abrogated also,
for the reason that with the power to determine all contest relating to the election, returns and
qualifications of members of the National Assembly, is inseparably linked the authority to
prescribe regulations for the exercise of that power. There was thus no law nor constitutional
provisions which authorized the National Assembly to fix, as it is alleged to have fixed on
December 3, 1935, the time for the filing of contests against the election of its members. And
what the National Assembly could not do directly, it could not do by indirection through the
medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows fundamentally the theory
of separation of power into the legislative, the executive and the judicial.
(b) That the system of checks and balances and the overlapping of functions and duties
often makes difficult the delimitation of the powers granted.
(c) That in cases of conflict between the several departments and among the agencies
thereof, the judiciary, with the Supreme Court as the final arbiter, is the only
constitutional mechanism devised finally to resolve the conflict and allocate constitutional
boundaries.
(d) That judicial supremacy is but the power of judicial review in actual and appropriate
cases and controversies, and is the power and duty to see that no one branch or agency
of the government transcends the Constitution, which is the source of all authority.
(e) That the Electoral Commission is an independent constitutional creation with specific
powers and functions to execute and perform, closer for purposes of classification to the
legislative than to any of the other two departments of the governments.
(f ) That the Electoral Commission is the sole judge of all contests relating to the
election, returns and qualifications of members of the National Assembly.
(g) That under the organic law prevailing before the present Constitution went into effect,
each house of the legislature was respectively the sole judge of the elections, returns,
and qualifications of their elective members.
(h) That the present Constitution has transferred all the powers previously exercised by
the legislature with respect to contests relating to the elections, returns and qualifications
of its members, to the Electoral Commission.
(i) That such transfer of power from the legislature to the Electoral Commission was full,
clear and complete, and carried with it ex necesitate rei the implied power inter alia to
prescribe the rules and regulations as to the time and manner of filing protests.
( j) That the avowed purpose in creating the Electoral Commission was to have an
independent constitutional organ pass upon all contests relating to the election, returns
and qualifications of members of the National Assembly, devoid of partisan influence or
consideration, which object would be frustrated if the National Assembly were to retain
the power to prescribe rules and regulations regarding the manner of conducting said
contests.
(k) That section 4 of article VI of the Constitution repealed not only section 18 of the
Jones Law making each house of the Philippine Legislature respectively the sole judge
of the elections, returns and qualifications of its elective members, but also section 478
of Act No. 3387 empowering each house to prescribe by resolution the time and manner
of filing contests against the election of its members, the time and manner of notifying
the adverse party, and bond or bonds, to be required, if any, and to fix the costs and
expenses of contest.
(l) That confirmation by the National Assembly of the election is contested or not, is not
essential before such member-elect may discharge the duties and enjoy the privileges of
a member of the National Assembly.
(m) That confirmation by the National Assembly of the election of any member against
whom no protest had been filed prior to said confirmation, does not and cannot deprive
 the Electoral Commission of its incidental power to prescribe the time within which
protests against the election of any member of the National Assembly should be filed.
We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its
constitutional prerogative in assuming to take cognizance of the protest filed by the respondent
Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution
of the National Assembly of December 3, 1935 can not in any manner toll the time for filing
protests against the elections, returns and qualifications of members of the National Assembly,
nor prevent the filing of a protest within such time as the rules of the Electoral Commission
might prescribe.
In view of the conclusion reached by us relative to the character of the Electoral Commission as
a constitutional creation and as to the scope and extent of its authority under the facts of the
present controversy, we deem it unnecessary to determine whether the Electoral Commission is
an inferior tribunal, corporation, board or person within the purview of sections 226 and 516 of
the Code of Civil Procedure.
The petition for a writ of prohibition against the Electoral Commission is hereby denied, with
costs against the petitioner. So ordered.
Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

Separation of Powers
FACTS: In the elections of September 1935, Jose Angara, Pedro Ynsua, Miguel Castillo and
Dionisio Mayor were candidates voted for the position of member of the National Assembly in
the first district of Tayabas. The petitioner was proclaimed member-elect for the said district for
receiving the most number of votes and thereafter took his oath in office. A Motion of Protest
was filed by Ynsua against the election of the petitioner. The petitioner countered this with a
Motion to Dismiss the Protest which was denied by the Electoral Commission.
ISSUES: Whether the Supreme Court has jurisdiction over the Electoral Commission and the
subject matter of the controversy; and
Whether the said Electoral Commission acted without or in excess of its jurisdiction in assuming
cognizance of the protest filed over the election of herein petitioner.
HELD: The National Assembly operates as a check on the Executive in the sense that its
consent through its Commission on Appointments is necessary in the appointments of certain
officers; and the concurrence of a majority of all its members is essential to the conclusion of
treaties. Furthermore, its power to determine what courts other than the Supreme Court shall be
established, to define their jurisdiction and to appropriate funds for their support, the National
Assembly controls the judicial department to a certain extent. The Assembly also exercises the
judicial power of trying impeachments. The Judiciary, in turn, with the Supreme Court as the
final arbiter effectively checks the other departments in the exercise of its power to determine
the law, and hence to declare executive and legislative acts void if violative of the Constitution.
This power of has been stated in Section 2, Article VIII of the Constitution.
Section 4, Article VI of the Constitution provides that “x x x The Electoral Commission shall be
the sole judge of all contests relating to the election, returns and qualifications of the members
of the National Assembly.” In view of the deliberations of the framers of the Constitution, it is
held that the Electoral Commission was acting within the legitimate exercise of its constitutional
prerogative in assuming to take cognizance of the protest filed by the respondent Ynsua. The
petition of writ of prohibition against the Electoral Commission is hereby denied.

2. G.R. No. 92024 November 9, 1990

CONGRESSMAN ENRIQUE T. GARCIA (Second District of Bataan), petitioner,
vs.
THE BOARD OF INVESTMENTS, THE DEPARTMENT OF TRADE AND INDUSTRY, LUZON
PETROCHEMICAL CORPORATION, and PILIPINAS SHELL CORPORATION, respondents.
Abraham C. La Vina for petitioner.
Sycip, Salazar, Hernandez & Gatmaitan for Luzon Petrochemical Corporation.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for Pilipinas Shell Petroleum
Corporation.

GUTIERREZ, JR., J.:

This is a petition to annul and set aside the decision of the Board of Investments
(BOI)/Department of Trade and Industry (DTI) approving the transfer of the site of the proposed
petrochemical plant from Bataan to Batangas and the shift of feedstock for that plant from
naphtha only to naphtha and/or liquefied petroleum gas (LPG).
This petition is a sequel to the petition in G.R. No. 88637 entitled "Congressman Enrique T.
Garcia v. the Board of Investments", September 7, 1989, where this Court issued a decision,
ordering the BOI as follows:
WHEREFORE, the petition for certiorari is granted. The Board of Investments is
ordered: (1) to publish the amended application for registration of the Bataan
Petrochemical Corporation, (2) to allow the petitioner to have access to its
records on the original and amended applications for registration, as a
petrochemical manufacturer, of the respondent Bataan Petrochemical
Corporation, excluding, however, privileged papers containing its trade secrets
and other business and financial information, and (3) to set for hearing the
petitioner's opposition to the amended application in order that he may present at
such hearing all the evidence in his possession in support of his opposition to the
transfer of the site of the BPC petrochemical plant to Batangas province. The
hearing shall not exceed a period of ten (10) days from the date fixed by the BOI,
notice of which should be served by personal service to the petitioner through
counsel, at least three (3) days in advance. The hearings may be held from day
to day for a period of ten (10) days without postponements. The petition for a writ
of prohibition or preliminary injunction is denied. No costs. (Rollo, pages 450-
451)
However, acting on the petitioner's motion for partial reconsideration asking that we rule on the
import of P.D. Nos. 949 and 1803 and on the foreign investor's claim of right of final choice of
plant site, in the light of the provisions of the Constitution and the Omnibus Investments Code of
1987, this Court on October 24, 1989, made the observation that P.D. Nos. 949 and 1803 "do
not provide that the Limay site should be the only petrochemical zone in the country, nor prohibit
the establishment of a petrochemical plant elsewhere in the country, that the establishment of a
petrochemical plant in Batangas does not violate P.D. No. 949 and P.D. No. 1803.
Our resolution skirted the issue of whether the investor given the initial inducements and other
circumstances surrounding its first choice of plant site may change it simply because it has the
final choice on the matter. The Court merely ruled that the petitioner appears to have lost
interest in the case by his failure to appear at the hearing that was set by the BOI after receipt of
the decision, so he may be deemed to have waived the fruit of the judgment. On this ground,
the motion for partial reconsideration was denied.
A motion for reconsideration of said resolution was filed by the petitioner asking that we resolve
the basic issue of whether or not the foreign investor has the right of final choice of plant site;
that the non-attendance of the petitioner at the hearing was because the decision was not yet
final and executory; and that the petitioner had not therefor waived the right to a hearing before
the BOI.
In the Court's resolution dated January 17, 1990, we stated:
Does the investor have a "right of final choice" of plant site? Neither under the
1987 Constitution nor in the Omnibus Investments Code is there such a 'right
of final choice.' In the first place, the investor's choice is subject to processing
and approval or disapproval by the BOI (Art. 7, Chapter II, Omnibus Investments
Code). By submitting its application and amended application to the BOI for
approval, the investor recognizes the sovereign prerogative of our Government,
through the BOI, to approve or disapprove the same after determining whether its
proposed project will be feasible, desirable and beneficial to our country. By
asking that his opposition to the LPC's amended application be heard by the BOI,
the petitioner likewise acknowledges that the BOI, not the investor, has the last
word or the "final choice" on the matter.
Secondly, as this case has shown, even a choice that had been approved by the
BOI may not be 'final', for supervening circumstances and changes in the
conditions of a place may dictate a corresponding change in the choice of plant
site in order that the project will not fail. After all, our country will benefit only
when a project succeeds, not when it fails. (Rollo, pp. 538-539)
Nevertheless, the motion for reconsideration of the petitioner was denied.
A minority composed of Justices Melencio-Herrera, Gancayco, Sarmiento and
this ponente voted to grant the motion for reconsideration stating that the hearing set by the BOI
was premature as the decision of the Court was not yet final and executory; that as contended
by the petitioner the Court must first rule on whether or not the investor has the right of final
choice of plant site for if the ruling is in the affirmative, the hearing would be a useless exercise;
that in the October 19, 1989 resolution, the Court while upholding validity of the transfer of the
plant site did not rule on the issue of who has the final choice; that they agree with the
observation of the majority that "the investor has no final choice either under the 1987
Constitution or in the Omnibus Investments Code and that it is the BOI who decides for the
government" and that the plea of the petitioner should be granted to give him the chance to
show the justness of his claim and to enable the BOI to give a second hard look at the matter.
Thus, the herein petition which relies on the ruling of the Court in the resolution of January 17,
1990 in G.R. No. 88637 that the investor has no right of final choice under the 1987 Constitution
and the Omnibus Investments Code.
Under P.D. No. 1803 dated January 16, 1981, 576 hectares of the public domain located in
Lamao, Limay, Bataan were reserved for the Petrochemical Industrial Zone under the
administration, management, and ownership of the Philippine National Oil Company (PNOC).
The Bataan Refining Corporation (BRC) is a wholly government owned corporation, located at
Bataan. It produces 60% of the national output of naphtha.
Taiwanese investors in a petrochemical project formed the Bataan Petrochemical Corporation
(BPC) and applied with BOI for registration as a new domestic producer of petrochemicals. Its
application specified Bataan as the plant site. One of the terms and conditions for registration of
the project was the use of "naphtha cracker" and "naphtha" as feedstock or fuel for its
petrochemical plant. The petrochemical plant was to be a joint venture with PNOC. BPC was
issued a certificate of registration on February 24, 1988 by BOI.
BPC was given pioneer status and accorded fiscal and other incentives by BOI, like: (1)
exemption from taxes on raw materials, (2) repatriation of the entire proceeds of liquidation
investments in currency originally made and at the exchange rate obtaining at the time of
repatriation; and (3) remittance of earnings on investments. As additional incentive, the House
of Representatives approved a bill introduced by the petitioner eliminating the 48% ad
valoremtax on naphtha if and when it is used as raw materials in the petrochemical plant. (G.R.
No. 88637, September 7, 1989, pp. 2-3. Rollo, pp. 441-442)
However, in February, 1989, A.T. Chong, chairman of USI Far East Corporation, the major
investor in BPC, personally delivered to Trade Secretary Jose Concepcion a letter dated
January 25, 1989 advising him of BPC's desire to amend the original registration certification of
its project by changing the job site from Limay, Bataan, to Batangas. The reason adduced for
the transfer was the insurgency and unstable labor situation, and the presence in Batangas of a
huge liquefied petroleum gas (LPG) depot owned by the Philippine Shell Corporation.
The petitioner vigorously opposed the proposal and no less than President Aquino expressed
her preference that the plant be established in Bataan in a conference with the Taiwanese
investors, the Secretary of National Defense and The Chief of Staff of the Armed Forces.
Despite speeches in the Senate and House opposing the Transfer of the project to Batangas,
BPC filed on April 11, 1989 its request for approval of the amendments. Its application is as
follows: "(l) increasing the investment amount from US $220 million to US $320 million; (2)
increasing the production capacity of its naphtha cracker, polythylene plant and polypropylene
plant; (3) changing the feedstock from naphtha only to "naphtha and/or liquefied petroleum gas;"
and (4) transferring the job site from Limay, Bataan, to Batangas. (Annex B to Petition; Rollo, p.
25)
Notwithstanding opposition from any quarters and the request of the petitioner addressed to
Secretary Concepcion to be furnished a copy of the proposed amendment with its attachments
which was denied by the BOI on May 25, 1989, BOI approved the revision of the registration of
BPC's petrochemical project. (Petition, Annex F; Rollo, p. 32; See pp. 4 to 6, Decision in G.R.
No. 88637; supra.)
BOI Vice-Chairman Tomas I. Alcantara testifying before the Committee on Ways and Means of
the Senate asserted that:
The BOI has taken a public position preferring Bataan over Batangas as the site
of the petrochemical complex, as this would provide a better distribution of
 industries around the Metro Manila area. ... In advocating the choice of Bataan
as the project site for the petrochemical complex, the BOI, however, made it
clear, and I would like to repeat this that the BOI made it clear in its view that the
BOI or the government for that matter could only recomend as to where the
project should be located. The BOI recognizes and respect the principle that the
final chouce is still with the proponent who would in the final analysis provide the
funding or risk capital for the project. (Petition, P. 13; Annex D to the petition)
This position has not been denied by BOI in its pleadings in G.R. No. 88637 and in the present
petition.
Section 1, Article VIII of the 1987 Constitution provides:
SECTION 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
There is before us an actual controversy whether the petrochemical plant should remain in
Bataan or should be transferred to Batangas, and whether its feedstock originally of naphtha
only should be changed to naphtha and/or liquefied petroleum gas as the approved amended
application of the BPC, now Luzon Petrochemical Corporation (LPC), shows. And in the light of
the categorical admission of the BOI that it is the investor who has the final choice of the site
and the decision on the feedstock, whether or not it constitutes a grave abuse of discretion for
the BOI to yield to the wishes of the investor, national interest notwithstanding.
We rule that the Court has a constitutional duty to step into this controversy and determine the
paramount issue. We grant the petition.
First, Bataan was the original choice as the plant site of the BOI to which the BPC agreed. That
is why it organized itself into a corporation bearing the name Bataan. There is available 576
hectares of public land precisely reserved as the petrochemical zone in Limay, Bataan under
P.D. No. 1803. There is no need to buy expensive real estate for the site unlike in the proposed
transfer to Batangas. The site is the result of careful study long before any covetous interests
intruded into the choice. The site is ideal. It is not unduly constricted and allows for expansion.
The respondents have not shown nor reiterated that the alleged peace and order situation in
Bataan or unstable labor situation warrant a transfer of the plant site to Batangas. Certainly,
these were taken into account when the firm named itself Bataan Petrochemical Corporation.
Moreover, the evidence proves the contrary.
Second, the BRC, a government owned Filipino corporation, located in Bataan produces 60% of
the national output of naphtha which can be used as feedstock for the plant in Bataan. It can
provide the feedstock requirement of the plant. On the other hand, the country is short of LPG
and there is need to import the same for use of the plant in Batangas. The local production
thereof by Shell can hardly supply the needs of the consumers for cooking purposes. Scarce
dollars will be diverted, unnecessarily, from vitally essential projects in order to feed the
furnaces of the transferred petrochemical plant.
Third, naphtha as feedstock has been exempted by law from the ad valorem tax by the approval
of Republic Act No. 6767 by President Aquino but excluding LPG from exemption from ad
valorem tax. The law was enacted specifically for the petrochemical industry. The policy
determination by both Congress and the President is clear. Neither BOI nor a foreign investor
should disregard or contravene expressed policy by shifting the feedstock from naphtha to LPG.
Fourth, under Section 10, Article XII of the 1987 Constitution, it is the duty of the State to
"regulate and exercise authority over foreign investments within its national jurisdiction and in
accordance with its national goals and priorities." The development of a self-reliant and
independent national economy effectively controlled by Filipinos is mandated in Section 19,
Article II of the Constitution.
In Article 2 of the Omnibus Investments Code of 1987 "the sound development of the national
economy in consonance with the principles and objectives of economic nationalism" is the set
goal of government.
Fifth, with the admitted fact that the investor is raising the greater portion of the capital for the
project from local sources by way of loan which led to the so-called "petroscam scandal", the
capital requirements would be greatly minimized if LPC does not have to buy the land for the
project and its feedstock shall be limited to naphtha which is certainly more economical, more
readily available than LPG, and does not have to be imported.
Sixth, if the plant site is maintained in Bataan, the PNOC shall be a partner in the venture to the
great benefit and advantage of the government which shall have a participation in the
management of the project instead of a firm which is a huge multinational corporation.
In the light of all the clear advantages manifest in the plant's remaining in Bataan, practically
nothing is shown to justify the transfer to Batangas except a near-absolute discretion given by
BOI to investors not only to freely choose the site but to transfer it from their own first choice for
reasons which remain murky to say the least.
And this brings us to a prime consideration which the Court cannot rightly ignore.
Section 1, Article XII of the Constitution provides that:
xxx xxx xxx
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full
and efficient use of human and natural resources, and which are competitive in
both domestic and foreign markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade practices.
xxx xxx xxx
Every provision of the Constitution on the national economy and patrimony is infused with the
spirit of national interest. The non-alienation of natural resources, the State's full control over the
development and utilization of our scarce resources, agreements with foreigners being based
on real contributions to the economic growth and general welfare of the country and the
regulation of foreign investments in accordance with national goals and priorities are too explicit
not to be noticed and understood.
A petrochemical industry is not an ordinary investment opportunity. It should not be treated like
a garment or embroidery firm, a shoe-making venture, or even an assembler of cars or
manufacturer of computer chips, where the BOI reasoning may be accorded fuller faith and
credit. The petrochemical industry is essential to the national interest. In other ASEAN countries
like Indonesia and Malaysia, the government superintends the industry by controlling the
upstream or cracker facility.
In this particular BPC venture, not only has the Government given unprecedented favors,
among them:
(1) For an initial authorized capital of only P20 million, the Central Bank gave an
eligible relending credit or relending facility worth US $50 million and a debt to
swap arrangement for US $30 million or a total accommodation of US $80 million
which at current exchange rates is around P2080 million.
(2) A major part of the company's capitalization shall not come from foreign
sources but from loans, initially a Pl Billion syndicated loan, to be given by both
government banks and a consortium of Philippine private banks or in common
parlance, a case of 'guiniguisa sa sariling manteca.'
(3) Tax exemptions and privileges were given as part of its 'preferred pioneer
status.'
(4) Loan applications of other Philippine firms will be crowded out of the Asian
Development Bank portfolio because of the petrochemical firm's massive loan
request. (Taken from the proceedings before the Senate Blue Ribbon
Committee).
but through its regulatory agency, the BOI, it surrenders even the power to make a company
abide by its initial choice, a choice free from any suspicion of unscrupulous machinations and a
choice which is undoubtedly in the best interests of the Filipino people.
The Court, therefore, holds and finds that the BOI committed a grave abuse of discretion in
approving the transfer of the petrochemical plant from Bataan to Batangas and authorizing the
change of feedstock from naphtha only to naphtha and/or LPG for the main reason that the final
say is in the investor all other circumstances to the contrary notwithstanding. No cogent
advantage to the government has been shown by this transfer. This is a repudiation of the
independent policy of the government expressed in numerous laws and the Constitution to run
its own affairs the way it deems best for the national interest.
One can but remember the words of a great Filipino leader who in part said he would not mind
having a government run like hell by Filipinos than one subservient to foreign dictation. In this
case, it is not even a foreign government but an ordinary investor whom the BOI allows to
dictate what we shall do with our heritage.
WHEREFORE, the petition is hereby granted. The decision of the respondent Board of
Investments approving the amendment of the certificate of registration of the Luzon
Petrochemical Corporation on May 23, 1989 under its Resolution No. 193, Series of 1989,
(Annex F to the Petition) is SET ASIDE as NULL and VOID. The original certificate of
registration of BPC' (now LPC) of February 24, 1988 with Bataan as the plant site and naphtha
as the feedstock is, therefore, ordered maintained.
SO ORDERED.
Cruz, Gancayco, Padilla, Bidin, Sarmiento and Medialdea, JJ., concur.
Fernan, C.J., Paras, JJ., took no part.
Feliciano, J., is on leave.

3. G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors,
and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE
SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO,
AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their
parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by
her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA,
BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE
PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA
VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents
FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN
T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING,
minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and
THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents
BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA,
minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO,
JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents
MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all
surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT,
minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented
by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE
ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of
the Department of Environment and Natural Resources, and THE HONORABLE
ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful
ecology which the petitioners dramatically associate with the twin concepts of "inter-
generational responsibility" and "inter-generational justice." Specifically, it touches on the issue
of whether the said petitioners have a cause of action to "prevent the misappropriation or
impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66
(Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The
principal plaintiffs therein, now the principal petitioners, are all minors duly represented and
joined by their respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for
the purpose of, inter alia, engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant was the Honorable Fulgencio S.
Factoran, Jr., then Secretary of the Department of Environment and Natural Resources (DENR).
His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the petitioners.1 The complaint2 was instituted as a
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource
treasure that is the country's virgin tropical forests." The same was filed for themselves and
others who are equally concerned about the preservation of said resource but are "so numerous
that it is impracticable to bring them all before the Court." The minors further asseverate that
they "represent their generation as well as generations yet unborn."4 Consequently, it is prayed
for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in

his behalf to —

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or

approving new timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100
islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush
and verdant rainforests in which varied, rare and unique species of flora and fauna may be
found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable;
they are also the habitat of indigenous Philippine cultures which have existed, endured and
flourished since time immemorial; scientific evidence reveals that in order to maintain a
balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio
of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and disturbance of this balance
as a consequence of deforestation have resulted in a host of environmental tragedies, such as
(a) water shortages resulting from drying up of the water table, otherwise known as the
"aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result
of the intrusion therein of salt water, incontrovertible examples of which may be found in the
island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded
estimated at one billion (1,000,000,000) cubic meters per annum — approximately the size of
the entire island of Catanduanes, (d) the endangering and extinction of the country's unique,
rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities,
including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and
seabeds and consequential destruction of corals and other aquatic life leading to a critical
reduction in marine resource productivity, (g) recurrent spells of drought as is presently
experienced by the entire country, (h) increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the
absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of
multi-billion peso dams constructed and operated for the purpose of supplying water for
domestic uses, irrigation and the generation of electric power, and (k) the reduction of the
earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic
climatic changes such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be submitted
as a matter of judicial notice. This notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and film evidence in the course of the
trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million
hectares of rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2
million hectares of said rainforests or four per cent (4.0%) of the country's land
area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine
archipelago and about 3.0 million hectares of immature and uneconomical
secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber
license agreements ('TLA's') to various corporations to cut the aggregate area of
3.89 million hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto
attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or
25 hectares per hour — nighttime, Saturdays, Sundays and holidays included —
the Philippines will be bereft of forest resources after the end of this ensuing
decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation
and to generations yet unborn are evident and incontrovertible. As a matter of
fact, the environmental damages enumerated in paragraph 6 hereof are already
being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs
— especially plaintiff minors and their successors — who may never see, use,
benefit from and enjoy this rare and unique natural resource treasure.
This act of defendant constitutes a misappropriation and/or impairment of the
natural resource property he holds in trust for the benefit of plaintiff minors and
succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful
ecology and are entitled to protection by the State in its capacity as the parens
patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's
office. On March 2, 1990, plaintiffs served upon defendant a final demand to
cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex
"B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act
violative of the rights of plaintiffs, especially plaintiff minors who may be left with
a country that is desertified (sic), bare, barren and devoid of the wonderful flora,
fauna and indigenous cultures which the Philippines had been abundantly
blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary

to the public policy enunciated in the Philippine Environmental Policy which, in
pertinent part, states that it is the policy of the State —

(a) to create, develop, maintain and improve conditions under which man and
nature can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life

of dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned

TLA's is contradictory to the Constitutional policy of the State to —

a. effect "a more equitable distribution of opportunities, income and wealth" and
"make full and efficient use of natural resources (sic)." (Section 1, Article XII of
the Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)"
(Section 14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16, Article
II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind — the
natural law — and violative of plaintiffs' right to self-preservation and
perpetuation.
 22. There is no other plain, speedy and adequate remedy in law other than the
instant action to arrest the unabated hemorrhage of the country's vital life support
systems and continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the
complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against
him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the
legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion,
the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action,
(2) the motion is dilatory and (3) the action presents a justiciable question as it involves the
defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss.7 In the said order, not only was the defendant's claim — that the complaint states no
cause of action against him and that it raises a political question — sustained, the respondent
Judge further ruled that the granting of the relief prayed for would result in the impairment of
contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised
Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground
that the respondent Judge gravely abused his discretion in dismissing the action. Again, the
parents of the plaintiffs-minors not only represent their children, but have also joined the latter in
this case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to
submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a
Comment in behalf of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it
contains sufficient allegations concerning their right to a sound environment based on Articles
19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No. 192
creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a
balanced and healthful ecology, the concept of generational genocide in Criminal Law and the
concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural
law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No.
192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than
what is available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not contracts.
They likewise submit that even if TLAs may be considered protected by the said clause, it is well
settled that they may still be revoked by the State when the public interest so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their complaint a
specific legal right violated by the respondent Secretary for which any relief is provided by law.
They see nothing in the complaint but vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the petitioners to the "protection by the state in
its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause
of action. They then reiterate the theory that the question of whether logging should be
permitted in the country is a political question which should be properly addressed to the
executive or legislative branches of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for the passage of a bill
that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be
done by the State without due process of law. Once issued, a TLA remains effective for a
certain period of time — usually for twenty-five (25) years. During its effectivity, the same can
neither be revised nor cancelled unless the holder has been found, after due notice and
hearing, to have violated the terms of the agreement or other forestry laws and regulations.
Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite
hearing would be violative of the requirements of due process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted
Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did
not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a
class suit. The subject matter of the complaint is of common and general interest not just to
several, but to all citizens of the Philippines. Consequently, since the parties are so numerous,
it, becomes impracticable, if not totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and representative enough to ensure
the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class
suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil
case and in the instant petition, the latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they
represent their generation as well as generations yet unborn. We find no difficulty in ruling that
they can, for themselves, for others of their generation and for the succeeding generations, file a
class suit. Their personality to sue in behalf of the succeeding generations can only be based on
the concept of intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such
rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries,
wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well as future
generations. 10Needless to say, every generation has a responsibility to the next to preserve
that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the protection of that right for the generations
to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the
merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to
find for the petitioners and rule against the respondent Judge's challenged order for having
been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot
help but agree with the defendant. For although we believe that plaintiffs have
but the noblest of all intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified data. In fine, plaintiffs
fail to state a cause of action in its Complaint against the herein defendant.
 Furthermore, the Court firmly believes that the matter before it, being impressed
with political color and involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the sacred principle of
"Separation of Powers" of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient
definiteness a specific legal right involved or a specific legal wrong committed, and that the
complaint is replete with vague assumptions and conclusions based on unverified data. A
reading of the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right — the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly
provides:

Sec. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding
section of the same article:

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

While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated in the latter. Such a right belongs
to a different category of rights altogether for it concerns nothing less than self-preservation and
self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which
may even be said to predate all governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is
because of the well-founded fear of its framers that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day would not be too far when all
else would be lost not only for the present generation, but also for those to come — generations
which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment. During the debates on this right in one of the plenary sessions of the
1986 Constitutional Commission, the following exchange transpired between Commissioner
Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against

all forms of pollution — air, water and noise pollution?
 MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment

necessarily carries with it the correlative duty of not impairing the
same and, therefore, sanctions may be provided for impairment of
environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of
the country's forests.

Without such forests, the ecological or environmental balance would be irreversiby

disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to
health, as well as the other related provisions of the Constitution concerning the conservation,
development and utilization of the country's natural resources, 13 then President Corazon C.
Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly mandates
that the Department of Environment and Natural Resources "shall be the primary government
agency responsible for the conservation, management, development and proper use of the
country's environment and natural resources, specifically forest and grazing lands, mineral,
resources, including those in reservation and watershed areas, and lands of the public domain,
as well as the licensing and regulation of all natural resources as may be provided for by law in
order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present
and future generations of Filipinos." Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State to

ensure the sustainable use, development, management, renewal, and
conservation of the country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to
the development and the use of the country's natural resources, not only for the
present generation but for future generations as well. It is also the policy of the
state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and
conservation of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code
of 1987,15 specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of the
Filipino people, the full exploration and development as well as the judicious
disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources, consistent with the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment and the
objective of making the exploration, development and utilization of such natural
resources equitably accessible to the different segments of the present as well as
future generations.

(2) The State shall likewise recognize and apply a true value system that takes
into account social and environmental cost implications relative to the utilization,
development and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the
other hand, specifically speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher authority. Said section
provides:

Sec. 2. Mandate. — (1) The Department of Environment and Natural Resources

shall be primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the
State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve
as the bases for policy formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific
statutes already paid special attention to the "environmental right" of the present and future
generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No.
1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of
the State (a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic
and other requirements of present and future generations of Filipinos, and (c) to insure the
attainment of an environmental quality that is conducive to a life of dignity and well-being." 16 As
its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to
the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of 1987 — to protect and advance
the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect
or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the
TLAs, which they claim was done with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs
should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation of
said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint
fails to state a cause of action, 19 the question submitted to the court for resolution involves the
sufficiency of the facts alleged in the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such
alleged facts to be true, may the court render a valid judgment in accordance with the prayer in
the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary
should "exercise the utmost care and circumspection in passing upon a motion to dismiss on
the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself
stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-heading
CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their
rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It
bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the
need to implead, as party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis policies
already formulated and expressed in legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial
power or the impenetrable shield that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A.
Cruz, a distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power,
involving the settlement of conflicting rights as conferred as law. The second part
of the authority represents a broadening of judicial power to enable the courts of
justice to review what was before forbidden territory, to wit, the discretion of the
political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme
Court, the power to rule upon even the wisdom of the decisions of the executive
and the legislature and to declare their acts invalid for lack or excess of
jurisdiction because tainted with grave abuse of discretion. The catch, of course,
is the meaning of "grave abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable
and decisive. The reason is that, even if we were to assume that the issue
presented before us was political in nature, we would still not be precluded from
revolving it under the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. Article VII, Section 1, of the
Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch
our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all
existing timber license agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a
sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious
reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so, he
would have acted with utmost infidelity to the Government by providing undue and unwarranted
benefits and advantages to the timber license holders because he would have forever bound
the Government to strictly respect the said licenses according to their terms and conditions
regardless of changes in policy and the demands of public interest and welfare. He was aware
that as correctly pointed out by the petitioners, into every timber license must be read Section
20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may
amend, modify, replace or rescind any contract, concession, permit, licenses or
any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is
not a contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization

and disposition of forest resources to the end that public welfare is promoted. A
timber license is not a contract within the purview of the due process clause; it is
only a license or privilege, which can be validly withdrawn whenever dictated by
public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful,

and is not a contract between the authority, federal, state, or municipal, granting
it and the person to whom it is granted; neither is it property or a property right,
nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court
held that the granting of license does not create irrevocable rights, neither is it
property or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26

. . . Timber licenses, permits and license agreements are the principal

instruments by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. And it can hardly be
gainsaid that they merely evidence a privilege granted by the State to qualified
entities, and do not vest in the latter a permanent or irrevocable right to the
particular concession area and the forest products therein. They may be validly
amended, modified, replaced or rescinded by the Chief Executive when national
interests so require. Thus, they are not deemed contracts within the purview of
the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No.
705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October
27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

27
Sec. 10. No law impairing, the obligation of contracts shall be passed.

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case
does not involve a law or even an executive issuance declaring the cancellation or modification
of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the non-impairment clause.
This is because by its very nature and purpose, such as law could have only been passed in the
exercise of the police power of the state for the purpose of advancing the right of the people to a
balanced and healthful ecology, promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be

absolute. The same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral, safety and welfare. In
other words, the constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State, in the interest
of public health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine
American Life Insurance Co. vs. Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts
are normally matters of private and not of public concern. The general rule is that
both shall be free of governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if the citizen may at will
use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of
the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply
with respect to the prayer to enjoin the respondent Secretary from receiving, accepting,
processing, renewing or approving new timber licenses for, save in cases of renewal, no
contract would have as of yet existed in the other instances. Moreover, with respect to renewal,
the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their complaint to implead as defendants
the holders or grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason,
JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

EN BANC

4. [G.R. No. 122156. February 3, 1997]

MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM,

MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE
OF THE GOVERNMENT CORPORATE COUNSEL, respondents.
DECISION
BELLOSILLO, J.:

The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights,
privileges, and concessions covering the national economy and patrimony, the State shall give
preference to qualified Filipinos,[1] is invoked by petitioner in its bid to acquire 51% of the shares
of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but requires an implementing
legislation for its enforcement. Corollarily, they ask whether the 51% shares form part of the
national economy and patrimony covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System (GSIS),
pursuant to the privatization program of the Philippine Government under Proclamation No. 50
dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued and
outstanding shares of respondent MHC. The winning bidder, or the eventual strategic partner,
is to provide management expertise and/or an international marketing/reservation system, and
financial support to strengthen the profitability and performance of the Manila Hotel.[2] In a close
bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince
Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000
shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its
hotel operator, which bid for the same number of shares at P44.00 per share, or P2.42 more
than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state -

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -

1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995
(reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of
Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management
Contract, International Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila Hotel x x x x

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following
conditions are met:

a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset
to November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC
(Office of the Government Corporate Counsel) are obtained.[3]

Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the
execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28
September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad.[4] In a
subsequent letter dated 10 October 1995 petitioner sent a managers check issued by Philtrust
Bank for Thirty-three Million Pesos (P33,000,000.00) as Bid Security to match the bid of the
Malaysian Group, Messrs. Renong Berhad x x x x[5] which respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the
tender of the matching bid and that the sale of 51% of the MHC may be hastened by respondent
GSIS and consummated with Renong Berhad, petitioner came to this Court on prohibition and
mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining
respondents from perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was
referred to it by the First Division. The case was then set for oral arguments with former Chief
Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and
submits that the Manila Hotel has been identified with the Filipino nation and has practically
become a historical monument which reflects the vibrancy of Philippine heritage and culture. It
is a proud legacy of an earlier generation of Filipinos who believed in the nobility and
sacredness of independence and its power and capacity to release the full potential of the
Filipino people. To all intents and purposes, it has become a part of the national
patrimony.[6] Petitioner also argues that since 51% of the shares of the MHC carries with it the
ownership of the business of the hotel which is owned by respondent GSIS, a government-
owned and controlled corporation, the hotel business of respondent GSIS being a part of the
tourism industry is unquestionably a part of the national economy. Thus, any transaction
involving 51% of the shares of stock of the MHC is clearly covered by the term national
economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and
its business also unquestionably part of the national economy petitioner should be preferred
after it has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for
any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
the other Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share.[8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987
Constitution is merely a statement of principle and policy since it is not a self-executing
provision and requires implementing legislation(s) x x x x Thus, for the said provision to operate,
there must be existing laws to lay down conditions under which business may be done.[9]
Second, granting that this provision is self-executing, Manila Hotel does not fall under the
term national patrimony which only refers to lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as
cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel and the events
that have transpired therein which make the hotel historic, these alone do not make the hotel fall
under the patrimony of the nation. What is more, the mandate of the Constitution is addressed
to the State, not to respondent GSIS which possesses a personality of its own separate and
distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional
provision invoked is still inapplicable since what is being sold is only 51% of the outstanding
shares of the corporation, not the hotel building nor the land upon which the building
stands. Certainly, 51% of the equity of the MHC cannot be considered part of the national
patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the
Constitution, petitioner should have questioned it right from the beginning and not after it had
lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which
provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price per share, is
misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet
arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the
Block of Shares. Thus the submission by petitioner of a matching bid is premature since
Renong Berhad could still very well be awarded the block of shares and the condition giving rise
to the exercise of the privilege to submit a matching bid had not yet taken place.
 Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since
respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it
did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus
should fail as petitioner has no clear legal right to what it demands and respondents do not have
an imperative duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined as the fundamental and paramount law of
the nation.[10] It prescribes the permanent framework of a system of government, assigns to the
different departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in other words is that it
is a supreme law to which all other laws must conform and in accordance with which all private
rights must be determined and all public authority administered.[11] Under the doctrine of
constitutional supremacy, if a law or contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the
nation, it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their
provisions command the legislature to enact laws and carry out the purposes of the framers who
merely establish an outline of government providing for the different departments of the
governmental machinery and securing certain fundamental and inalienable rights of
citizens.[12] A provision which lays down a general principle, such as those found in Art. II of the
1987 Constitution, is usually not self-executing. But a provision which is complete in itself and
becomes operative without the aid of supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-
executing. Thus a constitutional provision is self-executing if the nature and extent of the right
conferred and the liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no language indicating
that the subject is referred to the legislature for action.[13]
As against constitutions of the past, modern constitutions have been generally drafted upon
a different principle and have often become in effect extensive codes of laws intended to
operate directly upon the people in a manner similar to that of statutory enactments, and the
function of constitutional conventions has evolved into one more like that of a legislative
body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate of
the fundamental law.[14] This can be cataclysmic. That is why the prevailing view is, as it has
always been, that -

x x x x in case of doubt, the Constitution should be considered self-executing rather than non-
self-executing x x x x Unless the contrary is clearly intended, the provisions of the Constitution
should be considered self-executing, as a contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective. These provisions would be subordinated to
the will of the lawmaking body, which could make them entirely meaningless by simply refusing
to pass the needed implementing statute.[15]

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly
not self-executing, as they quote from discussions on the floor of the 1986 Constitutional
Commission -
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the
Committee on Style. If the wording of PREFERENCE is given to QUALIFIED
FILIPINOS, can it be understood as a preference to qualified Filipinos vis-a-
 vis Filipinos who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word
QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against whom? As
against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word QUALIFIED
because the existing laws or prospective laws will always lay down conditions under
which business may be done. For example, qualifications on capital, qualifications on
the setting up of other financial structures, et cetera (underscoring supplied by
respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it
appear that it is non-self-executing but simply for purposes of style. But, certainly, the legislature
is not precluded from enacting further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left to the legislature
without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to
facilitate the exercise of powers directly granted by the constitution, further the operation of such
a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for
the protection of the rights secured or the determination thereof, or place reasonable safeguards
around the exercise of the right. The mere fact that legislation may supplement and add to or
prescribe a penalty for the violation of a self-executing constitutional provision does not render
such a provision ineffective in the absence of such legislation. The omission from a constitution
of any express provision for a remedy for enforcing a right or liability is not necessarily an
indication that it was not intended to be self-executing. The rule is that a self-executing provision
of the constitution does not necessarily exhaust legislative power on the subject, but any
legislation must be in harmony with the constitution, further the exercise of constitutional right
and make it more available.[17] Subsequent legislation however does not necessarily mean that
the subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art.
XII is implied from the tenor of the first and third paragraphs of the same section which
undoubtedly are not self-executing.[18] The argument is flawed. If the first and third paragraphs
are not self-executing because Congress is still to enact measures to encourage the formation
and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still
needs legislation to regulate and exercise authority over foreign investments within its national
jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph
can only be self-executing as it does not by its language require any legislation in order to give
preference to qualified Filipinos in the grant of rights, privileges and concessions covering the
national economy and patrimony. A constitutional provision may be self-executing in one part
and non-self-executing in another.[19]
Even the cases cited by respondents holding that certain constitutional provisions are
merely statements of principles and policies, which are basically not self-executing and only
placed in the Constitution as moral incentives to legislation, not as judicially enforceable rights -
are simply not in point. Basco v. Philippine Amusements and Gaming Corporation[20] speaks of
constitutional provisions on personal dignity,[21] the sanctity of family life,[22] the vital role of the
youth in nation-building,[23] the promotion of social justice,[24] and the values of
education.[25] Tolentino v. Secretary of Finance[26] refers to constitutional provisions on social
justice and human rights[27] and on education.[28] Lastly, Kilosbayan, Inc. v. Morato[29] cites
provisions on the promotion of general welfare,[30] the sanctity of family life,[31] the vital role of
the youth in nation-building[32] and the promotion of total human liberation and
development.[33] A reading of these provisions indeed clearly shows that they are not judicially
enforceable constitutional rights but merely guidelines for legislation. The very terms of the
provisions manifest that they are only principles upon which legislations must be based. Res
ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory,
positive command which is complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per se judicially enforceable. When our
Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national
economy and patrimony, the State shall give preference to qualified Filipinos, it means just that -
qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in
certain specified circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject; consequently, if there is no
statute especially enacted to enforce such constitutional right, such right enforces itself by its
own inherent potency and puissance, and from which all legislations must take their
bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission[34] explains -

The patrimony of the Nation that should be conserved and developed refers not only
to our rich natural resources but also to the cultural heritage of our race. It also refers to
our intelligence in arts, sciences and letters. Therefore, we should develop not only our
lands, forests, mines and other natural resources but also the mental ability or faculty of
our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage.[35] When the Constitution speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very well used the term natural
resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it
was restrictively an American hotel when it first opened in 1912, it immediately evolved to be
truly Filipino. Formerly a concourse for the elite, it has since then become the venue of various
significant events which have shaped Philippine history. It was called the Cultural Center of the
1930s. It was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine Government it plays host
to dignitaries and official visitors who are accorded the traditional Philippine hospitality.[36]
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and
Memory of a City.[37] During World War II the hotel was converted by the Japanese Military
Administration into a military headquarters. When the American forces returned to recapture
Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places
for their final stand. Thereafter, in the 1950s and 1960s, the hotel became the center of political
activities, playing host to almost every political convention. In 1970 the hotel reopened after a
renovation and reaped numerous international recognitions, an acknowledgment of the Filipino
talent and ingenuity. In 1986 the hotel was the site of a failed coup d etat where an aspirant for
vice-president was proclaimed President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs
and failures, loves and frustrations of the Filipinos; its existence is impressed with public
interest; its own historicity associated with our struggle for sovereignty, independence and
nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For
sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will
have actual control and management of the hotel. In this instance, 51% of the MHC cannot be
disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we
cannot sustain respondents claim that the Filipino First Policy provision is not applicable since
what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands.[38]
 The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also
includes corporations at least 60% of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the
amendment would consist in substituting the words QUALIFIED FILIPINOS with the
following: CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to
raise a question. Suppose it is a corporation that is 80-percent Filipino, do we not give
it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a
corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference
should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS may refer
only to individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the amendment be read again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY,
THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. And the word
Filipinos here, as intended by the proponents, will include not only individual Filipinos
but also Filipino-controlled entities or entities fully-controlled by Filipinos.[40]
The phrase preference to qualified Filipinos was explained thus -
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please
restate his amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a
Filipino enterprise is also qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will
the Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
 MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called
Filipino First policy. That means that Filipinos should be given preference in the grant
of concessions, privileges and rights covering the national patrimony.[42]
The exchange of views in the sessions of the Constitutional Commission regarding the
subject provision was still further clarified by Commissioner Nolledo[43] -

Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It
is better known as the FILIPINO FIRST Policy x x x x This provision was never found in
previous Constitutions x x x x

The term qualified Filipinos simply means that preference shall be given to those citizens who
can make a viable contribution to the common good, because of credible competence and
efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino
citizens or organizations that are incompetent or inefficient, since such an indiscriminate
preference would be counterproductive and inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice has to be made
between a qualified foreigner and a qualified Filipino, the latter shall be chosen over the former.

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent
GSIS and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in
accordance with its own guidelines so that the sole inference here is that petitioner has been
found to be possessed of proven management expertise in the hotel industry, or it has
significant equity ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution by arguing that the
subject provision is not self-executory and requires implementing legislation is quite
disturbing. The attempt to violate a clear constitutional provision - by the government itself - is
only too distressing. To adopt such a line of reasoning is to renounce the duty to ensure
faithfulness to the Constitution. For, even some of the provisions of the Constitution which
evidently need implementing legislation have juridical life of their own and can be the source of
a judicial remedy. We cannot simply afford the government a defense that arises out of the
failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr.
Joaquin G. Bernas, S.J., on constitutional government is apt -

The executive department has a constitutional duty to implement laws, including the
Constitution, even before Congress acts - provided that there are discoverable legal standards
for executive action. When the executive acts, it must be guided by its own understanding of the
constitutional command and of applicable laws. The responsibility for reading and
understanding the Constitution and the laws is not the sole prerogative of Congress. If it were,
the executive would have to ask Congress, or perhaps the Court, for an interpretation every
time the executive is confronted by a constitutional command. That is not how constitutional
government operates.[45]

Respondents further argue that the constitutional provision is addressed to the State, not to
respondent GSIS which by itself possesses a separate and distinct personality. This argument
again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried
out with the prior approval of the State acting through respondent Committee on
Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the
sale of the assets of respondents GSIS and MHC a state action. In constitutional jurisprudence,
the acts of persons distinct from the government are considered state action covered by the
Constitution (1) when the activity it engages in is a public function; (2) when the government is
so significantly involved with the private actor as to make the government responsible for his
action; and, (3) when the government has approved or authorized the action. It is evident that
the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the
second and third categories of state action. Without doubt therefore the transaction, although
entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to
the constitutional command.[46]
When the Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three (3) divisions of
power - legislative, executive and judicial. Accordingly, a constitutional mandate directed to the
State is correspondingly directed to the three (3) branches of government. It is undeniable that
in this case the subject constitutional injunction is addressed among others to the Executive
Department and respondent GSIS, a government instrumentality deriving its authority from the
State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the
winning bidder. The bidding rules expressly provide that the highest bidder shall only be
declared the winning bidder after it has negotiated and executed the necessary contracts, and
secured the requisite approvals. Since the Filipino First Policy provision of the Constitution
bestows preference on qualified Filipinos the mere tending of the highest bid is not an
assurance that the highest bidder will be declared the winning bidder.Resultantly, respondents
are not bound to make the award yet, nor are they under obligation to enter into one with the
highest bidder. For in choosing the awardee respondents are mandated to abide by the dictates
of the 1987 Constitution the provisions of which are presumed to be known to all the bidders
and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is,
as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding
rules be nullified for being violative of the Constitution. It is a basic principle in constitutional law
that all laws and contracts must conform with the fundamental law of the land. Those which
violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that
have validly submitted bids provided that these Qualified Bidders are willing to match the
highest bid in terms of price per share.[47] Certainly, the constitutional mandate itself is reason
enough not to award the block of shares immediately to the foreign bidder notwithstanding its
submission of a higher, or even the highest, bid. In fact, we cannot conceive of
a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national economy and
patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have
to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a
foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning
to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be
expressly stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent to
be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign
investors. But the Constitution and laws of the Philippines are understood to be always open to
public scrutiny. These are given factors which investors must consider when venturing into
business in a foreign jurisdiction. Any person therefore desiring to do business in the Philippines
or with any of its agencies or instrumentalities is presumed to know his rights and obligations
under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to
Renong Berhad since petitioner was well aware from the beginning that a foreigner could
participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to
the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the
qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before
us, while petitioner was already preferred at the inception of the bidding because of the
constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus
it did not have the right or personality then to compel respondent GSIS to accept its earlier
bid. Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioners matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the
award has been finally made. To insist on selling the Manila Hotel to foreigners when there is a
Filipino group willing to match the bid of the foreign group is to insist that government be treated
as any other ordinary market player, and bound by its mistakes or gross errors of judgment,
regardless of the consequences to the Filipino people. The miscomprehension of the
Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an
opportunity to do so than let the government develop the habit of forgetting that the Constitution
lays down the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to
the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block
of shares of MHC and to execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the Constitution as
well. The refusal of respondent GSIS to execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly
constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987
Constitution not merely to be used as a guideline for future legislation but primarily to be
enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will
never shun, under any reasonable circumstance, the duty of upholding the majesty of the
Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this
Court to impede and diminish, much less undermine, the influx of foreign investments. Far from
it, the Court encourages and welcomes more business opportunities but avowedly sanctions the
preference for Filipinos whenever such preference is ordained by the Constitution. The position
of the Court on this matter could have not been more appropriately articulated by Chief Justice
Narvasa -

As scrupulously as it has tried to observe that it is not its function to substitute its judgment for
that of the legislature or the executive about the wisdom and feasibility of legislation economic in
nature, the Supreme Court has not been spared criticism for decisions perceived as obstacles
to economic progress and development x x x x in connection with a temporary injunction issued
by the Courts First Division against the sale of the Manila Hotel to a Malaysian Firm and its
partner, certain statements were published in a major daily to the effect that that injunction again
demonstrates that the Philippine legal system can be a major obstacle to doing business here.

Let it be stated for the record once again that while it is no business of the Court to intervene in
contracts of the kind referred to or set itself up as the judge of whether they are viable or
attainable, it is its bounden duty to make sure that they do not violate the Constitution or the
laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or
excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and
ill-informed criticism.[48]

Privatization of a business asset for purposes of enhancing its business viability and
preventing further losses, regardless of the character of the asset, should not take precedence
over non-material values. A commercial, nay even a budgetary, objective should not be pursued
at the expense of national pride and dignity. For the Constitution enshrines higher and nobler
non-material values. Indeed, the Court will always defer to the Constitution in the proper
governance of a free society; after all, there is nothing so sacrosanctin any economic policy as
to draw itself beyond judicial review when the Constitution is involved.[49]
Nationalism is inherent in the very concept of the Philippines being a democratic and
republican state, with sovereignty residing in the Filipino people and from whom all government
authority emanates. In nationalism, the happiness and welfare of the people must be the
goal. The nation-state can have no higher purpose. Any interpretation of any constitutional
provision must adhere to such basic concept. Protection of foreign investments, while laudible,
is merely a policy. It cannot override the demands of nationalism.[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold
to the highest bidder solely for the sake of privatization. We are not talking about an ordinary
piece of property in a commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines as a nation. We are
talking about a hotel where heads of states would prefer to be housed as a strong manifestation
of their desire to cloak the dignity of the highest state function to their official visits to the
Philippines. Thus the Manila Hotel has played and continues to play a significant role as an
authentic repository of twentieth century Philippine history and culture. In this sense, it has
become truly a reflection of the Filipino soul - a place with a history of grandeur; a most
historical setting that has played a part in the shaping of a country.[51]
This Court cannot extract rhyme nor reason from the determined efforts of respondents to
sell the historical landmark - this Grand Old Dame of hotels in Asia - to a total stranger. For,
indeed, the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be
less than mephistophelian for it is, in whatever manner viewed, a veritable alienation of a
nations soul for some pieces of foreign silver. And so we ask: What advantage, which cannot be
equally drawn from a qualified Filipino, can be gained by the Filipinos if Manila Hotel - and all
that it stands for - is sold to a non-Filipino? How much of national pride will vanish if the nations
cultural heritage is entrusted to a foreign entity? On the other hand, how much dignity will be
preserved and realized if the national patrimony is safekept in the hands of a qualified, zealous
and well-meaning Filipino? This is the plain and simple meaning of the Filipino First
Policy provision of the Philippine Constitution. And this Court, heeding the clarion call of the
Constitution and accepting the duty of being the elderly watchman of the nation, will continue to
respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling
51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the
matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject
51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to
execute the necessary agreements and documents to effect the sale, to issue the necessary
clearances and to do such other acts and deeds as may be necessary for the purpose.
SO ORDERED.

267 SCRA 402

3 February 1997 En Banc

By: Marge: Margarita M. Gutierrez

Alternative title: manila prince hotel petitioner vs. government service insurance system,
manila hotel corporation, committee on privatization and office of the government corporate
counsel

FACTS

The Respondent Government Service Insurance System (GSIS) in pursuant to the privatization
program of the Philippine Government under Proclamation No. 50 dated 8 December 1986,
decided to sell through public bidding 30% to 51% of the issued. In a close bidding held on 18
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a
Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid
for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.
Pending the declaration of Renong Berhad as the winning bidder/strategic partner of MHC,
petitioner matched the former’s bid prize also with Php 44.00 per share followed by a manager’s
check worth Php 33 million as Bid Security, but the GSIS refused to accept both the bid match
and the manager’s check.

The petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution “Filipino first
policy” and submits that the Manila Hotel has been identified with the Filipino nation and has
practically become a historical monument which reflects the vibrancy of Philippine heritage and
culture. To all intents and purposes, it has become a part of the national patrimony. Petitioner
also argues that since 51% of the shares of the MHC carries with it the ownership of the
business of the hotel which is owned by respondent GSIS, a government-owned and controlled
corporation, the hotel business of respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy.

ISSUE

Whether or not the provisions of Section 10, second paragraph, Article 11 of the 1987
Constitution is self executing or non self executing

If self executing: the sale of Manila Hotel to Renong Berhad is violative of the Constitutional
provision of Filipino First policy (Section 10, second paragraph, Article 11 of the 1987
Constitution) and is therefore null and void.

HELD

As the Filipino first policy was deemed self executing, the court ruled that the qualified Filipino
entity must be given preference by granting it the option to match the winning bid because the
provision. The Supreme Court, therefore, directed the GSIS and other respondents to cease
and desist from selling the 51% shares of the MHC to the Malaysian firm Renong Berhad, and
instead to accept the matching bid of the petitioner Manila Prince Hotel.

The rule is that (from Agpalo) in the case of doubt, the constitution should be considered self
executing rather than non self executing. Such is the case with Section 10, second paragraph,
Article 11 of the 1987 Constitution which states that “in grant of rights and privileges and
concessions covering the national economy and patrimony, the state shall give preference to
qualified Filipino”. According to Justice Bellosillo, ponente of the case at bar, Section 10,
second paragraph, Article 11 of the 1987 Constitution is a mandatory provision, a positive
command which is complete in itself and needs no further guidelines or implementing laws to
enforce it. The Court En Banc emphasized that qualified Filipinos shall be preferred over
foreigners, as mandated by the provision in question.

Furthermore, (agpalo) in its plain ordinary meaning the term patrimony pertains to heritage . the
constitution speaks of national patrimony , it refers not only to the natural resources of the
Philippines, as the constitution could have very well used the term natural resources but also to
the cultural heritage of the Filipinos and therefore an example the Manila hotel which has
become a landmark a living testimonial of Philippine heritage

The Court also reiterated how much of national pride will vanish if the nation’s cultural heritage
will fall on the hands of foreigners, and this is not to be taken lightly as Nationalism is inherent in
the concept of the Philippines being a democratic and republican state. In his dissenting
opinion, Justice Puno said that the provision in question should be interpreted as pro-Filipino
and, at the same time, not anti-alien in itself because it does not prohibit the State from granting
rights, privileges and concessions to foreigners in the absence of qualified Filipinos. He also
argued that the petitioner is estopped from assailing the winning bid of Renong Berhad because
the former knew the rules of the bidding and that the foreigners are qualified, too.

5. G.R. No. 113375 May 5, 1994

KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA,
EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO
SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G.
FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN.
FREDDIE WEBB, SEN. WIGBERTO TAÑADA, and REP. JOKER P. ARROYO, petitioners,
vs.
TEOFISTO GUINGONA, JR., in his capacity as Executive Secretary, Office of the
President; RENATO CORONA, in his capacity as Assistant Executive Secretary and
Chairman of the Presidential review Committee on the Lotto, Office of the President;
PHILIPPINE CHARITY SWEEPSTAKES OFFICE; and PHILIPPINE GAMING MANAGEMENT
CORPORATION, respondents.

Jovito R. Salonga, Fernando Santiago, Emilio C. Capulong, Jr. and Felipe L. Gozon for
petitioners.

Renato L. Cayetano and Eleazar B. Reyes for PGMC.

Gamaliel G. Bongco, Oscar Karaan and Jedideoh Sincero for intervenors.

DAVIDE, JR., J.:

This is a special civil action for prohibition and injunction, with a prayer for a temporary
restraining order and preliminary injunction, which seeks to prohibit and restrain the
implementation of the "Contract of Lease" executed by the Philippine Charity Sweepstakes
Office (PCSO) and the Philippine Gaming Management Corporation (PGMC) in connection with
the on- line lottery system, also known as "lotto."

Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers that it is a non-stock domestic

corporation composed of civic-spirited citizens, pastors, priests, nuns, and lay leaders who are
committed to the cause of truth, justice, and national renewal. The rest of the petitioners, except
Senators Freddie Webb and Wigberto Tañada and Representative Joker P. Arroyo, are suing in
their capacities as members of the Board of Trustees of KILOSBAYAN and as taxpayers and
concerned citizens. Senators Webb and Tañada and Representative Arroyo are suing in their
capacities as members of Congress and as taxpayers and concerned citizens of the Philippines.

The pleadings of the parties disclose the factual antecedents which triggered off the filing of this
petition.

Pursuant to Section 1 of the charter of the PCSO (R.A. No. 1169, as amended by B.P. Blg. 42)
which grants it the authority to hold and conduct "charity sweepstakes races, lotteries and other
similar activities," the PCSO decided to establish an on- line lottery system for the purpose of
increasing its revenue base and diversifying its sources of funds. Sometime before March 1993,
after learning that the PCSO was interested in operating an on-line lottery system, the Berjaya
Group Berhad, "a multinational company and one of the ten largest public companies in
Malaysia," long "engaged in, among others, successful lottery operations in Asia, running both
Lotto and Digit games, thru its subsidiary, Sports Toto Malaysia," with its "affiliate, the
International Totalizator Systems, Inc., . . . an American public company engaged in the
international sale or provision of computer systems, softwares, terminals, training and other
technical services to the gaming industry," "became interested to offer its services and
resources to PCSO." As an initial step, Berjaya Group Berhad (through its individual nominees)
organized with some Filipino investors in March 1993 a Philippine corporation known as the
Philippine Gaming Management Corporation (PGMC), which "was intended to be the medium
through which the technical and management services required for the project would be offered
and delivered to PCSO." 1
Before August 1993, the PCSO formally issued a Request for Proposal (RFP) for the Lease
Contract of an on-line lottery system for the PCSO. 2 Relevant provisions of the RFP are the
following:

1. EXECUTIVE SUMMARY

xxx xxx xxx

1.2. PCSO is seeking a suitable contractor which shall build, at its own expense,
all the facilities ('Facilities') needed to operate and maintain a nationwide on-line
lottery system. PCSO shall lease the Facilities for a fixed percentage ofquarterly
gross receipts. All receipts from ticket sales shall be turned over directly to
PCSO. All capital, operating expenses and expansion expenses and risks shall
be for the exclusive account of the Lessor.

xxx xxx xxx

1.4. The lease shall be for a period not exceeding fifteen (15) years.

1.5. The Lessor is expected to submit a comprehensive nationwide lottery

development plan ("Development Plan") which will include the game, the
marketing of the games, and the logistics to introduce the games to all the cities
and municipalities of the country within five (5) years.

xxx xxx xxx

1.7. The Lessor shall be selected based on its technical expertise, hardware and
software capability, maintenance support, and financial resources. The
Development Plan shall have a substantial bearing on the choice of the Lessor.
The Lessor shall be a domestic corporation, with at least sixty percent (60%) of
its shares owned by Filipino shareholders.

xxx xxx xxx

The Office of the President, the National Disaster Control Coordinating Council,
the Philippine National Police, and the National Bureau of Investigation shall be
authorized to use the nationwide telecommunications system of the Facilities
Free of Charge.

1.8. Upon expiration of the lease, the Facilities shall be owned by PCSO without
any additional consideration. 3

xxx xxx xxx

2.2. OBJECTIVES

The objectives of PCSO in leasing the Facilities from a private entity are as
follows:

xxx xxx xxx

2.2.2. Enable PCSO to operate a nationwide on-line Lottery system at no

expense or risk to the government.

xxx xxx xxx

 2.4. DUTIES AND RESPONSIBILITIES OF THE LESSOR

xxx xxx xxx

2.4.2. THE LESSOR

The Proponent is expected to furnish and maintain the Facilities, including the
personnel needed to operate the computers, the communications network and
sales offices under a build-lease basis. The printing of tickets shall be undertaken
under the supervision and control of PCSO. The Facilities shall enable PCSO to
computerize the entire gaming system.

The Proponent is expected to formulate and design consumer-oriented Master

Games Plan suited to the marketplace, especially geared to Filipino gaming
habits and preferences. In addition, the Master Games Plan is expected to
include a Product Plan for each game and explain how each will be introduced
into the market. This will be an integral part of the Development Plan which
PCSO will require from the Proponent.

xxx xxx xxx

The Proponent is expected to provide upgrades to modernize the entire gaming

system over the life ofthe lease contract.

The Proponent is expected to provide technology transfer to PCSO technical

personnel. 4

7. GENERAL GUIDELINES FOR PROPONENTS

xxx xxx xxx

Finally, the Proponent must be able to stand the acid test of proving that it is an
entity able to take on the role of responsible maintainer of the on-line lottery
system, and able to achieve PSCO's goal of formalizing an on-line lottery system
to achieve its mandated objective. 5

xxx xxx xxx

16. DEFINITION OF TERMS

Facilities: All capital equipment, computers, terminals, software, nationwide

telecommunication network, ticket sales offices, furnishings, and fixtures; printing
costs; cost of salaries and wages; advertising and promotion expenses;
maintenance costs; expansion and replacement costs; security and insurance,
and all other related expenses needed to operate nationwide on-line lottery
system.6

Considering the above citizenship requirement, the PGMC claims that the Berjaya Group
"undertook to reduce its equity stakes in PGMC to 40%," by selling 35% out of the original 75%
foreign stockholdings to local investors.

On 15 August 1993, PGMC submitted its bid to the PCSO.7

The bids were evaluated by the Special Pre-Qualification Bids and Awards Committee (SPBAC)
for the on-line lottery and its Bid Report was thereafter submitted to the Office of the
President. 8 The submission was preceded by complaints by the Committee's Chairperson, Dr.
Mita Pardo de Tavera. 9

On 21 October 1993, the Office of the President announced that it had given the respondent
PGMC the go-signal to operate the country's on-line lottery system and that the corresponding
implementing contract would be submitted not later than 8 November 1993 "for final clearance
and approval by the Chief Executive." 10 This announcement was published in the Manila
Standard, Philippine Daily Inquirer, and the Manila Times on 29 October 1993. 11

On 4 November 1993, KILOSBAYAN sent an open letter to Presidential Fidel V. Ramos strongly
opposing the setting up to the on-line lottery system on the basis of serious moral and ethical
considerations. 12

At the meeting of the Committee on Games and Amusements of the Senate on 12 November
1993, KILOSBAYAN reiterated its vigorous opposition to the on-line lottery on account of its
immorality and illegality. 13

On 19 November 1993, the media reported that despite the opposition, "Malacañang will push
through with the operation of an on-line lottery system nationwide" and that it is actually the
respondent PCSO which will operate the lottery while the winning corporate bidders are merely
"lessors." 14

On 1 December 1993, KILOSBAYAN requested copies of all documents pertaining to the lottery
award from Executive Secretary Teofisto Guingona, Jr. In his answer of 17 December 1993, the
Executive Secretary informed KILOSBAYAN that the requested documents would be duly
transmitted before the end of the month. 15. However, on that same date, an agreement
denominated as "Contract of Lease" was finally executed by respondent PCSO and respondent
PGMC. 16 The President, per the press statement issued by the Office of the President,
approved it on 20 December 1993.17

In view of their materiality and relevance, we quote the following salient provisions of the
Contract of Lease:

1. DEFINITIONS

The following words and terms shall have the following respective meanings:

1.1 Rental Fee — Amount to be paid by PCSO to the LESSOR as compensation

for the fulfillment of the obligations of the LESSOR under this Contract, including,
but not limited to the lease of the Facilities.

xxx xxx xxx

1.3 Facilities — All capital equipment, computers, terminals, software (including

source codes for the On-Line Lottery application software for the terminals,
telecommunications and central systems), technology, intellectual property rights,
telecommunications network, and furnishings and fixtures.

1.4 Maintenance and Other Costs — All costs and expenses relating to printing,
manpower, salaries and wages, advertising and promotion, maintenance,
expansion and replacement, security and insurance, and all other related
expenses needed to operate an On-Line Lottery System, which shall be for the
account of the LESSOR. All expenses relating to the setting-up, operation and
maintenance of ticket sales offices of dealers and retailers shall be borne by
PCSO's dealers and retailers.
1.5 Development Plan — The detailed plan of all games, the marketing thereof,
number of players, value of winnings and the logistics required to introduce the
games, including the Master Games Plan as approved by PCSO, attached
hereto as Annex "A", modified as necessary by the provisions of this Contract.

xxx xxx xxx

1.8 Escrow Deposit — The proposal deposit in the sum of Three Hundred Million
Pesos (P300,000,000.00) submitted by the LESSOR to PCSO pursuant to the
requirements of the Request for Proposals.

2. SUBJECT MATTER OF THE LEASE

The LESSOR shall build, furnish and maintain at its own expense and risk the
Facilities for the On-Line Lottery System of PCSO in the Territory on an exclusive
basis. The LESSOR shall bear all Maintenance and Other Costs as defined
herein.

xxx xxx xxx

3. RENTAL FEE

For and in consideration of the performance by the LESSOR of its obligations

herein, PCSO shall pay LESSOR a fixed Rental Fee equal to four point nine
percent (4.9%) of gross receipts from ticket sales, payable net of taxes required
by law to be withheld, on a semi-monthly basis. Goodwill, franchise and similar
fees shall belong to PCSO.

4. LEASE PERIOD

The period of the lease shall commence ninety (90) days from the date of
effectivity of this Contract and shall run for a period of eight (8) years thereafter,
unless sooner terminated in accordance with this Contract.

5. RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR OF THE ON-LINE

LOTTERY SYSTEM

PCSO shall be the sole and individual operator of the On-Line Lottery System.
Consequently:

5.1 PCSO shall have sole responsibility to decide whether to implement, fully or
partially, the Master Games Plan of the LESSOR. PCSO shall have the sole
responsibility to determine the time for introducing new games to the market. The
Master Games Plan included in Annex "A" hereof is hereby approved by PCSO.

5.2 PCSO shall have control over revenues and receipts of whatever nature from
the On-Line Lottery System. After paying the Rental Fee to the LESSOR, PCSO
shall have exclusive responsibility to determine the Revenue Allocation Plan;
Provided, that the same shall be consistent with the requirement of R.A. No.
1169, as amended, which fixes a prize fund of fifty five percent (55%) on the
average.

5.3 PCSO shall have exclusive control over the printing of tickets, including but
not limited to the design, text, and contents thereof.
5.4 PCSO shall have sole responsibility over the appointment of dealers or
retailers throughout the country. PCSO shall appoint the dealers and retailers in
a timely manner with due regard to the implementation timetable of the On-Line
Lottery System. Nothing herein shall preclude the LESSOR from recommending
dealers or retailers for appointment by PCSO, which shall act on said
recommendation within forty-eight (48) hours.

5.5 PCSO shall designate the necessary personnel to monitor and audit the daily
performance of the On-Line Lottery System. For this purpose, PCSO designees
shall be given, free of charge, suitable and adequate space, furniture and
fixtures, in all offices of the LESSOR, including but not limited to its headquarters,
alternate site, regional and area offices.

5.6 PCSO shall have the responsibility to resolve, and exclusive jurisdiction over,
all matters involving the operation of the On-Line Lottery System not otherwise
provided in this Contract.

5.7 PCSO shall promulgate procedural and coordinating rules governing all
activities relating to the On-Line Lottery System.

5.8 PCSO will be responsible for the payment of prize monies, commissions to
agents and dealers, and taxes and levies (if any) chargeable to the operator of
the On-Line Lottery System. The LESSOR will bear all other Maintenance and
Other Costs, except as provided in Section 1.4.

5.9 PCSO shall assist the LESSOR in the following:

5.9.1 Work permits for the LESSOR's staff;

5.9.2 Approvals for importation of the Facilities;

5.9.3 Approvals and consents for the On-Line Lottery System; and

5.9.4 Business and premises licenses for all offices of the

LESSOR and licenses for the telecommunications network.

5.10 In the event that PCSO shall pre-terminate this Contract or suspend the
operation of the On-Line Lottery System, in breach of this Contract and through
no fault of the LESSOR, PCSO shall promptly, and in any event not later than
sixty (60) days, reimburse the LESSOR the amount of its total investment cost
associated with the On-Line Lottery System, including but not limited to the cost
of the Facilities, and further compensate the LESSOR for loss of expected net
profit after tax, computed over the unexpired term of the lease.

6. DUTIES AND RESPONSIBILITIES OF THE LESSOR

The LESSOR is one of not more than three (3) lessors of similar facilities for the
nationwide On-Line Lottery System of PCSO. It is understood that the rights of
the LESSOR are primarily those of a lessor of the Facilities, and consequently,
all rights involving the business aspects of the use of the Facilities are within the
jurisdiction of PCSO. During the term of the lease, the LESSOR shall.

6.1 Maintain and preserve its corporate existence, rights and privileges, and
conduct its business in an orderly, efficient, and customary manner.
6.2 Maintain insurance coverage with insurers acceptable to PCSO on all
Facilities.

6.3 Comply with all laws, statues, rules and regulations, orders and directives,
obligations and duties by which it is legally bound.

6.4 Duly pay and discharge all taxes, assessments and government charges now
and hereafter imposed of whatever nature that may be legally levied upon it.

6.5 Keep all the Facilities in fail safe condition and, if necessary, upgrade,
replace and improve the Facilities from time to time as new technology develops,
in order to make the On-Line Lottery System more cost-effective and/or
competitive, and as may be required by PCSO shall not impose such
requirements unreasonably nor arbitrarily.

6.6 Provide PCSO with management terminals which will allow real-time
monitoring of the On-Line Lottery System.

6.7 Upon effectivity of this Contract, commence the training of PCSO and other
local personnel and the transfer of technology and expertise, such that at the end
of the term of this Contract, PCSO will be able to effectively take-over the
Facilities and efficiently operate the On-Line Lottery System.

6.8 Undertake a positive advertising and promotions campaign for both

institutional and product lines without engaging in negative advertising against
other lessors.

6.9 Bear all expenses and risks relating to the Facilities including, but not limited
to, Maintenance and Other Costs and:

xxx xxx xxx

6.10 Bear all risks if the revenues from ticket sales, on an annualized basis, are
insufficient to pay the entire prize money.

6.11 Be, and is hereby, authorized to collect and retain for its own account, a
security deposit from dealers and retailers, in an amount determined with the
approval of PCSO, in respect of equipment supplied by the LESSOR. PCSO's
approval shall not be unreasonably withheld.

xxx xxx xxx

6.12 Comply with procedural and coordinating rules issued by PCSO.

7. REPRESENTATIONS AND WARRANTIES

The LESSOR represents and warrants that:

7.1 The LESSOR is corporation duly organized and existing under the laws of the
Republic of the Philippines, at least sixty percent (60%) of the outstanding capital
stock of which is owned by Filipino shareholders. The minimum required Filipino
equity participation shall not be impaired through voluntary or involuntary
transfer, disposition, or sale of shares of stock by the present stockholders.
7.2 The LESSOR and its Affiliates have the full corporate and legal power and
authority to own and operate their properties and to carry on their business in the
place where such properties are now or may be conducted. . . .

7.3 The LESSOR has or has access to all the financing and funding
requirements to promptly and effectively carry out the terms of this Contract. . . .

7.4 The LESSOR has or has access to all the managerial and technical expertise
to promptly and effectively carry out the terms of this Contract. . . .

xxx xxx xxx

10. TELECOMMUNICATIONS NETWORK

The LESSOR shall establish a telecommunications network that will connect all
municipalities and cities in the Territory in accordance with, at the LESSOR's
option, either of the LESSOR's proposals (or a combinations of both such
proposals) attached hereto as Annex "B," and under the following PCSO
schedule:

xxx xxx xxx

PCSO may, at its option, require the LESSOR to establish the

telecommunications network in accordance with the above Timetable in
provinces where the LESSOR has not yet installed terminals. Provided, that such
provinces have existing nodes. Once a municipality or city is serviced by land
lines of a licensed public telephone company, and such lines are connected to
Metro Manila, then the obligation of the LESSOR to connect such municipality or
city through a telecommunications network shall cease with respect to such
municipality or city. The voice facility will cover the four offices of the Office of the
President, National Disaster Control Coordinating Council, Philippine National
Police and the National Bureau of Investigation, and each city and municipality in
the Territory except Metro Manila, and those cities and municipalities which have
easy telephone access from these four offices. Voice calls from the four offices
shall be transmitted via radio or VSAT to the remote municipalities which will be
connected to this voice facility through wired network or by radio. The facility
shall be designed to handle four private conversations at any one time.

xxx xxx xxx

13. STOCK DISPERSAL PLAN

Within two (2) years from the effectivity of this Contract, the LESSOR shall cause
itself to be listed in the local stock exchange and offer at least twenty five percent
(25%) of its equity to the public.

14. NON-COMPETITION

The LESSOR shall not, directly or indirectly, undertake any activity or business in
competition with or adverse to the On-Line Lottery System of PCSO unless it
obtains the latter's prior written consent thereto.

15. HOLD HARMLESS CLAUSE

15.1 The LESSOR shall at all times protect and defend, at its cost and expense,
PCSO from and against any and all liabilities and claims for damages and/or
suits for or by reason of any deaths of, or any injury or injuries to any person or
persons, or damages to property of any kind whatsoever, caused by the
LESSOR, its subcontractors, its authorized agents or employees, from any cause
or causes whatsoever.

15.2 The LESSOR hereby covenants and agrees to indemnify and hold PCSO
harmless from all liabilities, charges, expenses (including reasonable counsel
fees) and costs on account of or by reason of any such death or deaths, injury or
injuries, liabilities, claims, suits or losses caused by the LESSOR's fault or
negligence.

15.3 The LESSOR shall at all times protect and defend, at its own cost and
expense, its title to the facilities and PCSO's interest therein from and against
any and all claims for the duration of the Contract until transfer to PCSO of
ownership of the serviceable Facilities.

16. SECURITY

16.1 To ensure faithful compliance by the LESSOR with the terms of the
Contract, the LESSOR shall secure a Performance Bond from a reputable
insurance company or companies acceptable to PCSO.

16.2 The Performance Bond shall be in the initial amount of Three Hundred
Million Pesos (P300,000,000.00), to its U.S. dollar equivalent, and shall be
renewed to cover the duration of the Contract. However, the Performance Bond
shall be reduced proportionately to the percentage of unencumbered terminals
installed; Provided, that the Performance Bond shall in no case be less than One
Hundred Fifty Million Pesos (P150,000,000.00).

16.3 The LESSOR may at its option maintain its Escrow Deposit as the
Performance Bond. . . .

17. PENALTIES

17.1 Except as may be provided in Section 17.2, should the LESSOR fail to take
remedial measures within seven (7) days, and rectify the breach within thirty (30)
days, from written notice by PCSO of any wilfull or grossly negligent violation of
the material terms and conditions of this Contract, all unencumbered Facilities
shall automatically become the property of PCSO without consideration and
without need for further notice or demand by PCSO. The Performance Bond shall
likewise be forfeited in favor of PCSO.

17.2 Should the LESSOR fail to comply with the terms of the Timetables
provided in Section 9 and 10, it shall be subject to an initial Penalty of Twenty
Thousand Pesos (P20,000.00), per city or municipality per every month of delay;
Provided, that the Penalty shall increase, every ninety (90) days, by the amount
of Twenty Thousand Pesos (P20,000.00) per city or municipality per month,
whilst shall failure to comply persists. The penalty shall be deducted by PCSO
from the rental fee.

xxx xxx xxx

20. OWNERSHIP OF THE FACILITIES

After expiration of the term of the lease as provided in Section 4, the Facilities
directly required for the On-Line Lottery System mentioned in Section 1.3 shall
 automatically belong in full ownership to PCSO without any further consideration
other than the Rental Fees already paid during the effectivity of the lease.

21. TERMINATION OF THE LEASE

PCSO may terminate this Contract for any breach of the material provisions of
this Contract, including the following:

21.1 The LESSOR is insolvent or bankrupt or unable to pay its debts, stops or
suspends or threatens to stop or suspend payment of all or a material part of its
debts, or proposes or makes a general assignment or an arrangement or
compositions with or for the benefit of its creditors; or

21.2 An order is made or an effective resolution passed for the winding up or

dissolution of the LESSOR or when it ceases or threatens to cease to carry on all
or a material part of its operations or business; or

21.3 Any material statement, representation or warranty made or furnished by

the LESSOR proved to be materially false or misleading;

said termination to take effect upon receipt of written notice of

termination by the LESSOR and failure to take remedial action
within seven (7) days and cure or remedy the same within thirty
(30) days from notice.

Any suspension, cancellation or termination of this Contract shall

not relieve the LESSOR of any liability that may have already
accrued hereunder.

xxx xxx xxx

Considering the denial by the Office of the President of its protest and the statement of
Assistant Executive Secretary Renato Corona that "only a court injunction can stop
Malacañang," and the imminent implementation of the Contract of Lease in February 1994,
KILOSBAYAN, with its co-petitioners, filed on 28 January 1994 this petition.

In support of the petition, the petitioners claim that:

. . . X X THE OFFICE OF THE PRESIDENT, ACTING THROUGH

RESPONDENTS EXECUTIVE SECRETARY AND/OR
ASSISTANT EXECUTIVE SECRETARY FOR LEGAL AFFAIRS,
AND THE PCSO GRAVELY ABUSE[D] THEIR DISCRETION
AND/OR FUNCTIONS TANTAMOUNT TO LACK OF
JURISDICTION AND/OR AUTHORITY IN RESPECTIVELY: (A)
APPROVING THE AWARD OF THE CONTRACT TO, AND (B)
ENTERING INTO THE SO-CALLED "CONTRACT OF LEASE"
WITH, RESPONDENT PGMC FOR THE INSTALLATION,
ESTABLISHMENT AND OPERATION OF THE ON-LINE
LOTTERY AND TELECOMMUNICATION SYSTEMS REQUIRED
AND/OR AUTHORIZED UNDER THE SAID CONTRACT,
CONSIDERING THAT:

a) Under Section 1 of the Charter of the PCSO, the PCSO is prohibited from
holding and conducting lotteries "in collaboration, association or joint venture with
any person, association, company or entity";
 b) Under Act No. 3846 and established jurisprudence, a Congressional franchise
is required before any person may be allowed to establish and operate said
telecommunications system;

c) Under Section 11, Article XII of the Constitution, a less than 60% Filipino-
owned and/or controlled corporation, like the PGMC, is disqualified from
operating a public service, like the said telecommunications system; and

d) Respondent PGMC is not authorized by its charter and under the Foreign
Investment Act (R.A. No. 7042) to install, establish and operate the on-line lotto
and telecommunications systems.18

Petitioners submit that the PCSO cannot validly enter into the assailed Contract of Lease with
the PGMC because it is an arrangement wherein the PCSO would hold and conduct the on-line
lottery system in "collaboration" or "association" with the PGMC, in violation of Section 1(B) of
R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and
conducting charity sweepstakes races, lotteries, and other similar activities "in collaboration,
association or joint venture with any person, association, company or entity, foreign or
domestic." Even granting arguendo that a lease of facilities is not within the contemplation of
"collaboration" or "association," an analysis, however, of the Contract of Lease clearly shows
that there is a "collaboration, association, or joint venture between respondents PCSO and
PGMC in the holding of the On-Line Lottery System," and that there are terms and conditions of
the Contract "showing that respondent PGMC is the actual lotto operator and not respondent
PCSO."19

The petitioners also point out that paragraph 10 of the Contract of Lease requires or authorizes
PGMC to establish a telecommunications network that will connect all the municipalities and
cities in the territory. However, PGMC cannot do that because it has no franchise from
Congress to construct, install, establish, or operate the network pursuant to Section 1 of Act No.
3846, as amended. Moreover, PGMC is a 75% foreign-owned or controlled corporation and
cannot, therefore, be granted a franchise for that purpose because of Section 11, Article XII of
the 1987 Constitution. Furthermore, since "the subscribed foreign capital" of the PGMC "comes
to about 75%, as shown by paragraph EIGHT of its Articles of Incorporation," it cannot lawfully
enter into the contract in question because all forms of gambling — and lottery is one of them —
are included in the so-called foreign investments negative list under the Foreign Investments Act
(R.A. No. 7042) where only up to 40% foreign capital is allowed. 20

Finally, the petitioners insist that the Articles of Incorporation of PGMC do not authorize it to
establish and operate an on-line lottery and telecommunications systems.21

Accordingly, the petitioners pray that we issue a temporary restraining order and a writ of
preliminary injunction commanding the respondents or any person acting in their places or upon
their instructions to cease and desist from implementing the challenged Contract of Lease and,
after hearing the merits of the petition, that we render judgment declaring the Contract of Lease
void and without effect and making the injunction permanent. 22

We required the respondents to comment on the petition.

In its Comment filed on 1 March 1994, private respondent PGMC asserts that "(1) [it] is merely
an independent contractor for a piece of work, (i.e., the building and maintenance of a lottery
system to be used by PCSO in the operation of its lottery franchise); and (2) as such
independent contractor, PGMC is not a co-operator of the lottery franchise with PCSO, nor is
PCSO sharing its franchise, 'in collaboration, association or joint venture' with PGMC — as such
statutory limitation is viewed from the context, intent, and spirit of Republic Act 1169, as
amended by Batas Pambansa 42." It further claims that as an independent contractor for a
piece of work, it is neither engaged in "gambling" nor in "public service" relative to the
telecommunications network, which the petitioners even consider as an "indispensable
requirement" of an on-line lottery system. Finally, it states that the execution and
implementation of the contract does not violate the Constitution and the laws; that the issue on
the "morality" of the lottery franchise granted to the PCSO is political and not judicial or legal,
which should be ventilated in another forum; and that the "petitioners do not appear to have the
legal standing or real interest in the subject contract and in obtaining the reliefs sought." 23

In their Comment filed by the Office of the Solicitor General, public respondents Executive
Secretary Teofisto Guingona, Jr., Assistant Executive Secretary Renato Corona, and the PCSO
maintain that the contract of lease in question does not violate Section 1 of R.A. No. 1169, as
amended by B.P. Blg. 42, and that the petitioner's interpretation of the phrase "in collaboration,
association or joint venture" in Section 1 is "much too narrow, strained and utterly devoid of
logic" for it "ignores the reality that PCSO, as a corporate entity, is vested with the basic and
essential prerogative to enter into all kinds of transactions or contracts as may be necessary for
the attainment of its purposes and objectives." What the PCSO charter "seeks to prohibit is that
arrangement akin to a "joint venture" or partnership where there is "community of interest in the
business, sharing of profits and losses, and a mutual right of control," a characteristic which
does not obtain in a contract of lease." With respect to the challenged Contract of Lease, the
"role of PGMC is limited to that of a lessor of the facilities" for the on-line lottery system; in "strict
technical and legal sense," said contract "can be categorized as a contract for a piece of work
as defined in Articles 1467, 1713 and 1644 of the Civil Code."

They further claim that the establishment of the telecommunications system stipulated in the
Contract of Lease does not require a congressional franchise because PGMC will not operate a
public utility; moreover, PGMC's "establishment of a telecommunications system is not intended
to establish a telecommunications business," and it has been held that where the facilities are
operated "not for business purposes but for its own use," a legislative franchise is not required
before a certificate of public convenience can be granted. 24 Even granting arguendo that PGMC
is a public utility, pursuant to Albano S.
Reyes, 25 "it can establish a telecommunications system even without a legislative franchise
because not every public utility is required to secure a legislative franchise before it could
establish, maintain, and operate the service"; and, in any case, "PGMC's establishment of the
telecommunications system stipulated in its contract of lease with PCSO falls within the
exceptions under Section 1 of Act No. 3846 where a legislative franchise is not necessary for
the establishment of radio stations."

They also argue that the contract does not violate the Foreign Investment Act of 1991; that the
Articles of Incorporation of PGMC authorize it to enter into the Contract of Lease; and that the
issues of "wisdom, morality and propriety of acts of the executive department are beyond the
ambit of judicial review."

Finally, the public respondents allege that the petitioners have no standing to maintain the
instant suit, citing our resolution in Valmonte vs. Philippine Charity Sweepstakes Office. 26

Several parties filed motions to intervene as petitioners in this case, 27 but only the motion of
Senators Alberto Romulo, Arturo Tolentino, Francisco Tatad, Gloria Macapagal-Arroyo, Vicente
Sotto III, John Osmeña, Ramon Revilla, and Jose Lina 28 was granted, and the respondents
were required to comment on their petition in intervention, which the public respondents and
PGMC did.

In the meantime, the petitioners filed with the Securities and Exchange Commission on 29
March 1994 a petition against PGMC for the nullification of the latter's General Information
Sheets. That case, however, has no bearing in this petition.

On 11 April 1994, we heard the parties in oral arguments. Thereafter, we resolved to consider
the matter submitted for resolution and pending resolution of the major issues in this case, to
issue a temporary restraining order commanding the respondents or any person acting in their
place or upon their instructions to cease and desist from implementing the challenged Contract
of Lease.

In the deliberation on this case on 26 April 1994, we resolved to consider only these issues: (a)
the locus standi of the petitioners, and (b) the legality and validity of the Contract of Lease in the
light of Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from
holding and conducting lotteries "in collaboration, association or joint venture with any person,
association, company or entity, whether domestic or foreign." On the first issue, seven Justices
voted to sustain the locus standi of the petitioners, while six voted not to. On the second issue,
the seven Justices were of the opinion that the Contract of Lease violates the exception to
Section 1(B) of R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore, invalid and
contrary to law. The six Justices stated that they wished to express no opinion thereon in view
of their stand on the first issue. The Chief Justice took no part because one of the Directors of
the PCSO is his brother-in-law.

This case was then assigned to this ponente for the writing of the opinion of the Court.

The preliminary issue on the locus standi of the petitioners should, indeed, be resolved in their
favor. A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of the issues raised. In the
landmark Emergency Powers Cases, 29 this Court brushed aside this technicality because "the
transcendental importance to the public of these cases demands that they be settled promptly
and definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R.
No. L-2821)." Insofar as taxpayers' suits are concerned, this Court had declared that it "is not
devoid of discretion as to whether or not it should be entertained," 30 or that it "enjoys an open
discretion to entertain the same or not." 31 In De La Llana vs. Alba, 32 this Court declared:

1. The argument as to the lack of standing of petitioners is easily resolved. As far

as Judge de la Llana is concerned, he certainly falls within the principle set forth
in Justice Laurel's opinion in People vs. Vera [65 Phil. 56 (1937)]. Thus: "The
unchallenged rule is that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained,
or will sustain, direct injury as a result of its enforcement [Ibid, 89]. The other
petitioners as members of the bar and officers of the court cannot be considered
as devoid of "any personal and substantial interest" on the matter. There is
relevance to this excerpt from a separate opinion in Aquino, Jr. v. Commission on
Elections [L-40004, January 31, 1975, 62 SCRA 275]: "Then there is the attack
on the standing of petitioners, as vindicating at most what they consider a public
right and not protecting their rights as individuals. This is to conjure the specter of
the public right dogma as an inhibition to parties intent on keeping public officials
staying on the path of constitutionalism. As was so well put by Jaffe; "The
protection of private rights is an essential constituent of public interest and,
conversely, without a well-ordered state there could be no enforcement of private
rights. Private and public interests are, both in a substantive and procedural
sense, aspects of the totality of the legal order." Moreover, petitioners have
convincingly shown that in their capacity as taxpayers, their standing to sue has
been amply demonstrated. There would be a retreat from the liberal approach
followed in Pascual v. Secretary of Public Works, foreshadowed by the very
decision of People v. Vera where the doctrine was first fully discussed, if we act
differently now. I do not think we are prepared to take that step. Respondents,
however, would hard back to the American Supreme Court doctrine in Mellon v.
Frothingham, with their claim that what petitioners possess "is an interest which
is shared in common by other people and is comparatively so minute and
indeterminate as to afford any basis and assurance that the judicial process can
act on it." That is to speak in the language of a bygone era, even in the United
States. For as Chief Justice Warren clearly pointed out in the later case of Flast
v. Cohen, the barrier thus set up if not breached has definitely been lowered.
In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan,33 reiterated
in Basco vs. Philippine Amusements and Gaming Corporation,34 this Court stated:

Objections to taxpayers' suits for lack of sufficient personality standing or interest

are, however, in the main procedural matters. Considering the importance to the
public of the cases at bar, and in keeping with the Court's duty, under the 1987
Constitution, to determine whether or not the other branches of government have
kept themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them, this Court has brushed aside
technicalities of procedure and has taken cognizance of these petitions.

and in Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian
Reform,35 it declared:

With particular regard to the requirement of proper party as applied in the cases
before us, we hold that the same is satisfied by the petitioners and intervenors
because each of them has sustained or is in danger of sustaining an immediate
injury as a result of the acts or measures complained of. [Ex ParteLevitt, 303 US
633]. And even if, strictly speaking, they are not covered by the definition, it is still
within the wide discretion of the Court to waive the requirement and so remove
the impediment to its addressing and resolving the serious constitutional
questions raised.

In the first Emergency Powers Cases, ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders issued by
President Quirino although they were invoking only an indirect and general
interest shared in common with the public. The Court dismissed the objective that
they were not proper parties and ruled that the transcendental importance to the
public of these cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure. We have since then
applied this exception in many other cases. (Emphasis supplied)

In Daza vs. Singson, 36 this Court once more said:

. . . For another, we have early as in the Emergency Powers Cases that where
serious constitutional questions are involved, "the transcendental importance to
the public of these cases demands that they be settled promptly and definitely,
brushing aside, if we must, technicalities of procedure." The same policy has
since then been consistently followed by the Court, as in Gonzales vs.
Commission on Elections [21 SCRA 774] . . .

The Federal Supreme Court of the United States of America has also expressed its
discretionary power to liberalize the rule on locus standi. In United States vs. Federal Power
Commission and Virginia Rea Association vs. Federal Power Commission,37 it held:

We hold that petitioners have standing. Differences of view, however, preclude a

single opinion of the Court as to both petitioners. It would not further clarification
of this complicated specialty of federal jurisdiction, the solution of whose
problems is in any event more or less determined by the specific circumstances
of individual situations, to set out the divergent grounds in support of standing in
these cases.

In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of
Congress, and even association of planters, and non-profit civic organizations were allowed to
initiate and prosecute actions before this Court to question the constitutionality or validity of
laws, acts, decisions, rulings, or orders of various government agencies or instrumentalities.
Among such cases were those assailing the constitutionality of (a) R.A. No. 3836 insofar as it
allows retirement gratuity and commutation of vacation and sick leave to Senators and
Representatives and to elective officials of both Houses of Congress;38 (b) Executive Order No.
284, issued by President Corazon C. Aquino on 25 July 1987, which allowed members of the
cabinet, their undersecretaries, and assistant secretaries to hold other government offices or
positions; 39 (c) the automatic appropriation for debt service in the General Appropriations
Act; 40 (d) R.A. No. 7056 on the holding of desynchronized elections; 41 (d) R.A. No. 1869 (the
charter of the Philippine Amusement and Gaming Corporation) on the ground that it is contrary
to morals, public policy, and order; 42 and (f) R.A. No. 6975, establishing the Philippine National
Police. 43

Other cases where we have followed a liberal policy regarding locus standi include those
attacking the validity or legality of (a) an order allowing the importation of rice in the light of the
prohibition imposed by R.A. No. 3452; 44 (b) P.D. Nos. 991 and 1033 insofar as they proposed
amendments to the Constitution and P.D. No. 1031 insofar as it directed the COMELEC to
supervise, control, hold, and conduct the referendum-plebiscite on 16 October 1976; 45(c) the
bidding for the sale of the 3,179 square meters of land at Roppongi, Minato-ku, Tokyo,
Japan; 46 (d) the approval without hearing by the Board of Investments of the amended
application of the Bataan Petrochemical Corporation to transfer the site of its plant from Bataan
to Batangas and the validity of such transfer and the shift of feedstock from naphtha only to
naphtha and/or liquefied petroleum gas; 47 (e) the decisions, orders, rulings, and resolutions of
the Executive Secretary, Secretary of Finance, Commissioner of Internal Revenue,
Commissioner of Customs, and the Fiscal Incentives Review Board exempting the National
Power Corporation from indirect tax and duties; 48 (f) the orders of the Energy Regulatory Board
of 5 and 6 December 1990 on the ground that the hearings conducted on the second
provisional increase in oil prices did not allow the petitioner substantial cross-examination; 49 (g)
Executive Order No. 478 which levied a special duty of P0.95 per liter or P151.05 per barrel of
imported crude oil and P1.00 per liter of imported oil products; 50 (h) resolutions of the
Commission on Elections concerning the apportionment, by district, of the number of elective
members of Sanggunians; 51 and (i) memorandum orders issued by a Mayor affecting the Chief
of Police of Pasay City.52

In the 1975 case of Aquino vs. Commission on Elections, 53 this Court, despite its unequivocal
ruling that the petitioners therein had no personality to file the petition, resolved nevertheless to
pass upon the issues raised because of the far-reaching implications of the petition. We did no
less in De Guia vs. COMELEC 54 where, although we declared that De Guia "does not appear to
have locus standi, a standing in law, a personal or substantial interest," we brushed aside the
procedural infirmity "considering the importance of the issue involved, concerning as it does the
political exercise of qualified voters affected by the apportionment, and petitioner alleging abuse
of discretion and violation of the Constitution by respondent."

We find the instant petition to be of transcendental importance to the public. The issues it raised
are of paramount public interest and of a category even higher than those involved in many of
the aforecited cases. The ramifications of such issues immeasurably affect the social,
economic, and moral well-being of the people even in the remotest barangays of the country
and the counter-productive and retrogressive effects of the envisioned on-line lottery system are
as staggering as the billions in pesos it is expected to raise. The legal standing then of the
petitioners deserves recognition and, in the exercise of its sound discretion, this Court hereby
brushes aside the procedural barrier which the respondents tried to take advantage of.

And now on the substantive issue.

Section 1 of R.A. No. 1169, as amending by B.P. Blg. 42, prohibits the PCSO from holding and
conducting lotteries "in collaboration, association or joint venture with any person, association,
company or entity, whether domestic or foreign." Section 1 provides:

Sec. 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity

Sweepstakes Office, hereinafter designated the Office, shall be the principal
 government agency for raising and providing for funds for health programs,
medical assistance and services and charities of national character, and as such
shall have the general powers conferred in section thirteen of Act Numbered One
thousand four hundred fifty-nine, as amended, and shall have the authority:

A. To hold and conduct charity sweepstakes races, lotteries and

other similar activities, in such frequency and manner, as shall be
determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.

B. Subject to the approval of the Minister of Human Settlements,

to engage in health and welfare-related investments,
programs, projects and activities which may be profit-oriented, by
itself or in collaboration, association or joint venture with any
person, association, company or entity, whether domestic or
foreign, except for the activities mentioned in the preceding
paragraph (A), for the purpose of providing for permanent and
continuing sources of funds for health programs, including the
expansion of existing ones, medical assistance and services,
and/or charitable grants: Provided, That such investment will not
compete with the private sector in areas where investments are
adequate as may be determined by the National Economic and
Development Authority. (emphasis supplied)

The language of the section is indisputably clear that with respect to its franchise or privilege "to
hold and conduct charity sweepstakes races, lotteries and other similar activities," the
PCSO cannot exercise it "in collaboration, association or joint venture" with any other party. This
is the unequivocal meaning and import of the phrase "except for the activities mentioned in the
preceding paragraph (A)," namely, "charity sweepstakes races, lotteries and other similar
activities."

B.P. Blg. 42 originated from Parliamentary Bill No. 622, which was covered by Committee
Report No. 103 as reported out by the Committee on Socio-Economic Planning and
Development of the Interim Batasang Pambansa. The original text of paragraph B, Section 1 of
Parliamentary Bill No. 622 reads as follows:

To engage in any and all investments and related profit-oriented projects or

programs and activities by itself or in collaboration, association or joint venture
with any person, association, company or entity, whether domestic or foreign, for
the main purpose of raising funds for health and medical assistance and services
and charitable grants. 55

During the period of committee amendments, the Committee on Socio-Economic Planning and
Development, through Assemblyman Ronaldo B. Zamora, introduced an amendment by
substitution to the said paragraph B such that, as amended, it should read as follows:

Subject to the approval of the Minister of Human Settlements, to engage in

health-oriented investments, programs, projects and activities which may be
profit- oriented, by itself or in collaboration, association, or joint venture with any
person, association, company or entity, whether domestic or foreign, for the
purpose of providing for permanent and continuing sources of funds for health
programs, including the expansion of existing ones, medical assistance and
services and/or charitable grants. 56

Before the motion of Assemblyman Zamora for the approval of the amendment could be acted
upon, Assemblyman Davide introduced an amendment to the amendment:
 MR. DAVIDE.

Mr. Speaker.

THE SPEAKER.

The gentleman from Cebu is recognized.

MR. DAVIDE.

May I introduce an amendment to the committee

amendment? The amendment would be to insert
after "foreign" in the amendment just read the
following: EXCEPT FOR THE ACTIVITY IN
LETTER (A) ABOVE.

When it is joint venture or in collaboration with any

entity such collaboration or joint venture must not
include activity activity letter (a) which is the holding
and conducting of sweepstakes races, lotteries and
other similar acts.

MR. ZAMORA.

We accept the amendment, Mr. Speaker.

MR. DAVIDE.

Thank you, Mr. Speaker.

THE SPEAKER.

Is there any objection to the amendment? (Silence)

The amendment, as amended, is approved. 57

Further amendments to paragraph B were introduced and approved. When Assemblyman

Zamora read the final text of paragraph B as further amended, the earlier approved amendment
of Assemblyman Davide became "EXCEPT FOR THE ACTIVITIES MENTIONED IN
PARAGRAPH (A)"; and by virtue of the amendment introduced by Assemblyman Emmanuel
Pelaez, the word PRECEDING was inserted before PARAGRAPH. Assemblyman Pelaez
introduced other amendments. Thereafter, the new paragraph B was approved. 58

This is now paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42.

No interpretation of the said provision to relax or circumvent the prohibition can be allowed since
the privilege to hold or conduct charity sweepstakes races, lotteries, or other similar activities is
a franchise granted by the legislature to the PCSO. It is a settled rule that "in all grants by the
government to individuals or corporations of rights, privileges and franchises, the words are to
be taken most strongly against the grantee .... [o]ne who claims a franchise or privilege in
derogation of the common rights of the public must prove his title thereto by a grant which is
clearly and definitely expressed, and he cannot enlarge it by equivocal or doubtful provisions or
by probable inferences. Whatever is not unequivocally granted is withheld. Nothing passes by
mere implication." 59

In short then, by the exception explicitly made in paragraph B, Section 1 of its charter,
the PCSO cannot share its franchise with another by way of collaboration, association or
joint venture. Neither can it assign, transfer, or lease such franchise. It has been said that
"the rights and privileges conferred under a franchise may, without doubt, be assigned
or transferred when the grant is to the grantee and assigns, or is authorized by statute.
On the other hand, the right of transfer or assignment may be restricted by statute or the
constitution, or be made subject to the approval of the grantor or a governmental
agency, such as a public utilities commission, exception that an existing right of
assignment cannot be impaired by subsequent legislation." 60

It may also be pointed out that the franchise granted to the PCSO to hold and conduct lotteries
allows it to hold and conduct a species of gambling. It is settled that "a statute which authorizes
the carrying on of a gambling activity or business should be strictly construed and every
reasonable doubt so resolved as to limit the powers and rights claimed under its authority." 61

Does the challenged Contract of Lease violate or contravene the exception in Section 1 of R.A.
No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting
lotteries "in collaboration, association or joint venture with" another?

We agree with the petitioners that it does, notwithstanding its denomination or

designation as a (Contract of Lease). We are neither convinced nor moved or fazed by
the insistence and forceful arguments of the PGMC that it does not because in reality it is
only an independent contractor for a piece of work, i.e., the building and maintenance of
a lottery system to be used by the PCSO in the operation of its lottery franchise. Whether
the contract in question is one of lease or whether the PGMC is merely an independent
contractor should not be decided on the basis of the title or designation of the contract
but by the intent of the parties, which may be gathered from the provisions of the
contract itself. Animus hominis est anima scripti. The intention of the party is the soul of the
instrument. In order to give life or effect to an instrument, it is essential to look to the intention of
the individual who executed it. 62 And, pursuant to Article 1371 of the Civil Code, "to determine
the intention of the contracting parties, their contemporaneous and subsequent acts shall be
principally considered." To put it more bluntly, no one should be deceived by the title or
designation of a contract.

A careful analysis and evaluation of the provisions of the contract and a consideration of the
contemporaneous acts of the PCSO and PGMC indubitably disclose that the contract is not in
reality a contract of lease under which the PGMC is merely an independent contractor for a
piece of work, but one where the statutorily proscribed collaboration or association, in the least,
or joint venture, at the most, exists between the contracting parties. Collaboration is defined as
the acts of working together in a joint project. 63 Association means the act of a number of
persons in uniting together for some special purpose or business. 64 Joint venture is defined as
an association of persons or companies jointly undertaking some commercial enterprise;
generally all contribute assets and share risks. It requires a community of interest in the
performance of the subject matter, a right to direct and govern the policy in connection
therewith, and duty, which may be altered by agreement to share both in profit and
losses.65

The contemporaneous acts of the PCSO and the PGMC reveal that the PCSO had neither
funds of its own nor the expertise to operate and manage an on-line lottery system, and that
although it wished to have the system, it would have it "at no expense or risks to the
government." Because of these serious constraints and unwillingness to bear expenses and
assume risks, the PCSO was candid enough to state in its RFP that it is seeking for "a suitable
contractor which shall build, at its own expense, all the facilities needed to operate and
maintain" the system; exclusively bear "all capital, operating expenses and expansion expenses
and risks"; and submit "a comprehensive nationwide lottery development plan . . . which will
include the game, the marketing of the games, and the logistics to introduce the game to all the
cities and municipalities of the country within five (5) years"; and that the operation of the on-line
lottery system should be "at no expense or risk to the government" — meaning itself, since it is
a government-owned and controlled agency. The facilities referred to means "all capital
equipment, computers, terminals, software, nationwide telecommunications network, ticket
sales offices, furnishings and fixtures, printing costs, costs of salaries and wages, advertising
and promotions expenses, maintenance costs, expansion and replacement costs, security and
insurance, and all other related expenses needed to operate a nationwide on-line lottery
system."

In short, the only contribution the PCSO would have is its franchise or authority to operate the
on-line lottery system; with the rest, including the risks of the business, being borne by the
proponent or bidder. It could be for this reason that it warned that "the proponent must be able
to stand to the acid test of proving that it is an entity able to take on the role of responsible
maintainer of the on-line lottery system." The PCSO, however, makes it clear in its RFP that the
proponent can propose a period of the contract which shall not exceed fifteen years, during
which time it is assured of a "rental" which shall not exceed 12% of gross receipts. As admitted
by the PGMC, upon learning of the PCSO's decision, the Berjaya Group Berhad, with its
affiliates, wanted to offer its services and resources to the PCSO. Forthwith, it organized the
PGMC as "a medium through which the technical and management services required for the
project would be offered and delivered to PCSO." 66

Undoubtedly, then, the Berjaya Group Berhad knew all along that in connection with an on-line
lottery system, the PCSO had nothing but its franchise, which it solemnly guaranteed it had in
the General Information of the RFP. 67Howsoever viewed then, from the very inception, the
PCSO and the PGMC mutually understood that any arrangement between them would
necessarily leave to the PGMC the technical, operations, and managementaspects of the on-
line lottery system while the PCSO would, primarily, provide the franchise. The
words Gaming andManagement in the corporate name of respondent Philippine Gaming
Management Corporation could not have been conceived just for euphemistic purposes. Of
course, the RFP cannot substitute for the Contract of Lease which was subsequently executed
by the PCSO and the PGMC. Nevertheless, the Contract of Lease incorporates their intention
and understanding.

The so-called Contract of Lease is not, therefore, what it purports to be. Its denomination as
such is a crafty device, carefully conceived, to provide a built-in defense in the event that the
agreement is questioned as violative of the exception in Section 1 (B) of the PCSO's charter.
The acuity or skill of its draftsmen to accomplish that purpose easily manifests itself in the
Contract of Lease. It is outstanding for its careful and meticulous drafting designed to give an
immediate impression that it is a contract of lease. Yet, woven therein are provisions which
negate its title and betray the true intention of the parties to be in or to have a joint venture for a
period of eight years in the operation and maintenance of the on-line lottery system.

Consistent with the above observations on the RFP, the PCSO has only its franchise to offer,
while the PGMC represents and warrants that it has access to all managerial and technical
expertise to promptly and effectively carry out the terms of the contract. And, for a period of
eight years, the PGMC is under obligation to keep all the Facilitiesin safe condition and if
necessary, upgrade, replace, and improve them from time to time as new technology develops
to make the on-line lottery system more cost-effective and competitive; exclusively bear all costs
and expenses relating to the printing, manpower, salaries and wages, advertising and
promotion, maintenance, expansion and replacement, security and insurance, and all other
related expenses needed to operate the on-line lottery system; undertake a positive advertising
and promotions campaign for both institutional and product lines without engaging in negative
advertising against other lessors; bear the salaries and related costs of skilled and qualified
personnel for administrative and technical operations; comply with procedural and coordinating
rulesissued by the PCSO; and to train PCSO and other local personnel and to effect the transfer
of technology and other expertise, such that at the end of the term of the contract, the PCSO will
be able to effectively take over the Facilities and efficiently operate the on-line lottery system.
The latter simply means that, indeed, the managers, technicians or employees who shall
operate the on-line lottery system are not managers, technicians or employees of the PCSO,
but of the PGMC and that it is only after the expiration of the contract that the PCSO will operate
the system. After eight years, the PCSO would automatically become the owner of the Facilities
without any other further consideration.

For these reasons, too, the PGMC has the initial prerogative to prepare the detailed plan of all
games and the marketing thereof, and determine the number of players, value of winnings, and
the logistics required to introduce the games, including the Master Games Plan. Of course, the
PCSO has the reserved authority to disapprove them. 68 And, while the PCSO has the sole
responsibility over the appointment of dealers and retailers throughout the country, the PGMC
may, nevertheless, recommend for appointment dealers and retailers which shall be acted upon
by the PCSO within forty-eight hours and collect and retain, for its own account, a security
deposit from dealers and retailers in respect of equipment supplied by it.

This joint venture is further established by the following:

(a) Rent is defined in the lease contract as the amount to be paid to the PGMC as
compensation for the fulfillment of its obligations under the contract, including, but not limited to
the lease of the Facilities. However, this rent is not actually a fixed amount. Although it is stated
to be 4.9% of gross receipts from ticket sales, payable net of taxes required by law to be
withheld, it may be drastically reduced or, in extreme cases, nothing may be due or demandable
at all because the PGMC binds itself to "bear all risks if the revenue from the ticket sales, on an
annualized basis, are insufficient to pay the entire prize money." This risk-bearing provision is
unusual in a lessor-lessee relationship, but inherent in a joint venture.

(b) In the event of pre-termination of the contract by the PCSO, or its suspension of operation of
the on-line lottery system in breach of the contract and through no fault of the PGMC, the PCSO
binds itself "to promptly, and in any event not later than sixty (60) days, reimburse the Lessor
the amount of its total investment cost associated with the On-Line Lottery System, including but
not limited to the cost of the Facilities, and further compensate the LESSOR for loss of expected
net profit after tax, computed over the unexpired term of the lease." If the contract were indeed
one of lease, the payment of the expected profits or rentals for the unexpired portion of the term
of the contract would be enough.

(c) The PGMC cannot "directly or indirectly undertake any activity or business in competition
with or adverse to the On-Line Lottery System of PCSO unless it obtains the latter's prior written
consent." If the PGMC is engaged in the business of leasing equipment and technology for an
on-line lottery system, we fail to see any acceptable reason why it should allow a restriction on
the pursuit of such business.

(d) The PGMC shall provide the PCSO the audited Annual Report sent to its stockholders, and
within two years from the effectivity of the contract, cause itself to be listed in the local stock
exchange and offer at least 25% of its equity to the public. If the PGMC is merely a lessor, this
imposition is unreasonable and whimsical, and could only be tied up to the fact that the PGMC
will actually operate and manage the system; hence, increasing public participation in the
corporation would enhance public interest.

(e) The PGMC shall put up an Escrow Deposit of P300,000,000.00 pursuant to the
requirements of the RFP, which it may, at its option, maintain as its initial performance bond
required to ensure its faithful compliance with the terms of the contract.

(f) The PCSO shall designate the necessary personnel to monitor and audit the daily
performance of the on-line lottery system; and promulgate procedural and coordinating
rules governing all activities relating to the on-line lottery system. The first further confirms that it
is the PGMC which will operate the system and the PCSO may, for the protection of its interest,
monitor and audit the daily performance of the system. The second admits
the coordinating and cooperative powers and functions of the parties.
(g) The PCSO may validly terminate the contract if the PGMC becomes insolvent or bankrupt or
is unable to pay its debts, or if it stops or suspends or threatens to stop or suspend payment of
all or a material part of its debts.

All of the foregoing unmistakably confirm the indispensable role of the PGMC in the pursuit,
operation, conduct, and management of the On-Line Lottery System. They exhibit and
demonstrate the parties' indivisible community of interest in the conception, birth and growth of
the on-line lottery, and, above all, in its profits, with each having a right in the formulation and
implementation of policies related to the business and sharing, as well, in the losses — with the
PGMC bearing the greatest burden because of its assumption of expenses and risks, and the
PCSO the least, because of its confessed unwillingness to bear expenses and risks. In a
manner of speaking, each is wed to the other for better or for worse. In the final analysis,
however, in the light of the PCSO's RFP and the above highlighted provisions, as well as the
"Hold Harmless Clause" of the Contract of Lease, it is even safe to conclude that the
actual lessor in this case is the PCSO and the subject matter thereof is its franchise to hold and
conduct lotteries since it is, in reality, the PGMC which operates and manages the on-line lottery
system for a period of eight years.

We thus declare that the challenged Contract of Lease violates the exception provided for in
paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore, invalid
for being contrary to law. This conclusion renders unnecessary further discussion on the other
issues raised by the petitioners.

WHEREFORE, the instant petition is hereby GRANTED and the challenged Contract of Lease
executed on 17 December 1993 by respondent Philippine Charity Sweepstakes Office (PCSO)
and respondent Philippine Gaming Management Corporation (PGMC) is hereby DECLARED
contrary to law and invalid.

The Temporary Restraining Order issued on 11 April 1994 is hereby MADE PERMANENT.

No pronouncement as to costs.

SO ORDERED.

Regalado, Romero and Bellosillo, JJ., concur.

Narvasa, C.J., took no part.

 6. G.R. No. 118910 November 16, 1995

KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA,

EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO
SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, RAFAEL G. FERNANDO, RAOUL V.
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN.
WIGBERTO TAÑADA, REP. JOKER P. ARROYO, petitioners,
vs.
MANUEL L. MORATO, in his capacity as Chairman of the Philippine Charity Sweepstakes
Office, and the PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents.

RESOLUTION
MENDOZA, J.:

Petitioners seek reconsideration of our decision in this case. They insist that the decision in the
first case has already settled (1) whether petitioner Kilosbayan, Inc. has a standing to sue and
(2) whether under its charter (R.A. No. 1169, as amended) the Philippine Charity Sweepstakes
Office can enter into any form of association or collaboration with any party in operating an on-
line lottery. Consequently, petitioners contend, these questions can no longer be reopened.

Because two members of the Court did not consider themselves bound by the decision in the
first case, petitioners suggest that the two, in joining the dissenters in the first case in
reexamining the questions in the present case, acted otherwise than according to law. They cite
the following statement in the opinion of the Court:

The voting on petitioners' standing in the previous case was a narrow one, with
seven (7) members sustaining petitioners' standing and six (6) denying
petitioners' right to bring the suit. The majority was thus a tenuous one that is not
likely to be maintained in any subsequent litigation. In addition, there have been
changes in the membership of the Court, with the retirement of Justices Cruz and
Bidin and the appointment of the writer of this opinion and Justice Francisco.
Given this fact it is hardly tenable to insist on the maintenance of the ruling as to
petitioners' standing.

Petitioners claim that this statement "conveys a none too subtle suggestion, perhaps a
Freudian slip, that the two new appointees, regardless of the merit of the Decision in the
first Kilosbayan case against the lotto (Kilosbayan, et al. v. Guingona, 232 SCRA 110
(1994)) must of necessity align themselves with all the Ramos appointees who were
dissenters in the first case and constitute the new majority in the second lotto case." And
petitioners ask, "why should it be so?"

Petitioners ask a question to which they have made up an answer. Their attempt at
psychoanalysis, detecting a Freudian slip where none exists, may be more revealing of their
own unexpressed wish to find motives where there are none which they can impute to some
members of the Court.

For the truth is that the statement is no more than an effort to explain — rather than to justify —
the majority's decision to overrule the ruling in the previous case. It is simply meant to explain
that because the five members of the Court who dissented in the first case (Melo, Quiason,
Puno, Vitug and Kapunan, JJ.) and the two new members (Mendoza and Francisco, JJ.)
thought the previous ruling to be erroneous and its reexamination not to be barred by stare
decisis, res judicata or conclusiveness of judgment, or law of the case, it was hardly tenable for
petitioners to insist on the first ruling.

Consequently to petitioners' question "What is the glue that holds them together," implying
some ulterior motives on the part of the new majority in reexamining the two questions, the
answer is: None, except a conviction on the part of the five, who had been members of the
Court at the time they dissented in the first case, and the two new members that the previous
ruling was erroneous. The eighth Justice (Padilla, J.) on the other hand agrees with the seven
Justices that the ELA is in a real sense a lease agreement and therefore does not violate R.A.
No. 1169.

The decision in the first case was a split decision: 7-6. With the retirement of one of the original
majority (Cruz, J.) and one of the dissenters (Bidin, J.) it was not surprising that the first decision
in the first case was later reversed.
It is argued that, in any case, a reexamination of the two questions is barred because the PCSO
and the Philippine Gaming Management Corporation made a " formal commitment not to ask for
a reconsideration of the Decision in the first lotto case and instead submit a new agreement that
would be in conformity with the PCSO Charter (R.A. No. 1169, as amended) and with the
Decision of the Supreme Court in the first Kilosbayan case against on-line, hi-tech lotto."

To be sure, a new contract was entered into which the majority of the Court finds has been
purged of the features which made the first contract objectionable. Moreover, what the PCSO
said in its manifestation in the first case was the following:

1. They are no longer filing a motion for reconsideration of the Decision of this
Honorable Court dated May 5, 1994, a copy of which was received on May 6,
1994.

2. Respondents PCSO and PGMC are presently negotiating a new lease

agreement consistent with the authority of PCSO under its charter (R.A. No.
1169, as amended by B.P. Blg. 42) and conformable with the pronouncements of
this Honorable Court in its Decision of May 5, 1995.

The PGMC made substantially the same manifestation as the PCSO.

There was thus no "formal commitment" — but only a manifestation — that the parties were not
filing a motion for reconsideration. Even if the parties made a "formal commitment," the six (6)
dissenting Justices certainly could not be bound thereby not to insist on their contrary view on
the question of standing. Much less were the two new members bound by any "formal
commitment" made by the parties. They believed that the ruling in the first case was erroneous.
Since in their view reexamination was not barred by the doctrine of stare decisis, res judicata or
conclusiveness of judgment or law of the case, they voted the way they did with the remaining
five (5) dissenters in the first case to form a new majority of eight.

Petitioners ask, "Why should this be so?" Because, as explained in the decision, the first
decision was erroneous and no legal doctrine stood in the way of its reexamination. It can,
therefore, be asked "with equal candor": "Why should this not be so?"

Nor is this the first time a split decision was tested, if not reversed, in a subsequent case
because of change in the membership of a court. In 1957, this Court, voting 6-5, held
in Feliciano v. Aquinas, G.R. No. L-10201, Sept. 23, 1957 that the phrase "at the time of the
election" in §2174 of the Revised Administrative Code of 1917 meant that a candidate for
municipal elective position must be at least 23 years of age on the date of the election. On the
other hand, the dissenters argued that it was enough if he attained that age on the day he
assumed office.

Less than three years later, the same question was before the Court again, as a candidate for
municipal councilor stated under oath in her certificate of candidacy that she was eligible for that
position although she attained the requisite age (23 years) only when she assumed office. The
question was whether she could be prosecuted for falsification. In People v. Yang, 107 Phi. 888
(1960), the Court ruled she could not. Justice, later Chief Justice, Benison, who dissented in the
first case, Feliciano v. Aquinas, supra, wrote the opinion of the Court, holding that while the
statement that the accused was eligible was "inexact or erroneous, according to the majority in
the Feliciano case," the accused could not be held liable for falsification, because

the question [whether the law really required candidates to have the required age
on the day of the election or whether it was sufficient that they attained it at the
beginning of the term of office] has not been discussed anew, despite the
presence of new members; we simply assume for the purpose of this decision
that the doctrine stands.
Thus because in the meantime there had been a change in the membership of the Court with
the retirement of two members (Recess and Flex, JJ.) who had taken part in the decision in the
first case and their replacement by new members (Barrera and Gutierrez-David, JJ.) and the
fact that the vote in the first case was a narrow one (6 to 5), the Court allowed that the
continuing validity of its ruling in the first case might well be doubted. For this reason it gave the
accused the benefit of the doubt that she had acted in the good faith belief that it was sufficient
that she was 23 years of age when she assumed office.

In that case, the change in the membership of the Court and the possibility of change in the
ruling were noted without anyone — much less would-be psychoanalysts — finding in the
statement of the Court any Freudian slip. The possibility of change in the rule as a result of
change in membership was accepted as a sufficient reason for finding good faith and lack of
criminal intent on the part of the accused.

Indeed, a change in the composition of the Court could prove the means of undoing an
erroneous decision. This was the lesson of Knox v. Lee, 12 Wall. 457 (1871). The Legal Tender
Acts, which were passed during the Civil War, made U.S. notes (greenbacks) legal tender for
the payment of debts, public or private, with certain exceptions. The validity of the acts, as
applied to preexisting debts, was challenged in Hepburn v. Griswold, 8 Wall. 603 (1869). The
Court was then composed of only eight (8) Justices because of Congressional effort to limit the
appointing power of President Johnson. Voting 5-3, the Court declared the acts void. Chief
Justice Chase wrote the opinion of the Court in which four others, including Justice Grier,
concurred. Justices Miller, Swayne and Davis dissented. A private memorandum left by the
dissenting Justices described how an effort was made "to convince an aged and infirm member
of the court [Justice Grier] that he had not understood the question on which he voted," with the
result that what was originally a 4-4 vote was converted into a majority (5-3) for holding the acts
invalid.

On the day the decision was announced, President Grant nominated to the Court William Strong
and Joseph P. Bradley to fill the vacancy caused by the resignation of Justice Grier and to
restore the membership of the Court to nine. In 1871, Hepburn v. Griswold was overruled in the
Legal Tender Cases, as Knox v. Lee came to be known, in an opinion by Justice Strong, with a
dissenting opinion by Chief Justice Chase and the three other surviving members of the former
majority. There were allegations that the new Justices were appointed for their known views on
the validity of the Legal Tender Acts, just as there were others who defended the character and
independence of the new Justices. History has vindicated the overruling of the Hepburn case by
the new majority. The Legal Tender Cases proved to be the Court's means of salvation from
what Chief Justice Hughes later described as one of the Court's "self-inflicted wounds."1

We now consider the specific grounds for petitioners' motion for reconsideration.

I. We have held that because there are no genuine issues of constitutionality in this case, the
rule concerning real party in interest, applicable to private litigation rather than the more liberal
rule on standing, applies to petitioners. Two objections are made against that ruling: (1) that the
constitutional policies and principles invoked by petitioners, while not supplying the basis for
affirmative relief from the courts, may nonetheless be resorted to for striking down laws or
official actions which are inconsistent with them and (2) that the Constitution, by guaranteeing to
independent people's organizations "effective and reasonable participation at all levels of social,
political and economic decision-making" (Art. XIII, §16), grants them standing to sue on
constitutional grounds.

The policies and principles of the Constitution invoked by petitioner read:

Art. II, §5. The maintenance of peace and order, the protection life, liberty, and
property, and thepromotion of the general welfare are essential for the enjoyment
by all the people of the blessings of democracy.
 Id., §12. The natural and primary right and duty of parents in the rearing of the
youth for civic efficiency and the development of moral character shall receive
the support of the Government.

Id., §13. The State recognizes the vital role of the youth in nation-building and
shall promote and protect their physical, moral, spiritual, intellectual, and social
well-being. It shall inculcate in the youth patriotism and nationalism, and
encourage their involvement in public and civic affairs.

Id., §17. The State shall give priority to education, science and technology, arts,
culture, and sports to foster patriotism and nationalism, accelerate social
progress, and promote total human liberation and development.

As already stated, however, these provisions are not self-executing. They do not confer rights
which can be enforced in the courts but only provide guidelines for legislative or executive
action. By authorizing the holding of lottery for charity, Congress has in effect determined that
consistently with these policies and principles of the Constitution, the PCSO may be given this
authority. That is why we said with respect to the opening by the PAGCOR of a casino in
Cagayan de Oro, "the morality of gambling is not a justiciable issue. Gambling is not illegalper
se. . . . It is left to Congress to deal with the activity as it sees fit." (Magtajas v. Pryce Properties
Corp., Inc., 234 SCRA 255, 268 [1994]).

It is noteworthy that petitioners do not question the validity of the law allowing lotteries. It is the
contract entered into by the PCSO and the PGMC which they are assailing. This case,
therefore, does not raise issues of constitutionality but only of contract law, which petitioners,
not being privies to the agreement, cannot raise.

Nor does Kilosbayan's status as a people's organization give it the requisite personality to
question the validity of the contract in this case. The Constitution provides that "the State shall
respect the role of independent people's organizations to enable the people to pursue and
protect, within the democratic framework, their legitimate and collective interests and aspirations
through peaceful and lawful means," that their right to "effective and reasonable participation at
all levels of social, political, and economic decision-making shall not be abridged." (Art. XIII, §§
15-16)

These provisions have not changed the traditional rule that only real parties in interest or those
with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court,
even in cases involving constitutional questions, is limited by the "case and controversy"
requirement of Art. VIII, §5. This requirement lies at the very heart of the judicial function. It is
what differentiates decision-making in the courts from decision-making in the political
departments of the government and bars the bringing of suits by just any party.

Petitioners quote extensively from the speech of Commissioner Garcia before the Constitutional
Commission, explaining the provisions on independent people's organizations. There is nothing
in the speech, however, which supports their claim of standing. On the contrary, the speech
points the way to the legislative and executive branches of the government, rather than to the
courts, as the appropriate fora for the advocacy of petitioners' views. 2 Indeed, the provisions on
independent people's organizations may most usefully be read in connection with the provision
on initiative and referendum as a means whereby the people may propose or enact laws or
reject any of those passed by Congress. For the fact is that petitioners' opposition to the
contract in question is nothing more than an opposition to the government policy on lotteries.

It is nevertheless insisted that this Court has in the past accorded standing to taxpayers and
concerned citizens in cases involving "paramount public interest." Taxpayers, voters, concerned
citizens and legislators have indeed been allowed to sue but then only (1) in cases involving
constitutional issues and
(2) under certain conditions. Petitioners do not meet these requirements on standing.
Taxpayers are allowed to sue, for example, where there is a claim of illegal disbursement of
public funds. (Pascual v. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v. Comelec,
73 SCRA 333 (1976); Bugnay Const. & Dev. v. Laron, 176 SCRA 240 (1989); City Council of
Cebu v. Cuizon, 47 SCRA 325 [1972]) or where a tax measure is assailed as unconstitutional.
(VAT Cases [Tolentino v. Secretary of Finance], 235 SCRA 630 [1994]) Voters are allowed to
question the validity of election laws because of their obvious interest in the validity of such
laws. (Gonzales v. Comelec, 21 SCRA 774 [1967]) Concerned citizens can bring suits if the
constitutional question they raise is of "transcendental importance" which must be settled early.
(Emergency Powers Cases [Araneta v. Dinglasan], 84 Phi. 368 (1949); Iloilo Palay and Corn
Planters Ass'n v. Feliciano, 121 Phi. 358 (1965); Philconsa v. Gimenez, 122 Phi. 894 (1965);
CLU v. Executive Secretary, 194 SCRA 317 [1991]) Legislators are allowed to sue to question
the validity of any official action which they claim infringes their prerogatives qua legislators.
(Philconsa v. Enriquez, 235 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales
v. Macaraig, 191 SCRA 452 (1990); Tolentino v. Comelec, 41 SCRA 702 (1971); Tatad v.
Garcia, G.R. No. 114222, April 16, 1995 (Mendoza, J., concurring))

Petitioners do not have the same kind of interest that these various litigants have. Petitioners
assert an interest as taxpayers, but they do not meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec, 95 SCRA 392, 403 (1980), to wit:

While, concededly, the elections to be held involve the expenditure of public

moneys, nowhere in their Petition do said petitioners allege that their tax money
is "being extracted and spent in violation of specific constitutional protections
against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that
there is a misapplication of such funds by respondent COMELEC (see Pascual
vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is
being deflected to any improper purpose. Neither do petitioners seek to restrain
respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA
300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA
479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance
of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677
[1972]), speaking through our present Chief Justice, this Court is vested with
discretion as to whether or not a taxpayer's suit should be entertained.
(Emphasis added)

Petitioners' suit does not fall under any of these categories of taxpayers' suits.

Neither do the other cases cited by petitioners support their contention that taxpayers have
standing to question government contracts regardless of whether public funds are involved or
not. In Gonzales v. National Housing, Corp., 94 SCRA 786 (1979), petitioner filed a taxpayer's
suit seeking the annulment of a contract between the NHC and a foreign corporation. The case
was dismissed by the trial court. The dismissal was affirmed by this Court on the grounds of res
judicata and pendency of a prejudicial question, thus avoiding the question of petitioner's
standing.

On the other hand, in Gonzales v. Raquiza, 180 SCRA 254 (1989), petitioner sought the
annulment of a contract made by the government with a foreign corporation for the purchase of
road construction equipment. The question of standing was not discussed, but even if it was,
petitioner's standing could be sustained because he was a minority stockholder of the Philippine
National Bank, which was one of the defendants in the case.

In the other case cited by petitioners, City Council of Cebu v. Cuizon, 47 SCRA 325 (1972),
members of the city council were allowed to sue to question the validity of a contract entered
into by the city government for the purchase of road construction equipment because their
contention was that the contract had been made without their authority. In addition, as taxpayers
they had an interest in seeing to it that public funds were spent pursuant to an appropriation
made by law.

But, in the case at bar, there is an allegation that public funds are being misapplied or
misappropriated. The controlling doctrine is that of Gonzales v. Marcos, 65 SCRA 624 (1975)
where it was held that funds raised from contributions for the benefit of the Cultural Center of
the Philippines were not public funds and petitioner had no standing to bring a taxpayer's suit to
question their disbursement by the President of the Philippines.

Thus, petitioners' right to sue as taxpayers cannot be sustained. Nor as concerned citizens can
they bring this suit because no specific injury suffered by them is alleged. As for the petitioners,
who are members of Congress, their right to sue as legislators cannot be invoked because they
do not complain of any infringement of their rights as legislators.

Finally, in Valmonte v. PCSO, G.R. No. 78716, September 22, 1987, we threw out a petition
questioning another form of lottery conducted by the PCSO on the ground that petitioner, who
claimed to be a "citizen, lawyer, taxpayer and father of three minor children," had no direct and
personal interest in the lottery. We said: "He must be able to show, not only that the law is
invalid, but also that he has sustained or is in immediate danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute complained of." In the case at bar, petitioners have not shown
why, unlike petitioner in the Valmonte case, they should be accorded standing to bring this suit.

The case of Oposa v. Factoran, Jr. 224 SCRA 792 (1993) is different. Citizens' standing to bring
a suit seeking the cancellation of timber licenses was sustained in that case because the Court
considered Art. II, §16 a right-conferring provision which can be enforced in the courts. That
provision states:

The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature. (Emphasis)

In contrast, the policies and principles invoked by petitioners in this case do not permit of
such categorization.

Indeed, as already stated, petitioners' opposition is not really to the validity of the ELA but to
lotteries which they regard to be immoral. This is not, however, a legal issue, but a policy matter
for Congress to decide and Congress has permitted lotteries for charity.

Nevertheless, although we have concluded that petitioners do not have standing, we have not
stopped there and dismissed their case. For in the view we take, whether a party has a cause of
action and, therefore, is a real party in interest or one with standing to raise a constitutional
question must turn on whether he has a right which has been violated. For this reason the Court
has not ducked the substantive issues raised by petitioners.

II. R.A. No. 1169, as amended by B.P No . 42, states:

§1. The Philippine Charity Sweepstakes Office. — The Philippine Charity

Sweepstakes Office, hereinafter designated the Office, shall be the principal
government agency for raising and providing for funds for health programs,
medical assistance and services and charities of national character, and as such
shall have the general powers conferred in section thirteen of Act Numbered One
Thousand Four Hundred Fifty-Nine, as amended, and shall have the authority:
 A. To hold and conduct charity sweepstakes races, lotteries and other similar
activities, in such frequency and manner, as shall be determined, and subject to
such rules and regulations as shall be promulgated by the Board of Directors.

B. Subject to the approval of the Minister of Human Settlements, to engage in

health and welfare-related investments, programs, projects and activities which
may be profit-oriented, by itself or in collaboration, association or joint venture
with any person, association, company or entity, whether domestic or foreign,
except for the activities mentioned in the preceding paragraph (A), for the
purpose of providing for permanent and continuing sources of funds for health
programs, including the expansion of existing ones, medical assistance and
services, and/or charitable grants: Provided, That such investments will not
compete with the private sector in areas where investments are adequate as may
be determined by the National Economic and Development Authority.

Petitioners insist on the ruling in the previous case that the PCSO cannot hold and conduct
charity sweepstakes, lotteries and other similar activities in collaboration, association or joint
venture with any other party because of the clause "except for the activities mentioned in the
preceding paragraph (A)" in paragraph (B) of §1. Petitioners contend that the ruling is the law of
this case because the parties are the same and the case involves the same issue, i.e., the
meaning of this statutory provision.

The "law of the case" doctrine is inapplicable, because this case is not a continuation of the first
one. Petitioners also say that inquiry into the same question as to the meaning of the statutory
provision is barred by the doctrine of res judicata. The general rule on the "conclusiveness of
judgment," however, is subject to the exception that a question may be reopened if it is a legal
question and the two actions involve substantially different claims. This is generally accepted in
American law from which our Rules of Court was adopted. (Montana v. United States, 440 U.S.
59 L.Ed.2d 147, 210 (1979); RESTATEMENT OF THE LAW 2d, ON JUDGMENTS, §28; P.
BATOR, D. MELTZER, P. MISHKIN AND D. SHAPIRO, THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 1058, n.2 [3rd Ed., 1988]) There is nothing in the record of this case to
suggest that this exception is inapplicable in this jurisdiction.

Indeed, the questions raised in this case are legal questions and the claims involved are
substantially different from those involved in the prior case between the parties. As already
stated, the ELA is substantially different from the Contract of Lease declared void in the first
case.

Borrowing from the dissenting opinion of Justice Feliciano, petitioners argue that the phrase "by
itself or in collaboration, association or joint venture with any other party" qualifies not only §1
(B) but also §1 (A), because the exception clause ("except for the activities mentioned in the
preceding paragraph [A]") "operates, as it were, as a renvoi clause which refers back to Section
1(A) and in this manner avoids the necessity of simultaneously amending the text of Section
1(A)."

This interpretation, however, fails to take into account not only the location of the phrase in
paragraph (B), when it should be in paragraph (A) had that been the intention of the lawmaking
authority, but also the phrase "by itself." In other words, under paragraph (B), the PCSO is
prohibited from "engag[ing] in . . . investments, programs, projects and activities" if these involve
sweepstakes races, lotteries and other similar activities not only "in collaboration, association or
joint venture" with any other party but also "by itself." Obviously, this prohibition cannot apply
when the PCSO conducts these activities itself. Otherwise, what paragraph (A) authorizes the
PCSO to do, paragraph (B) would prohibit.

The fact is that the phrase in question does not qualify the authority of the PCSO under
paragraph (A), but rather the authority granted to it by paragraph (B). The amendment of
paragraph (B) by B.P. Blg. 42 was intended to enable the PCSO to engage in certain
investments, programs, projects and activities for the purpose of raising funds for health
programs and charity. That is why the law provides that such investments by the PCSO should
"not compete with the private sector in areas where investments are adequate as may be
determined by the National Economic and Development Authority." Justice Davide, then an
Assemblyman, made a proposal which was accepted, reflecting the understanding that the bill
they were discussing concerned the authority of the PCSO to invest in the business of others.
The following excerpt from the Record of the Batasan Pambansa shows this to be the subject of
the discussion:

MR. DAVIDE. May I introduce an amendment after "adequate". The intention of

the amendment is not to leave the determination of whether it is adequate or not
to anybody. And my amendment is to add after "adequate" the words AS MAY
BE DETERMINED BY THE NATIONAL ECONOMIC AND DEVELOPMENT
AUTHORITY. As a mater of fact, it will strengthen the authority to invest in these
areas, provided that the determination of whether the private sector's activity is
already adequate must be determined by the National Economic and
Development Authority.

Mr. ZAMORA. Mr. Speaker, the committee accepts the proposed amendment.

MR. DAVIDE. Thank you, Mr. Speaker.

(2 RECORD OF THE BATASAN PAMBANSA, Sept. 6, 1979,

p. 1007)

Thus what the PCSO is prohibited from doing is from investing in a business engaged in
sweepstakes races, lotteries and other similar activities. It is prohibited from doing so
whether "in collaboration, association or joint venture" with others or "by itself." This seems to
be the only possible interpretation of §1 (A) and (B) in light of its text and its legislative history.
That there is today no other entity engaged in sweepstakes races, lotteries and the like does not
detract from the validity of this interpretation.

III. The Court noted in its decision that the provisions of the first contract, which were considered
to be features of a joint venture agreement, had been removed in the new contract. For
instance, §5 of the ELA provides that in the operation of the on-line lottery, the PCSO must
employ "its own competent and qualified personnel." Petitioners claim, however, that the
"contemporaneous interpretation" of PGMC officials of this provision is otherwise. They cite the
testimony of Glen Barroga of the PGMC before a Senate committee to the effect that under the
ELA the PGMC would be operating the lottery system "side by side" with PCSO personnel as
part of the transfer of technology.

Whether the transfer of technology would result in a violation of PCSO's franchise should be
determined by facts and not by what some officials of the PGMC state by way of opinion. In the
absence of proof to the contrary, it must be presumed that §5 reflects the true intention of the
parties. Thus, Art. 1370 of the Civil Code says that "If the terms of a contract are clear and leave
no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall
control." The intention of the parties must be ascertained from their "contemporaneous and
subsequent acts." (Art. 1371; Atlantic Gulf Co. v. Insular Government, 10 Phil. 166 [1908]) It
cannot simply be judged from what one of them says. On the other hand, the claim of third
parties, like petitioners, that the clause on upgrading of equipment would enable the parties
after a while to change the contract and enter into something else in violation of the law is mere
speculation and cannot be a basis for judging the validity of the contract.

IV. It is contended that §1 of E.O. No. 301 covers all types of "contract[s] for public services
or for furnishing of supplies, materials and equipment to the government or to any of its
branches, agencies or instrumentalities" and not only contracts of purchase and sale.
Consequently, a lease of equipment, like the ELA, must be submitted to public bidding in order
to be valid. This contention is based on two premises: (1) that §1 of E.O. No. 301 applies to any
contract whereby the government acquires title to or the use of the equipment and (2) that the
words "supplies," "materials," and "equipment" are distinct from each other so that when an
exception in §1 speaks of "supplies," it cannot be construed to mean "equipment."

Petitioners' contention will not bear analysis. For example, the term "supplies" is used in
paragraph (a), which provides that a contract for the furnishing of "supplies" in order to meet an
emergency is exempt from public bidding. Unless "supplies" is construed to include
"equipment," however, the lease of heavy equipment needed for rescue operations in case of a
calamity will have to be submitted to public bidding before it can be entered into by the
government.

In dissent Justice Feliciano says that in such a situation the government can simply resort to
expropriation, paying compensation afterward. This is just like purchasing the equipment
through negotiation when the question is whether the purchase should be by public bidding, not
to mention the fact that the power to expropriate may not be exercised when the government
can very well negotiate with private owners.

Indeed, there are fundamental difficulties in simultaneously contending (1) that E.O. No. 301, §1
covers both contracts of sale and lease agreements and (2) that the words "supplies,"
"materials" and "equipment" can not be interchanged. Thus, under paragraph (b) of §1, public
bidding is not required "whenever the supplies are to be used in connection with a project or
activity which cannot be delayed without causing detriment to the public service." Following
petitioners' theory, there should be a public bidding before the government can enter into a
contract for the lease of bulldozers and dredging equipment even if these are urgently needed
in areas ravaged by lahar because, first, lease contracts are covered by the general rule and,
second, the exception to public bidding in paragraph (b) covers only "supplies" but not
equipment.

To take still another example. Paragraph (d), which does away with the requirement of public
bidding "whenever the supplies under procurement have been unsuccessfully placed on bid for
at least two consecutive times, either due to lack of bidders or the offers received in each
instance were exorbitant or nonconforming to specifications." Again, following the theory of the
petitioners, a contract for the lease of equipment cannot be entered into even if there are no
bids because, first, lease contracts are governed by the general rule on public bidding and,
second, the exception to public bidding in paragraph (d) applies only to contracts for the
furnishing of "supplies."

Other examples can be given to show the absurdity of interpreting §1 as applicable to any
contract for the furnishing of supplies, materials and equipment and of considering the words
"supplies," "materials" and "equipment" to be not interchangeable. Our ruling that §1 of E.O. No.
301 does not cover the lease of equipment avoids these fundamental difficulties and is
supported by the text of §1, which is entitled "Guidelines for Negotiated Contracts" and by the
fact that the only provisions of E.O. No. 301 on leases, namely, §§6 and 7, concern the lease of
buildings by or to the government. Thus the text of §1 reads:

§1. Guidelines for Negotiated Contracts. — Any provision of law, decree,

executive order or other issuances to the contrary notwithstanding, no contract
for public services or for furnishing supplies, materials and equipment to the
government or any of its branches, agencies or instrumentalities shall be
renewed or entered into without public bidding, except under any of the following
situations:

a. Whenever the supplies are urgently needed to meet an

emergency which may involve the loss of, or danger to, life and/or
property;
 b. Whenever the supplies are to be used in connection with a
project or activity which cannot be delayed without causing
detriment to the public service;

c. Whenever the materials are sold by an exclusive distributor or

manufacturer who does not have subdealers selling at lower
prices and for which no suitable substitute can be obtained
elsewhere at more advantageous terms to the government;

d. Whenever the supplies under procurement have been

unsuccessfully placed on bid for at least two consecutive times,
either due to lack of bidders or the offers received in each
instance were exhorbitant or non-conforming to specifications;

e. In cases where it is apparent that the requisition of the needed

supplies through negotiated purchase is most advantageous to
the government to be determined by the Department Head
concerned; and

f. Whenever the purchase is made from an agency of the

government.

Indeed, the purpose for promulgating E.O. No. 301 was merely to decentralize the system of
reviewing negotiated contracts of purchase for the furnishing of supplies, materials and
equipment as well as lease contracts of buildings. Theretofore, E.O. No. 298, promulgated on
August 12, 1940, required consultation with the Secretary of Justice and the Department Head
concerned and the approval of the President of the Philippines before contracts for the
furnishing of supplies, materials and equipment could be made on a negotiated basis, without
public bidding. E.O. No. 301 changed this by providing as follows:

§2. Jurisdiction over Negotiated Contracts. — In line with the principles of

decentralization and accountability, negotiated contracts for public services or for
furnishing supplies, materials or equipment may be entered into by the
department or agency head or the governing board of the government-owned or
controlled corporation concerned, without need of prior approval by higher
authorities, subject to availability of funds, compliance with the standards or
guidelines prescribed in Section 1 hereof, and to the audit jurisdiction of the
commission on Audit in accordance with existing rules and regulations.

Negotiated contracts involving P2,000,000 up to P10,000,000 shall be signed by

the Secretary and two other Undersecretaries.

xxx xxx xxx

§7. Jurisdiction Over Lease Contracts. — The heads of agency intending to rent
privately-owned buildings or spaces for their use, or to lease out government-
owned buildings or spaces for private use, shall have authority to determine the
reasonableness of the terms of the lease and the rental rates thereof, and to
enter into such lease contracts without need of prior approval by higher
authorities, subject to compliance with the uniform standards or guidelines
established pursuant to Section 6 hereof by the DPWH and to the audit
jurisdiction of COA or its duly authorized representative in accordance with
existing rules and regulations.

In sum, E.O. No. 301 applies only to contracts for the purchase of supplies, materials and
equipment, and it was merely to change the system of administrative review of emergency
purchases, as theretofore prescribed by E.O. No. 298, that E.O. No. 301 was issued on July 26,
1987. Part B of this Executive Order applies to leases of buildings, not of equipment, and
therefore does not govern the lease contract in this case. Even if it applies, it does not require
public bidding for entering into it.

Our holding that E.O. No. 301, §1 applies only to contracts of purchase and sale is conformable
to P.D. No. 526, promulgated on August 2, 1974, which is in pari materia. P.D. No. 526 requires
local governments to hold public bidding in the "procurement of supplies." By
specifying "procurement of supplies" and excepting from the general rule "purchases" when
made under certain circumstances, P.D. No. 526, §12 indicates quite clearly that it applies only
to contracts of purchase and sale. This provision reads:

§12. Procurement without public bidding. — Procurement of supplies may be

made without the benefit of public bidding in the following modes:

(1) Personal canvass of responsible merchants;

(2) Emergency purchases;

(3) Direct purchases from manufacturers or exclusive distributors;

(4) Thru the Bureau of Supply Coordination; and

(5) Purchase from other government entities or foreign governments.

Sec. 3 broadly defines the term "supplies" as including —

everything except real estate, which may be needed in the

transaction of public business, or in the pursuit of any undertaking,
project, or activity, whether of the nature of equipment, furniture,
stationery, materials for construction, or personal property of any
sort, including non-personal or contractual services such as the
repair and maintenance of equipment and furniture, as well as
trucking, hauling, janitorial, security, and related or analogous
services.

Thus, the texts of both E.O. No. 301, §1 and of P.D. No. 526, §§1 and 12, make it clear that only
contracts for the purchase and sale of supplies, materials and equipment are contemplated by
the rule concerning public biddings.

Finally, it is contended that equipment leases are attractive and commonly used in place of
contracts of purchase and sale because of "multifarious credit and tax constraints" and therefore
could not have been left out from the requirement of public bidding. Obviously these credit and
tax constraints can have no attraction to the government when considering the advantages of
sale over lease of equipment. The fact that lease contracts are in common use is not a reason
for implying that the rule on public bidding applies not only to government purchases but also to
lease contracts. For the fact also is that the government leases equipment, such as copying
machines, personal computers and the like, without going through public bidding.

FOR THE FOREGOING REASONS, the motion for reconsideration of petitioners is DENIED
with finality.

SO ORDERED.

Facts:
1. GR 113375 (KIlosbayan vs. Guingona) held invalidity of the contract between Philippine
Charity Sweepstakes Office (PCSO) and the privately owned Philippine Gaming
Management Corporation (PGMC) for the operation of a nationwide on-line lottery system.
The contract violated the provision in the PCSO Charter which prohibits PCSO from holding
and conducting lotteries through a collaboration, association, or joint venture.
2. Both parties again signed an Equipment Lease Agreement (ELA) for online lottery
equipment and accessories on January 25, 1995. The agreement are as follow:
4. Rental is 4.3% of gross amount of ticket sales by PCSO at which in no case be less
than an annual rental computed at P35,000 per terminal in commercial operation.
5. Rent is computed bi-weekly.
6. Term is 8 years.
7. PCSO is to employ its own personnel and responsible for the facilities.
8. Upon expiration of term, PCSO can purchase the equipment at P25M.
3. Kilosbayan again filed a petition to declare amended ELA invalid because:
4. It is the same as the old contract of lease.
5. It is still violative of PCSO’s charter.
6. It is violative of the law regarding public bidding. It has not been approved by the
President and it is not most advantageous to the government.
PCSO and PGMC filed separate comments
0. ELA is a different lease contract with none of the vestiges in the prior contract.
1. ELA is not subject to public bidding because it fell in the exception provided in EO No.
301.
2. Power to determine if ELA is advantageous vests in the Board of Directors of PCSO.
3. Lack of funds. PCSO cannot purchase its own online lottery equipment.
4. Petitioners seek to further their moral crusade.
5. Petitioners do not have a legal standing because they were not parties to the contract.

Issues:

1. Whether or not petitioner Kilosbayan, Incorporated has a legal standing to sue.

2. Whether or not the ELA between PCSO and PGMC in operating an online lottery is valid.

Rulings:
In the resolution of the case, the Court held that:

1. Petitioners do not have a legal standing to sue.

 1. STARE DECISIS cannot apply. The previous ruling sustaining the standing of the
petitioners is a departure from the settled rulings on real parties in interest because no
constitutional issues were actually involved.
2. LAW OF THE CASE (opinion delivered on a former appeal) cannot also apply. Since
the present case is not the same one litigated by the parties before in Kilosbayan vs.
Guingona, Jr., the ruling cannot be in any sense be regarded as “the law of this case”.
The parties are the same but the cases are not.
3. RULE ON “CONCLUSIVENESS OF JUDGMENT” cannot still apply. An issue actually
and directly passed upon and determine in a former suit cannot again be drawn in
question in any future action between the same parties involving a different cause of
action. But the rule does not apply to issues of law at least when substantially unrelated
claims are involved. When the second proceeding involves an instrument or transaction
identical with, but in a form separable from the one dealt with in the first proceeding, the
Court is free in the second proceeding to make an independent examination of the legal
matters at issue.
4. Since ELA is a different contract, the previous decision does not preclude determination
of the petitioner’s standing.
5. Standing is a concept in constitutional law and here no constitutional question is
actually involved. The more appropriate issue is whether the petitioners are ‘real parties
of interest’.
6. Question of contract of law: The real parties are those who are parties to the agreement
or are bound either principally or are prejudiced in their rights with respect to one of the
contracting parties and can show the detriment which would positively result to them
from the contract.
7. Petitioners do not have such present substantial interest. Questions to the nature or
validity of public contracts maybe made before COA or before the Ombudsman.
2. Equipment Lease Agreement (ELA) is valid.
1. It is different with the prior lease agreement: PCSO now bears all losses because the
operation of the system is completely in its hands.
2. Fixing the rental rate to a minimum is a matter of business judgment and the Court is
not inclined to review.
3. Rental rate is within the 15% net receipts fixed by law as a maximum. (4.3% of gross
receipt is discussed in the dissenting opinion of Feliciano, J.)
4. In the contract, it stated that the parties can change their agreement. Petitioners state
that this would allow PGMC to control and operate the on-line lottery system. The Court
held that the claim is speculative. In any case, in the construction of statutes, the
resumption is that in making contracts, the government has acted in good faith. The
doctrine that the possibility of abuse is not a reason for denying power.
5. It was held in Kilosbayan Vs. Guingona that PCSO does not have the power to enter
into any contract which would involve it in any form of “collaboration, association, or
joint venture” for the holding of sweepstakes activities. This only mentions that PCSO is
prohibited from investing in any activities that would compete in their own activities.
 6. It is claimed that ELA is a joint venture agreement which does not compete with their
own activities. The Court held that is also based on speculation. Evidence is needed to
show that the transfer of technology would involve the PCSO and its personnel in
prohibited association with the PGMC.
7. O. 301 (on law of public bidding) applies only to contracts for the purchase of supplies,
materials and equipment and not on the contracts of lease. Public bidding for leases are
only for privately-owned buildings or spaces for government use or of government
owned buildings or spaces for private use.

Petitioners have no standing. ELA is a valid lease contract. The motion for reconsideration of
petitioners is DENIED with finality.

7. [G.R. No. 118295. May 2, 1997]

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of the Philippine

Senate and as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as
members of the House of Representatives and as taxpayers; NICANOR P. PERLAS
and HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES UNION,
NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR
ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG KAUNLARAN
FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION MOVEMENT,
DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as
non-governmental organizations, petitioners, vs. EDGARDO ANGARA, ALBERTO
ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO,
RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA,
GLORIA MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN
OSMEA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO
TATAD and FREDDIE WEBB, in their respective capacities as members of the
Philippine Senate who concurred in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization;
SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and Management;
CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry; ROBERTO
SEBASTIAN, in his capacity as Secretary of Agriculture; ROBERTO DE OCAMPO,
in his capacity as Secretary of Finance; ROBERTO ROMULO, in his capacity as
Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as
Executive Secretary, respondents.

DECISION
PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted by the
membership thereto of the vast majority of countries has revolutionized international business
and economic relations amongst states. It has irreversibly propelled the world towards trade
liberalization and economic globalization. Liberalization, globalization, deregulation and
privatization, the third-millennium buzz words, are ushering in a new borderless world of
business by sweeping away as mere historical relics the heretofore traditional modes of
promoting and protecting national economies like tariffs, export subsidies, import quotas,
quantitative restrictions, tax exemptions and currency controls. Finding market niches and
becoming the best in specific industries in a market-driven and export-oriented global scenario
are replacing age-old beggar-thy-neighbor policies that unilaterally protect weak and inefficient
domestic producers of goods and services. In the words of Peter Drucker, the well-known
management guru, Increased participation in the world economy has become the key to
domestic economic growth and prosperity.

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War,
plans for the establishment of three multilateral institutions -- inspired by that grand political
body, the United Nations -- were discussed at Dumbarton Oaks and Bretton
Woods.The first was the World Bank (WB) which was to address the rehabilitation and
reconstruction of war-ravaged and later developing countries; the second, the International
Monetary Fund (IMF) which was to deal with currency problems; and the third, the International
Trade Organization (ITO), which was to foster order and predictability in world trade and to
minimize unilateral protectionist policies that invite challenge, even retaliation, from other
states. However, for a variety of reasons, including its non-ratification by the United States, the
ITO, unlike the IMF and WB, never took off. What remained was only GATT -- the General
Agreement on Tariffs and Trade. GATT was a collection of treaties governing access to the
economies of treaty adherents with no institutionalized body administering the agreements or
dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy
Round, the Tokyo Round and the Uruguay Round, the world finally gave birth to that
administering body -- the World Trade Organization -- with the signing of the Final Act in
Marrakesh, Morocco and the ratification of the WTO Agreement by its members.[1]
Like many other developing countries, the Philippines joined WTO as a founding member
with the goal, as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of
improving Philippine access to foreign markets, especially its major trading partners, through the
reduction of tariffs on its exports, particularly agricultural and industrial products. The
President also saw in the WTO the opening of new opportunities for the services sector x x x,
(the reduction of) costs and uncertainty associated with exporting x x x, and (the attraction of)
more investments into the country. Although the Chief Executive did not expressly mention it in
his letter, the Philippines - - and this is of special interest to the legal profession - - will benefit
from the WTO system of dispute settlement by judicial adjudication through the independent
WTO settlement bodies called (1) Dispute Settlement Panels and (2) Appellate
Tribunal. Heretofore, trade disputes were settled mainly through negotiations where solutions
were arrived at frequently on the basis of relative bargaining strengths, and where naturally,
weak and underdeveloped countries were at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines to place nationals and products of
member-countries on the same footing as Filipinos and local products and (2) that the WTO
intrudes, limits and/or impairs the constitutional powers of both Congress and the Supreme
Court, the instant petition before this Court assails the WTO Agreement for violating the
mandate of the 1987 Constitution to develop a self-reliant and independent national economy
effectively controlled by Filipinos x x x (to) give preference to qualified Filipinos (and to) promote
the preferential use of Filipino labor, domestic materials and locally produced goods.
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide
trade liberalization and economic globalization? Does it prescribe Philippine integration into a
global economy that is liberalized, deregulated and privatized? These are the main questions
raised in this petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of
Court praying (1) for the nullification, on constitutional grounds, of the concurrence of the
Philippine Senate in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization (WTO Agreement, for brevity) and (2) for the
prohibition of its implementation and enforcement through the release and utilization of public
funds, the assignment of public officials and employees, as well as the use of government
properties and resources by respondent-heads of various executive offices concerned
therewith. This concurrence is embodied in Senate Resolution No. 97, dated December 14,
1994.

The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of

the Department of Trade and Industry (Secretary Navarro, for brevity), representing the
Government of the Republic of the Philippines, signed in Marrakesh, Morocco, the Final Act
Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final Act, for brevity).
By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of the Philippines,
agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective
competent authorities, with a view to seeking approval of the Agreement in accordance with
their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

On August 12, 1994, the members of the Philippine Senate received a letter dated August
11, 1994 from the President of the Philippines,[3] stating among others that the Uruguay Round
Final Act is hereby submitted to the Senate for its concurrence pursuant to Section 21, Article
VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received another letter from the
President of the Philippines[4] likewise dated August 11, 1994, which stated among others that
the Uruguay Round Final Act, the Agreement Establishing the World Trade Organization, the
Ministerial Declarations and Decisions, and the Understanding on Commitments in Financial
Services are hereby submitted to the Senate for its concurrence pursuant to Section 21, Article
VII of the Constitution.
On December 9, 1994, the President of the Philippines certified the necessity of the
immediate adoption of P.S. 1083, a resolution entitled Concurring in the Ratification of the
Agreement Establishing the World Trade Organization.[5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which Resolved,
as it is hereby resolved, that the Senate concur, as it hereby concurs, in the ratification by the
President of the Philippines of the Agreement Establishing the World Trade Organization.[6] The
text of the WTO Agreement is written on pages 137 et seq. of Volume I of the 36-
volume Uruguay Round of Multilateral Trade Negotiations and includes various agreements and
associated legal instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto
and collectively referred to as Multilateral Trade Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994

 Agreement on Agriculture

Agreement on the Application of Sanitary and

Phytosanitary Measures

Agreement on Textiles and Clothing

Agreement on Technical Barriers to Trade

Agreement on Trade-Related Investment Measures

Agreement on Implementation of Article VI of the General Agreement on

Tariffs and Trade 1994

Agreement on Implementation of Article VII of the General on Tariffs and

Trade 1994

Agreement on Pre-Shipment Inspection

Agreement on Rules of Origin

Agreement on Imports Licensing Procedures

Agreement on Subsidies and Coordinating Measures

Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing the Settlement of

Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed[7] the Instrument of
Ratification, declaring:

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the
Philippines, after having seen and considered the aforementioned Agreement Establishing the
World Trade Organization and the agreements and associated legal instruments included in
Annexes one (1), two (2) and three (3) of that Agreement which are integral parts thereof,
signed at Marrakesh, Morocco on 15 April 1994, do hereby ratify and confirm the same and
every Article and Clause thereof.

To emphasize, the WTO Agreement ratified by the President of the Philippines is

composed of the Agreement Proper and the associated legal instruments included in Annexes
one (1), two (2) and three (3) of that Agreement which are integral parts thereof.
 On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO
Agreement (and its integral annexes aforementioned) but also (1) the Ministerial Declarations
and Decisions and (2) the Understanding on Commitments in Financial Services. In his
Memorandum dated May 13, 1996,[8] the Solicitor General describes these two latter documents
as follows:

The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide
range of matters, such as measures in favor of least developed countries, notification
procedures, relationship of WTO with the International Monetary Fund (IMF), and agreements
on technical barriers to trade and on dispute settlement.

The Understanding on Commitments in Financial Services dwell on, among other things,
standstill or limitations and qualifications of commitments to existing non-conforming measures,
market access, national treatment, and definitions of non-resident supplier of financial services,
commercial presence and new financial service.

On December 29, 1994, the present petition was filed. After careful deliberation on
respondents comment and petitioners reply thereto, the Court resolved on December 12, 1995,
to give due course to the petition, and the parties thereafter filed their respective
memoranda. The Court also requested the Honorable Lilia R. Bautista, the Philippine
Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a paper,
hereafter referred to as Bautista Paper,[9] for brevity, (1) providing a historical background of and
(2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and
(2) the transcript of proceedings/hearings in the Senate; and

(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed
prior to the Philippine adherence to the WTO Agreement, which derogate from Philippine
sovereignty and (2) copies of the multi-volume WTO Agreement and other documents
mentioned in the Final Act, as soon as possible.

After receipt of the foregoing documents, the Court said it would consider the case
submitted for resolution. In a Compliance dated September 16, 1996, the Solicitor General
submitted a printed copy of the 36-volume Uruguay Round of Multilateral Trade Negotiations,
and in another Compliance dated October 24, 1996, he listed the various bilateral or multilateral
treaties or international instruments involving derogation of Philippine sovereignty. Petitioners,
on the other hand, submitted their Compliance dated January 28, 1997, on January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:

A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the deliberations and
voting leading to the concurrence are estopped from impugning the validity of the
Agreement Establishing the World Trade Organization or of the validity of the
concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade Organization
contravene the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of
the 1987 Philippine Constitution.
 D. Whether provisions of the Agreement Establishing the World Trade Organization unduly
limit, restrict and impair Philippine sovereignty specifically the legislative power which,
under Sec. 2, Article VI, 1987 Philippine Constitution is vested in the Congress of the
Philippines;

E. Whether provisions of the Agreement Establishing the World Trade Organization

interfere with the exercise of judicial power.

F. Whether the respondent members of the Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction when they voted for concurrence in the
ratification of the constitutionally-infirm Agreement Establishing the World Trade
Organization.

G. Whether the respondent members of the Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction when they concurred only in the ratification
of the Agreement Establishing the World Trade Organization, and not with the
Presidential submission which included the Final Act, Ministerial Declaration and
Decisions, and the Understanding on Commitments in Financial Services.

On the other hand, the Solicitor General as counsel for respondents synthesized the
several issues raised by petitioners into the following:[10]

1. Whether or not the provisions of the Agreement Establishing the World Trade Organization
and the Agreements and Associated Legal Instruments included in Annexes one (1), two (2)
and three (3) of that agreement cited by petitioners directly contravene or undermine the letter,
spirit and intent of Section 19, Article II and Sections 10 and 12, Article XII of the 1987
Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise
of legislative power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by
this Honorable Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate in the ratification by the President of the
Philippines of the Agreement establishing the World Trade Organization implied rejection of the
treaty embodied in the Final Act.

By raising and arguing only four issues against the seven presented by petitioners, the
Solicitor General has effectively ignored three, namely: (1) whether the petition presents a
political question or is otherwise not justiciable; (2) whether petitioner-members of the Senate
(Wigberto E. Taada and Anna Dominique Coseteng) are estopped from joining this suit; and (3)
whether the respondent-members of the Senate acted in grave abuse of discretion when they
voted for concurrence in the ratification of the WTO Agreement.The foregoing notwithstanding,
this Court resolved to deal with these three issues thus:

(1) The political question issue -- being very fundamental and vital, and being a matter that
probes into the very jurisdiction of this Court to hear and decide this case -- was deliberated
upon by the Court and will thus be ruled upon as the first issue;

(2) The matter of estoppel will not be taken up because this defense is waivable and the
respondents have effectively waived it by not pursuing it in any of their pleadings; in any event,
this issue, even if ruled in respondents favor, will not cause the petitions dismissal as there are
petitioners other than the two senators, who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be
taken up as an integral part of the disposition of the four issues raised by the Solicitor General.

During its deliberations on the case, the Court noted that the respondents did not question
the locus standi of petitioners. Hence, they are also deemed to have waived the benefit of such
issue. They probably realized that grave constitutional issues, expenditures of public funds and
serious international commitments of the nation are involved here, and that transcendental
public interest requires that the substantive issues be met head on and decided on the merits,
rather than skirted or deflected by procedural matters.[11]
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE
STATED, DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH
THIS COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE
PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY
CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF
JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS
ANNEXES SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT
INCLUDE THE FINAL ACT, MINISTERIAL DECLARATIONS AND DECISIONS, AND
THE UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute. The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld.[12] Once a controversy as to the application or interpretation of a
constitutional provision is raised before this Court (as in the instant case), it becomes a legal
issue which the Court is bound by constitutional mandate to decide.[13]
The jurisdiction of this Court to adjudicate the matters[14] raised in the petition is clearly set
out in the 1987 Constitution,[15] as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government.

The foregoing text emphasizes the judicial departments duty and power to strike down
grave abuse of discretion on the part of any branch or instrumentality of government including
Congress. It is an innovation in our political law.[16] As explained by former Chief Justice Roberto
Concepcion,[17] the judiciary is the final arbiter on the question of whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is
not only a judicial power but a duty to pass judgment on matters of this nature.
 As this Court has repeatedly and firmly emphasized in many cases,[18] it will not shirk,
digress from or abandon its sacred duty and authority to uphold the Constitution in matters that
involve grave abuse of discretion brought before it in appropriate cases, committed by any
officer, agency, instrumentality or department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain, speedy or
adequate remedy in the ordinary course of law, we have no hesitation at all in holding that this
petition should be given due course and the vital questions raised therein ruled upon under Rule
65 of the Rules of Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies
to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative
and executive officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will not
review the wisdom of the decision of the President and the Senate in enlisting the country into
the WTO, or pass upon the merits of trade liberalization as a policy espoused by said
international body. Neither will it rule on the propriety of the governments economic policy of
reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other import/trade
barriers. Rather, it will only exercise its constitutional duty to determine whether or not there had
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
Senate in ratifying the WTO Agreement and its three annexes.

Second Issue: The WTO Agreement and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution mandating
economic nationalism are violated by the so-called parity provisions and national treatment
clauses scattered in various parts not only of the WTO Agreement and its annexes but also in
the Ministerial Decisions and Declarations and in the Understanding on Commitments in
Financial Services.
Specifically, the flagship constitutional provisions referred to are Sec. 19, Article II, and
Secs. 10 and 12, Article XII, of the Constitution, which are worded as follows:

Article II

DECLARATION OF PRINCIPLES AND STATE POLICIES

xx xx xx xx

Sec. 19. The State shall develop a self-reliant and independent national economy effectively
controlled by Filipinos.

xx xx xx xx

Article XII

NATIONAL ECONOMY AND PATRIMONY

xx xx xx xx

Sec. 10. x x x. The Congress shall enact measures that will encourage the formation and
operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos.
 xx xx xx xx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and
locally produced goods, and adopt measures that help make them competitive.

Petitioners aver that these sacred constitutional principles are desecrated by the following
WTO provisions quoted in their memorandum:[19]

a) In the area of investment measures related to trade in goods (TRIMS, for brevity):

Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994. no Member shall
apply any TRIM that is inconsistent with the provisions of Article III or Article XI of
GATT 1994.

2. An Illustrative list of TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph I of Article XI of
GATT 1994 is contained in the Annex to this Agreement. (Agreement on Trade-
Related Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p.22121,
emphasis supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatment provided for
in paragraph 4 of Article III of GATT 1994 include those which are mandatory or
enforceable under domestic law or under administrative rulings, or compliance
with which is necessary to obtain an advantage, and which require:

(a) the purchase or use by an enterprise of products of domestic origin or from any
domestic source, whether specified in terms of particular products, in terms of
volume or value of products, or in terms of proportion of volume or value of its local
production; or

(b) that an enterprises purchases or use of imported products be limited to an amount

related to the volume or value of local products that it exports.

2. TRIMS that are inconsistent with the obligations of general elimination of quantitative
restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which
are mandatory or enforceable under domestic laws or under administrative rulings, or
compliance with which is necessary to obtain an advantage, and which restrict:

(a) the importation by an enterprise of products used in or related to the local

production that it exports;

(b) the importation by an enterprise of products used in or related to its local production
by restricting its access to foreign exchange inflows attributable to the enterprise; or

(c) the exportation or sale for export specified in terms of particular products, in terms
of volume or value of products, or in terms of a preparation of volume or value of its
 local production. (Annex to the Agreement on Trade-Related Investment Measures,
Vol. 27, Uruguay Round Legal Documents, p.22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into the territory of any other
contracting party shall be accorded treatment no less favorable than that accorded to like
products of national origin in respect of laws, regulations and requirements affecting their
internal sale, offering for sale, purchase, transportation, distribution or use. the provisions of this
paragraph shall not prevent the application of differential internal transportation charges which
are based exclusively on the economic operation of the means of transport and not on the
nationality of the product.(Article III, GATT 1947, as amended by the Protocol Modifying Part II,
and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to paragraph 1(a) of
the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal Instruments
p.177, emphasis supplied).

b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):

Each Member shall accord to the nationals of other Members treatment no less
favourable than that it accords to its own nationals with regard to the protection of
intellectual property... (par. 1, Article 3, Agreement on Trade-Related Aspect of Intellectual
Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432 (emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any conditions and
qualifications set out therein, each Member shall accord to services and service
suppliers of any other Member, in respect of all measures affecting the supply of
services, treatment no less favourable than it accords to its own like services
and service suppliers.

2. A Member may meet the requirement of paragraph I by according to services and

service suppliers of any other Member, either formally identical treatment or formally
different treatment to that it accords to its own like services and service suppliers.

3. Formally identical or formally different treatment shall be considered to be less

favourable if it modifies the conditions of completion in favour of services or service
suppliers of the Member compared to like services or service suppliers of any other
Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay
Round Legal Instruments, p.22610 emphasis supplied).

It is petitioners position that the foregoing national treatment and parity provisions of the
WTO Agreement place nationals and products of member countries on the same footing as
Filipinos and local products, in contravention of the Filipino First policy of the Constitution. They
allegedly render meaningless the phrase effectively controlled by Filipinos. The constitutional
conflict becomes more manifest when viewed in the context of the clear duty imposed on the
Philippines as a WTO member to ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed
agreements.[20] Petitioners further argue that these provisions contravene constitutional
limitations on the role exports play in national development and negate the preferential
treatment accorded to Filipino labor, domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor General counter (1) that such
Charter provisions are not self-executing and merely set out general policies; (2) that these
nationalistic portions of the Constitution invoked by petitioners should not be read in isolation
but should be related to other relevant provisions of Art. XII, particularly Secs. 1 and 13 thereof;
(3) that read properly, the cited WTO clauses do not conflict with the Constitution; and (4) that
the WTO Agreement contains sufficient provisions to protect developing countries like the
Philippines from the harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.

Declaration of Principles Not Self-Executing

By its very title, Article II of the Constitution is a declaration of principles and state
policies. The counterpart of this article in the 1935 Constitution[21] is called the basic political
creed of the nation by Dean Vicente Sinco.[22] These principles in Article II are not intended to
be self-executing principles ready for enforcement through the courts.[23] They are used by the
judiciary as aids or as guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs.
Morato,[24] the principles and state policies enumerated in Article II and some sections of Article
XII are not self-executing provisions, the disregard of which can give rise to a cause of action in
the courts. They do not embody judicially enforceable constitutional rights but guidelines for
legislation.
In the same light, we held in Basco vs. Pagcor[25] that broad constitutional principles need
legislative enactments to implement them, thus:

On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and
13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2
(Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also that these are
merely statements of principles and policies. As such, they are basically not self-executing,
meaning a law should be passed by Congress to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing principles
ready for enforcement through the courts. They were rather directives addressed to the
executive and to the legislature. If the executive and the legislature failed to heed the directives
of the article, the available remedy was not judicial but political. The electorate could express
their displeasure with the failure of the executive and the legislature through the language of the
ballot. (Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of broad constitutional
principles are sourced from basic considerations of due process and the lack of judicial authority
to wade into the uncharted ocean of social and economic policy making.Mr. Justice Florentino
P. Feliciano in his concurring opinion in Oposa vs. Factoran, Jr.,[26] explained these reasons as
follows:

My suggestion is simply that petitioners must, before the trial court, show a more specific legal
right -- a right cast in language of a significantly lower order of generality than Article II (15) of
the Constitution -- that is or may be violated by the actions, or failures to act, imputed to the
public respondent by petitioners so that the trial court can validly render judgment granting all or
part of the relief prayed for. To my mind, the court should be understood as simply saying that
such a more specific legal right or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the existence of the Philippine
Environment Code, and that the trial court should have given petitioners an effective opportunity
so to demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of
action be a specific, operable legal right, rather than a constitutional or statutory policy, for at
least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to
defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.

The second is a broader-gauge consideration -- where a specific violation of law or applicable

regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the
Constitution which reads:

Section 1. x x x

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. (Emphases supplied)

When substantive standards as general as the right to a balanced and healthy ecology and the
right to health are combined with remedial standards as broad ranging as a grave abuse of
discretion amounting to lack or excess of jurisdiction, the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of social and economic policy making. At
least in respect of the vast area of environmental protection and management, our courts have
no claim to special technical competence and experience and professional qualification. Where
no specific, operable norms and standards are shown to exist, then the policy making
departments -- the legislative and executive departments -- must be given a real and effective
opportunity to fashion and promulgate those norms and standards, and to implement them
before the courts should intervene.

Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain

Balanced Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general
principles relating to the national economy and patrimony, should be read and understood in
relation to the other sections in said article, especially Secs. 1 and 13 thereof which read:

Section 1. The goals of the national economy are a more equitable distribution of opportunities,
income, and wealth; a sustained increase in the amount of goods and services produced by the
nation for the benefit of the people; and an expanding productivity as the key to raising the
quality of life for all, especially the underprivileged.

The State shall promote industrialization and full employment based on sound agricultural
development and agrarian reform, through industries that make full and efficient use of human
and natural resources, and which are competitive in both domestic and foreign
markets. However, the State shall protect Filipino enterprises against unfair foreign competition
and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be
given optimum opportunity to develop. x x x

xxxxxxxxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all
forms and arrangements of exchange on the basis of equality and reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national
economic development, as follows:
 1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation for the
benefit of the people; and
3. An expanding productivity as the key to raising the quality of life for all especially the
underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic
nationalism (1) by expressing preference in favor of qualified Filipinos in the grant of rights,
privileges and concessions covering the national economy and patrimony[27] and in the use of
Filipino labor, domestic materials and locally-produced goods; (2) by mandating the State to
adopt measures that help make them competitive;[28] and (3) by requiring the State to develop a
self-reliant and independent national economy effectively controlled by Filipinos.[29] In similar
language, the Constitution takes into account the realities of the outside world as it requires the
pursuit of a trade policy that serves the general welfare and utilizes all forms and arrangements
of exchange on the basis of equality and reciprocity;[30] and speaks of industries which are
competitive in both domestic and foreign markets as well as of the protection of Filipino
enterprises against unfair foreign competition and trade practices.
It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance
System, et al.,[31] this Court held that Sec. 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no further guidelines
or implementing laws or rules for its enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per se judicially enforceable. However, as the
constitutional provision itself states, it is enforceable only in regard to the grants of rights,
privileges and concessions covering national economy and patrimony and not to every aspect of
trade and commerce. It refers to exceptions rather than the rule. The issue here is not whether
this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a
rule, there are enough balancing provisions in the Constitution to allow the Senate to ratify the
Philippine concurrence in the WTO Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services,
labor and enterprises, at the same time, it recognizes the need for business exchange with the
rest of the world on the bases of equality and reciprocity and limits protection of Filipino
enterprises only against foreign competition and trade practices that are unfair. [32] In other
words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine economy. While the
Constitution does not encourage the unlimited entry of foreign goods, services and investments
into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.

WTO Recognizes Need to Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in
advantages to protect weak and developing economies, which comprise the vast majority of its
members. Unlike in the UN where major states have permanent seats and veto powers in the
Security Council, in the WTO, decisions are made on the basis of sovereign equality, with each
members vote equal in weight to that of any other. There is no WTO equivalent of the UN
Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial

Conference and the General Council shall be taken by the majority of the votes cast, except in
cases of interpretation of the Agreement or waiver of the obligation of a member which would
require three fourths vote. Amendments would require two thirds vote in general. Amendments
to MFN provisions and the Amendments provision will require assent of all members. Any
member may withdraw from the Agreement upon the expiration of six months from the date of
notice of withdrawals.[33]
 Hence, poor countries can protect their common interests more effectively through the
WTO than through one-on-one negotiations with developed countries. Within the WTO,
developing countries can form powerful blocs to push their economic agenda more decisively
than outside the Organization. This is not merely a matter of practical alliances but a negotiating
strategy rooted in law. Thus, the basic principles underlying the WTO Agreement recognize the
need of developing countries like the Philippines to share in the growth in international
trade commensurate with the needs of their economic development. These basic principles are
found in the preamble[34] of the WTO Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should be
conducted with a view to raising standards of living, ensuring full employment and a large and
steadily growing volume of real income and effective demand, and expanding the production of
and trade in goods and services, while allowing for the optimal use of the worlds resources in
accordance with the objective of sustainable development, seeking both to protect and preserve
the environment and to enhance the means for doing so in a manner consistent with their
respective needs and concerns at different levels of economic development,

Recognizing further that there is need for positive efforts designed to ensure that developing
countries, and especially the least developed among them, secure a share in the growth in
international trade commensurate with the needs of their economic development,

Being desirous of contributing to these objectives by entering into reciprocal and mutually
advantageous arrangements directed to the substantial reduction of tariffs and other barriers to
trade and to the elimination of discriminatory treatment in international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral trading
system encompassing the General Agreement on Tariffs and Trade, the results of past trade
liberalization efforts, and all of the results of the Uruguay Round of Multilateral Trade
Negotiations,

Determined to preserve the basic principles and to further the objectives underlying this
multilateral trading system, x x x. (underscoring supplied.)

Specific WTO Provisos Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the foregoing
basic principles, the WTO Agreement grants developing countries a more lenient treatment,
giving their domestic industries some protection from the rush of foreign competition. Thus, with
respect to tariffs in general, preferential treatment is given to developing countries in terms of
the amount of tariff reduction and the period within which the reduction is to be spread
out. Specifically, GATT requires an average tariff reduction rate of 36% for developed countries
to be effected within a period of six (6) years while developing countries -- including the
Philippines -- are required to effect an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic
support to agricultural products by 20% over six (6) years, as compared to only 13% for
developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires developed countries to
reduce their budgetary outlays for export subsidy by 36% and export volumes receiving export
subsidy by 21% within a period of six (6) years. For developing countries, however, the
reduction rate is only two-thirds of that prescribed for developed countries and a longer period of
ten (10) years within which to effect such reduction.
 Moreover, GATT itself has provided built-in protection from unfair foreign competition and
trade practices including anti-dumping measures, countervailing measures and safeguards
against import surges. Where local businesses are jeopardized by unfair foreign competition,
the Philippines can avail of these measures. There is hardly therefore any basis for the
statement that under the WTO, local industries and enterprises will all be wiped out and that
Filipinos will be deprived of control of the economy. Quite the contrary, the weaker situations of
developing nations like the Philippines have been taken into account; thus, there would be no
basis to say that in joining the WTO, the respondents have gravely abused their
discretion. True, they have made a bold decision to steer the ship of state into the yet uncharted
sea of economic liberalization. But such decision cannot be set aside on the ground of grave
abuse of discretion, simply because we disagree with it or simply because we believe only in
other economic policies. As earlier stated, the Court in taking jurisdiction of this case will not
pass upon the advantages and disadvantages of trade liberalization as an economic policy. It
will only perform its constitutional duty of determining whether the Senate committed grave
abuse of discretion.

Constitution Does Not Rule Out Foreign Competition

Furthermore, the constitutional policy of a self-reliant and independent national

economy[35] does not necessarily rule out the entry of foreign investments, goods and
services. It contemplates neither economic seclusion nor mendicancy in the international
community. As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this
constitutional policy:

Economic self-reliance is a primary objective of a developing country that is keenly aware of

overdependence on external assistance for even its most basic needs. It does not mean autarky
or economic seclusion; rather, it means avoiding mendicancy in the international
community.Independence refers to the freedom from undue foreign control of the national
economy, especially in such strategic industries as in the development of natural resources and
public utilities.[36]

The WTO reliance on most favored nation, national treatment, and trade without
discrimination cannot be struck down as unconstitutional as in fact they are rules of equality and
reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on
equality and reciprocity,[37] the fundamental law encourages industries that are competitive in
both domestic and foreign markets, thereby demonstrating a clear policy against a sheltered
domestic trade environment, but one in favor of the gradual development of robust industries
that can compete with the best in the foreign markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity to compete internationally. And given a free
trade environment, Filipino entrepreneurs and managers in Hongkong have demonstrated the
Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire.

Constitution Favors Consumers, Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any business or
enterprise, nor does it contain any specific pronouncement that Filipino companies should be
pampered with a total proscription of foreign competition. On the other hand,respondents claim
that WTO/GATT aims to make available to the Filipino consumer the best goods and services
obtainable anywhere in the world at the most reasonable prices. Consequently, the question
boils down to whether WTO/GATT will favor the general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?
 Will WTO/GATT succeed in promoting the Filipinos general welfare because it will -- as
promised by its promoters -- expand the countrys exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and quality products at the
most reasonable rates to the Filipino public?
The responses to these questions involve judgment calls by our policy makers, for which
they are answerable to our people during appropriate electoral exercises. Such questions and
the answers thereto are not subject to judicial pronouncements based on grave abuse of
discretion.

Constitution Designed to Meet Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted
and ratified in 1987. That does not mean however that the Charter is necessarily flawed in the
sense that its framers might not have anticipated the advent of a borderless world of
business. By the same token, the United Nations was not yet in existence when the 1935
Constitution became effective. Did that necessarily mean that the then Constitution might not
have contemplated a diminution of the absoluteness of sovereignty when the Philippines signed
the UN Charter, thereby effectively surrendering part of its control over its foreign relations to
the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the
vagaries of contemporary events. They should be interpreted to cover even future and unknown
circumstances. It is to the credit of its drafters that a Constitution can withstand the assaults of
bigots and infidels but at the same time bend with the refreshing winds of change necessitated
by unfolding events. As one eminent political law writer and respected jurist[38] explains:

The Constitution must be quintessential rather than superficial, the root and not the blossom,
the base and framework only of the edifice that is yet to rise. It is but the core of the dream that
must take shape, not in a twinkling by mandate of our delegates, but slowly in the crucible of
Filipino minds and hearts, where it will in time develop its sinews and gradually gather its
strength and finally achieve its substance. In fine, the Constitution cannot, like the goddess
Athena, rise full-grown from the brow of the Constitutional Convention, nor can it conjure by
mere fiat an instant Utopia. It must grow with the society it seeks to re-structure and march
apace with the progress of the race, drawing from the vicissitudes of history the dynamism and
vitality that will keep it, far from becoming a petrified rule, a pulsing, living law attuned to the
heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that (e)ach Member shall ensure the conformity of its laws,
regulations and administrative procedures with its obligations as provided in the annexed
Agreements.[39] Petitioners maintain that this undertaking unduly limits, restricts and impairs
Philippine sovereignty, specifically the legislative power which under Sec. 2, Article VI of the
1987 Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the
sovereign powers of the Philippines because this means that Congress could not pass
legislation that will be good for our national interest and general welfare if such legislation will
not conform with the WTO Agreement, which not only relates to the trade in goods x x x but also
to the flow of investments and money x x x as well as to a whole slew of agreements on socio-
cultural matters x x x.[40]
More specifically, petitioners claim that said WTO proviso derogates from the power to tax,
which is lodged in the Congress.[41] And while the Constitution allows Congress to authorize the
President to fix tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts, such authority is subject to specified limits and x x x such limitations and
restrictions as Congress may provide,[42] as in fact it did under Sec. 401 of the Tariff and
Customs Code.

Sovereignty Limited by International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners stressed
their arguments on this issue. However, while sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic level, it is however subject to restrictions and
limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the
family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the
country from the rest of the world. In its Declaration of Principles and State Policies, the
Constitution adopts the generally accepted principles of international law as part of the law of
the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity,
with all nations."[43] By the doctrine of incorporation, the country is bound by generally accepted
principles of international law, which are considered to be automatically part of our own
laws.[44] One of the oldest and most fundamental rules in international law is pacta sunt
servanda -- international agreements must be performed in good faith. A treaty engagement is
not a mere moral obligation but creates a legally binding obligation on the parties x x x. A state
which has contracted valid international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the obligations undertaken.[45]
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By
their voluntary act, nations may surrender some aspects of their state power in exchange for
greater benefits granted by or derived from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits,
they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties
have been used to record agreements between States concerning such widely diverse matters
as, for example, the lease of naval bases, the sale or cession of territory, the termination of war,
the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial
relations, the settling of claims, the laying down of rules governing conduct in peace and the
establishment of international organizations.[46] The sovereignty of a state therefore cannot in
fact and in reality be considered absolute. Certain restrictions enter into the picture: (1)
limitations imposed by the very nature of membership in the family of nations and (2) limitations
imposed by treaty stipulations. As aptly put by John F. Kennedy, Today, no nation can build its
destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is
here.[47]

UN Charter and Other Treaties Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it
consented to restrict its sovereign rights under the concept of sovereignty as auto-limitation.47-
A
Under Article 2 of the UN Charter, (a)ll members shall give the United Nations every
assistance in any action it takes in accordance with the present Charter, and shall refrain from
giving assistance to any state against which the United Nations is taking preventive or
enforcement action. Such assistance includes payment of its corresponding share not merely in
administrative expenses but also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that
money used by the United Nations Emergency Force in the Middle East and in the Congo were
expenses of the United Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its
members must bear their corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to appropriate funds whether it
agrees with such peace-keeping expenses or not. So too, under Article 105 of the said Charter,
the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting again
the exercise of sovereignty of members within their own territory. Another example: although
sovereign equality and domestic jurisdiction of all members are set forth as underlying principles
in the UN Charter, such provisos are however subject to enforcement measures decided by the
Security Council for the maintenance of international peace and security under Chapter VII of
the Charter. A final example: under Article 103, (i)n the event of a conflict between the
obligations of the Members of the United Nations under the present Charter and their
obligations under any other international agreement, their obligation under the present charter
shall prevail, thus unquestionably denying the Philippines -- as a member -- the sovereign
power to make a choice as to which of conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many other international pacts --
both bilateral and multilateral -- that involve limitations on Philippine sovereignty. These are
enumerated by the Solicitor General in his Compliance dated October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where the
Philippines agreed, among others, to exempt from tax, income received in the
Philippines by, among others, the Federal Reserve Bank of the United States, the
Export/Import Bank of the United States, the Overseas Private Investment Corporation
of the United States. Likewise, in said convention, wages, salaries and similar
remunerations paid by the United States to its citizens for labor and personal services
performed by them as employees or officials of the United States are exempt from
income tax by the Philippines.

(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double
taxation with respect to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.

(d) Bilateral convention with the French Republic for the avoidance of double taxation.

(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt
from all customs duties, inspection fees and other duties or taxes aircrafts of South
Korea and the regular equipment, spare parts and supplies arriving with said aircrafts.

(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from
customs duties, excise taxes, inspection fees and other similar duties, taxes or charges
fuel, lubricating oils, spare parts, regular equipment, stores on board Japanese aircrafts
while on Philippine soil.

(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air
carriers the same privileges as those granted to Japanese and Korean air carriers
under separate air service agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the
Philippines exempted Israeli nationals from the requirement of obtaining transit or visitor
visas for a sojourn in the Philippines not exceeding 59 days.

(I) Bilateral agreement with France exempting French nationals from the requirement of
obtaining transit and visitor visa for a sojourn not exceeding 59 days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises
of Special Missions in the Philippines are inviolable and its agents can not enter said
premises without consent of the Head of Mission concerned. Special Missions are also
exempted from customs duties, taxes and related charges.

(k) Multilateral Convention on the Law of Treaties. In this convention, the Philippines
agreed to be governed by the Vienna Convention on the Law of Treaties.
 (l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the
International Court of Justice. The International Court of Justice has jurisdiction in all
legal disputes concerning the interpretation of a treaty, any question of international
law, the existence of any fact which, if established, would constitute a breach of
international obligation.

In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its
sovereign powers of taxation, eminent domain and police power. The underlying consideration
in this partial surrender of sovereignty is the reciprocal commitment of the other contracting
states in granting the same privilege and immunities to the Philippines, its officials and its
citizens. The same reciprocity characterizes the Philippine commitments under WTO-GATT.

International treaties, whether relating to nuclear disarmament, human rights, the environment,
the law of the sea, or trade, constrain domestic political sovereignty through the assumption of
external obligations. But unless anarchy in international relations is preferred as an alternative,
in most cases we accept that the benefits of the reciprocal obligations involved outweigh the
costs associated with any loss of political sovereignty. (T)rade treaties that structure relations by
reference to durable, well-defined substantive norms and objective dispute resolution
procedures reduce the risks of larger countries exploiting raw economic power to bully smaller
countries, by subjecting power relations to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from trade liberalization. This is due to the
simple fact that liberalization will provide access to a larger set of potential new trading
relationship than in case of the larger country gaining enhanced success to the smaller countrys
market.[48]

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be
waived without violating the Constitution, based on the rationale that the Philippines adopts the
generally accepted principles of international law as part of the law of the land and adheres to
the policy of x x x cooperation and amity with all nations.

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles
of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)[49] intrudes
on the power of the Supreme Court to promulgate rules concerning pleading, practice and
procedures.[50]
To understand the scope and meaning of Article 34, TRIPS,[51] it will be fruitful to restate its
full text as follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of the
owner referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a
process for obtaining a product, the judicial authorities shall have the authority to order the
defendant to prove that the process to obtain an identical product is different from the
patented process. Therefore, Members shall provide, in at least one of the following
circumstances, that any identical product when produced without the consent of the patent
owner shall, in the absence of proof to the contrary, be deemed to have been obtained by
the patented process:

(a) if the product obtained by the patented process is new;

 (b) if there is a substantial likelihood that the identical product was made by the
process and the owner of the patent has been unable through reasonable efforts to
determine the process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1
shall be on the alleged infringer only if the condition referred to in subparagraph (a) is
fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in

protecting their manufacturing and business secrets shall be taken into account.

From the above, a WTO Member is required to provide a rule of disputable (note the words
in the absence of proof to the contrary) presumption that a product shown to be identical to one
produced with the use of a patented process shall be deemed to have been obtained by the
(illegal) use of the said patented process, (1) where such product obtained by the patented
product is new, or (2) where there is substantial likelihood that the identical product was made
with the use of the said patented process but the owner of the patent could not determine the
exact process used in obtaining such identical product. Hence, the burden of proof
contemplated by Article 34 should actually be understood as the duty of the alleged patent
infringer to overthrow such presumption. Such burden, properly understood, actually refers to
the burden of evidence (burden of going forward) placed on the producer of the identical (or
fake) product to show that his product was produced without the use of the patented process.
The foregoing notwithstanding, the patent owner still has the burden of proof since,
regardless of the presumption provided under paragraph 1 of Article 34, such owner still has to
introduce evidence of the existence of the alleged identical product, the fact that it is identical to
the genuine one produced by the patented process and the fact of newness of the genuine
product or the fact of substantial likelihood that the identical product was made by the patented
process.
The foregoing should really present no problem in changing the rules of evidence as the
present law on the subject, Republic Act No. 165, as amended, otherwise known as the Patent
Law, provides a similar presumption in cases of infringement of patented design or utility model,
thus:

SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility model shall
consist in unauthorized copying of the patented design or utility model for the purpose of trade
or industry in the article or product and in the making, using or selling of the article or product
copying the patented design or utility model. Identity or substantial identity with the patented
design or utility model shall constitute evidence of copying. (underscoring supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a disputable

presumption applies only if (1) the product obtained by the patented process is NEW or (2) there
is a substantial likelihood that the identical product was made by the process and the process
owner has not been able through reasonable effort to determine the process used. Where either
of these two provisos does not obtain, members shall be free to determine the appropriate
method of implementing the provisions of TRIPS within their own internal systems and
processes.
By and large, the arguments adduced in connection with our disposition of the third issue --
derogation of legislative power - will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any actually exists.Besides, Article 34
does not contain an unreasonable burden, consistent as it is with due process and the concept
of adversarial dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on patents,
trademarks and copyrights, the adjustment in legislation and rules of procedure will not be
substantial.[52]
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents
Contained in the Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes --
but not in the other documents referred to in the Final Act, namely the Ministerial Declaration
and Decisions and the Understanding on Commitments in Financial Services -- is defective and
insufficient and thus constitutes abuse of discretion. They submit that such concurrence in the
WTO Agreement alone is flawed because it is in effect a rejection of the Final Act, which in turn
was the document signed by Secretary Navarro, in representation of the Republic upon
authority of the President. They contend that the second letter of the President to the
Senate[53] which enumerated what constitutes the Final Act should have been the subject of
concurrence of the Senate.
A final act, sometimes called protocol de clture, is an instrument which records the
winding up of the proceedings of a diplomatic conference and usually includes a reproduction of
the texts of treaties, conventions, recommendations and other acts agreed upon and signed by
the plenipotentiaries attending the conference.[54] It is not the treaty itself. It is rather a summary
of the proceedings of a protracted conference which may have taken place over several
years. The text of the Final Act Embodying the Results of the Uruguay Round of Multilateral
Trade Negotiations is contained in just one page[55] in Vol. I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro as representative
of the Republic of the Philippines undertook:

"(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective
competent authorities with a view to seeking approval of the Agreement in accordance
with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions."

The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final
Act required from its signatories, namely, concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for
ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT which
provides that representatives of the members can meet to give effect to those provisions of this
Agreement which invoke joint action, and generally with a view to facilitating the operation and
furthering the objectives of this Agreement.[56]
The Understanding on Commitments in Financial Services also approved in Marrakesh
does not apply to the Philippines. It applies only to those 27 Members which have indicated in
their respective schedules of commitments on standstill, elimination of monopoly, expansion of
operation of existing financial service suppliers, temporary entry of personnel, free transfer and
processing of information, and national treatment with respect to access to payment, clearing
systems and refinancing available in the normal course of business.[57]
On the other hand, the WTO Agreement itself expresses what multilateral agreements are
deemed included as its integral parts,[58] as follows:

Article II

Scope of the WTO

1. The WTO shall provide the common institutional framework for the conduct of trade
relations among its Members in matters to the agreements and associated legal
instruments included in the Annexes to this Agreement.
 2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3
(hereinafter referred to as Multilateral Agreements) are integral parts of this Agreement,
binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4 (hereinafter

referred to as Plurilateral Trade Agreements) are also part of this Agreement for those
Members that have accepted them, and are binding on those Members. The Plurilateral
Trade Agreements do not create either obligation or rights for Members that have not
accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter
referred to as GATT 1994) is legally distinct from the General Agreement on Tariffs and
Trade, dated 30 October 1947, annexed to the Final Act adopted at the conclusion of the
Second Session of the Preparatory Committee of the United Nations Conference on Trade
and Employment, as subsequently rectified, amended or modified (hereinafter referred to
as GATT 1947).

It should be added that the Senate was well-aware of what it was concurring in as shown
by the members deliberation on August 25, 1994. After reading the letter of President Ramos
dated August 11, 1994,[59] the senators of the Republic minutely dissected what the Senate was
concurring in, as follows: [60]

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first
day hearing of this Committee yesterday. Was the observation made by Senator Taada that
what was submitted to the Senate was not the agreement on establishing the World Trade
Organization by the final act of the Uruguay Round which is not the same as the agreement
establishing the World Trade Organization? And on that basis, Senator Tolentino raised a point
of order which, however, he agreed to withdraw upon understanding that his suggestion for an
alternative solution at that time was acceptable. That suggestion was to treat the proceedings of
the Committee as being in the nature of briefings for Senators until the question of the
submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new... is he making a new
submission which improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.

THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Taada and later on Senator Tolentino since they were
the ones that raised this question yesterday?

Senator Taada, please.

SEN. TAADA: Thank you, Mr. Chairman.

Based on what Secretary Romulo has read, it would now clearly appear that what is being
submitted to the Senate for ratification is not the Final Act of the Uruguay Round, but rather the
Agreement on the World Trade Organization as well as the Ministerial Declarations and
Decisions, and the Understanding and Commitments in Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator Tolentino? And after
him Senator Neptali Gonzales and Senator Lina.

SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us
but I saw the draft of his earlier, and I think it now complies with the provisions of the
Constitution, and with the Final Act itself. The Constitution does not require us to ratify the Final
Act. It requires us to ratify the Agreement which is now being submitted. The Final Act itself
specifies what is going to be submitted to with the governments of the participants.

In paragraph 2 of the Final Act, we read and I quote:

By signing the present Final Act, the representatives agree: (a) to submit as appropriate the
WTO Agreement for the consideration of the respective competent authorities with a view to
seeking approval of the Agreement in accordance with their procedures.

In other words, it is not the Final Act that was agreed to be submitted to the governments for
ratification or acceptance as whatever their constitutional procedures may provide but it is the
World Trade Organization Agreement. And if that is the one that is being submitted now, I think
it satisfies both the Constitution and the Final Act itself.

Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.

SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And
they had been adequately reflected in the journal of yesterdays session and I dont see any
need for repeating the same.

Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any
comment on this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of
the abundance of question. Then the new submission is, I believe, stating the obvious and
therefore I have no further comment to make.

Epilogue

In praying for the nullification of the Philippine ratification of the WTO Agreement,
petitioners are invoking this Courts constitutionally imposed duty to determine whether or not
there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the Senate in giving its concurrence therein via Senate Resolution No. 97. Procedurally, a
writ of certiorari grounded on grave abuse of discretion may be issued by the Court under Rule
65 of the Rules of Court when it is amply shown that petitioners have no other plain, speedy and
adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction.[61] Mere abuse of discretion is not enough. It must
be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, and must be so patent and so gross as to amount to
an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.[62] Failure on the part of the petitioner to show grave abuse of discretion
will result in the dismissal of the petition.[63]
 In rendering this Decision, this Court never forgets that the Senate, whose act is under
review, is one of two sovereign houses of Congress and is thus entitled to great respect in its
actions. It is itself a constitutional body independent and coordinate, and thus its actions are
presumed regular and done in good faith. Unless convincing proof and persuasive arguments
are presented to overthrow such presumptions, this Court will resolve every doubt in its
favor. Using the foregoing well-accepted definition of grave abuse of discretion and the
presumption of regularity in the Senates processes, this Court cannot find any cogent reason to
impute grave abuse of discretion to the Senates exercise of its power of concurrence in the
WTO Agreement granted it by Sec. 21 of Article VII of the Constitution.[64]
It is true, as alleged by petitioners, that broad constitutional principles require the State to
develop an independent national economy effectively controlled by Filipinos; and to protect
and/or prefer Filipino labor, products, domestic materials and locally produced goods. But it is
equally true that such principles -- while serving as judicial and legislative guides -- are not in
themselves sources of causes of action. Moreover, there are other equally fundamental
constitutional principles relied upon by the Senate which mandate the pursuit of a trade policy
that serves the general welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity and the promotion of industries which are competitive in both
domestic and foreign markets, thereby justifying its acceptance of said treaty. So too, the
alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced
by the adoption of the generally accepted principles of international law as part of the law of the
land and the adherence of the Constitution to the policy of cooperation and amity with all
nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its
consent to the WTO Agreement thereby making it a part of the law of the land is a legitimate
exercise of its sovereign duty and power. We find no patent and gross arbitrariness or
despotism by reason of passion or personal hostility in such exercise. It is not impossible to
surmise that this Court, or at least some of its members, may even agree with petitioners that it
is more advantageous to the national interest to strike down Senate Resolution No. 97. But that
is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its
decision. To do so would constitute grave abuse in the exercise of our own judicial power and
duty. Ineludably, what the Senate did was a valid exercise of its authority. As to whether such
exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is
a matter between the elected policy makers and the people. As to whether the nation should
join the worldwide march toward trade liberalization and economic globalization is a matter that
our people should determine in electing their policy makers. After all, the WTO Agreement
allows withdrawal of membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance[65] where the East will become the dominant region of the world economically,
politically and culturally in the next century. He refers to the free market espoused by WTO as
the catalyst in this coming Asian ascendancy. There are at present about 31 countries including
China, Russia and Saudi Arabia negotiating for membership in the WTO. Notwithstanding
objections against possible limitations on national sovereignty, the WTO remains as the only
viable structure for multilateral trading and the veritable forum for the development of
international trade law. The alternative to WTO is isolation, stagnation, if not economic self-
destruction. Duly enriched with original membership, keenly aware of the advantages and
disadvantages of globalization with its on-line experience, and endowed with a vision of the
future, the Philippines now straddles the crossroads of an international strategy for economic
prosperity and stability in the new millennium. Let the people, through their duly authorized
elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza,
Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur.
Padilla, and Vitug, JJ., in the result.
Justiciable Question; Theory of Auto-Limitation; Declaration of Principles and State

Policiegberto E. Tanada et al, in

Facts:
This is a case petition by Sen. Wigberto Tanada, together with other lawmakers, taxpayers, and
various NGO’s to nullify the Philippine ratification of the World Trade Organization (WTO)
Agreement.

Petitioners believe that this will be detrimental to the growth of our National Economy and
against to the “Filipino First” policy. The WTO opens access to foreign markets, especially its
major trading partners, through the reduction of tariffs on its exports, particularly agricultural and
industrial products. Thus, provides new opportunities for the service sector cost and uncertainty
associated with exporting and more investment in the country. These are the predicted benefits
as reflected in the agreement and as viewed by the signatory Senators, a “free market”
espoused by WTO.

Petitioners also contends that it is in conflict with the provisions of our constitution, since the
said Agreement is an assault on the sovereign powers of the Philippines because it meant that
Congress could not pass legislation that would be good for national interest and general welfare
if such legislation would not conform to the WTO Agreement.

Issues:

1. Whether or not the petition present a justiciable controversy.

2. Whether or not the provisions of the ‘Agreement Establishing the World Trade Organization
and the Agreements and Associated Legal Instruments included in Annexes one (1), two (2)
and three (3) of that agreement’ cited by petitioners directly contravene or undermine the
letter, spirit and intent of Section 19, Article II and Sections 10 and 12, Article XII of the
1987 Constitution.
3. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the
exercise of legislative power by Congress.
4. Whether or not certain provisions of the Agreement impair the exercise of judicial power by
this Honorable Court in promulgating the rules of evidence.
5. Whether or not the concurrence of the Senate ‘in the ratification by the President of the
Philippines of the Agreement establishing the World Trade Organization’ implied rejection of
the treaty embodied in the Final Act.

Discussions:

 1987 Constitution states that Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and enforceable,
 and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
 Although the Constitution mandates to develop a self-reliant and independent national
economy controlled by Filipinos, does not necessarily rule out the entry of foreign
investments, goods and services. It contemplates neither “economic seclusion” nor
“mendicancy in the international community.” The WTO itself has some built-in advantages
to protect weak and developing economies, which comprise the vast majority of its
members. Unlike in the UN where major states have permanent seats and veto powers in
the Security Council, in the WTO, decisions are made on the basis of sovereign equality,
with each member’s vote equal in weight to that of any other. Hence, poor countries can
protect their common interests more effectively through the WTO than through one-on-one
negotiations with developed countries. Within the WTO, developing countries can form
powerful blocs to push their economic agenda more decisively than outside the
Organization. Which is not merely a matter of practical alliances but a negotiating strategy
rooted in law. Thus, the basic principles underlying the WTO Agreement recognize the need
of developing countries like the Philippines to “share in the growth in international trade
commensurate with the needs of their economic development.”
 In its Declaration of Principles and State Policies, the Constitution “adopts the generally
accepted principles of international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity, with all nations. By the
doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own laws. A state
which has contracted valid international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the obligations undertaken.
Paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS) may intrudes on the power of
the Supreme Court to promulgate rules concerning pleading, practice and procedures. With
regard to Infringement of a design patent, WTO members shall be free to determine the
appropriate method of implementing the provisions of TRIPS within their own internal
systems and processes.
 The alleged impairment of sovereignty in the exercise of legislative and judicial powers is
balanced by the adoption of the generally accepted principles of international law as part of
the law of the land and the adherence of the Constitution to the policy of cooperation and
amity with all nations. The Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement thereby making it “a part of the law
of the land” is a legitimate exercise of its sovereign duty and power.

Rulings:
1. In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only
the right but in fact the duty of the judiciary to settle the dispute. As explained by former
Chief Justice Roberto Concepcion, “the judiciary is the final arbiter on the question of
whether or not a branch of government or any of its officials has acted without jurisdiction or
in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on
matters of this nature.”
2. While the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of
the world on the bases of equality and reciprocity and limits protection of Filipino enterprises
only against foreign competition and trade practices that are unfair. In other words, the
Constitution did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine economy. While the
Constitution does not encourage the unlimited entry of foreign goods, services and
investments into the country, it does not prohibit them either. In fact, it allows an exchange
on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.
3. By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By
their voluntary act, nations may surrender some aspects of their state power in exchange
for greater benefits granted by or derived from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually covenanted objectives and
benefits, they also commonly agree to limit the exercise of their otherwise absolute rights.
As shown by the foregoing treaties Philippines has entered, a portion of sovereignty may be
waived without violating the Constitution, based on the rationale that the Philippines “adopts
the generally accepted principles of international law as part of the law of the land and
adheres to the policy of cooperation and amity with all nations.”
4. The provision in Article 34 of WTO agreement does not contain an unreasonable burden,
consistent as it is with due process and the concept of adversarial dispute settlement
inherent in our judicial system.
5. The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act
required from its signatories, namely, concurrence of the Senate in the WTO Agreement.
Moreover, the Senate was well-aware of what it was concurring in as shown by the
members’ deliberation on August 25, 1994. After reading the letter of President Ramos
dated August 11, 1994, the senators of the Republic minutely dissected what the Senate
was concurring in.
 8. G.R. No. L-25024 March 30, 1970

TEODORO C. SANTIAGO, JR. Minor, Represented by his Mother, Mrs. Angelita C.

Santiago, petitioner-appellant,
vs.
MISS JUANITA BAUTISTA, ROSALINDA ALPAS, REBECCA MATUGAS, MILKITA
INAMAC, ROMEO AGUSTIN, AIDA CAMINO, LUNA SARMAGO, AURORA LORENA,
SOLEDAD FRANCISCO and MR. FLOR MARCELO, respondents-appellees.

Teodoro M. Santiago for petitioner-appellant.

Ramon C. Carag for respondent-apellees.

BARREDO, J.:

Appeal from the order of the Court of First Instance of Cotabato dismissing, on a motion to
dismiss, its Civil Case No. 2012 — for certiorari, injunction and damages — on the ground that
the complaint therein states no cause of action, and from the subsequent order of the court a
quo denying the motion for the reconsideration of the said order of dismissal.

The record shows that at the time Civil Case No. 2012 was commenced in the court below,
appellant Teodoro Santiago, Jr. was a pupil in Grade Six at the public school named Sero
Elementary School in Cotabato City. As the school year 1964-1965 was then about to end, the
"Committee On The Rating Of Students For Honor" was constituted by the teachers concerned
at said school for the purpose of selecting the "honor students" of its graduating class. With the
school Principal, Mrs. Aurora Lorena, as chairman, and Juanita Bautista, Rosalinda Alpas,
Rebecca Matugas, Milkita Inamac, Romeo Agustin, Aida Camino and Luna Sarmago, as
members, the above-named committee deliberated and finally adjudged Socorro Medina,
Patricia Liñgat and Teodoro C. Santiago, Jr. as first, second and third honors, respectively. The
school's graduation exercises were thereafter set for May 21, 1965; but three days before that
date, the "third placer" Teodoro Santiago, Jr., represented by his mother, and with his father as
counsel, sought the invalidation of the "ranking of honor students" thus made, by instituting the
above-mentioned civil case in the Court of First Instance of Cotabato, against the above-named
committee members along with the District Supervisor and the Academic Supervisor of the
place.

The corresponding complaint filed alleged, inter alia: that plaintiff-petitioner Teodoro C.
Santiago, Jr. is a sixth grader at the Sero Elementary School in Cotabato City scheduled to be
graduated on May 21st, 1965 with the honor rank of third place, which is disputed; that the
teachers of the school had been made respondents as they compose the "Committee on the
Rating of Student for Honor", whose grave abuse of official discretion is the subject of suit, while
the other defendants were included as Principal, District Supervisor and Academic Supervisor of
the school; that Teodoro Santiago, Jr. had been a consistent honor pupil from Grade I to Grade
V of the Sero Elementary School, while Patricia Liñgat (second placer in the disputed ranking in
Grade VI) had never been a close rival of petitioner before, except in Grade V wherein she
ranked third; that Santiago, Jr. had been prejudiced, while his closest rival had been so much
benefited, by the circumstance that the latter, Socorro Medina, was coached and tutored during
the summer vacation of 1964 by Mrs. Alpas who became the teacher of both pupils in English in
Grade VI, resulting in the far lead Medina obtained over the other pupil; that the committee
referred to in this case had been illegally constituted as the same was composed of all the
Grade VI teachers only, in violation of the Service Manual for Teachers of the Bureau of Public
Schools which provides that the committee to select the honor students should be composed of
all teachers in Grades V and VI; that there are direct and circumstantial matters, which shall be
proven during the trial, wherein respondents have exercised grave abuse of discretion and
irregularities, such as the changing of the final ratings on the grading sheets of Socorro Medina
and Patricia Liñgat from 80% to 85%, and some teachers giving petitioner a starting grade of
75% in Grade VI, which proves that there has already an intention to pull him to a much lower
rank at the end of the school year; that several district examinations outside of teachers' daily
units and other than periodical tests were given, ratings in which were heavily considered in the
determination of periodical ratings, whereas according to the Academic Supervisor and Acting
Division Superintendent of schools of the place such district examinations were not advisable;
that there was a unanimous agreement and understanding among the respondent teachers to
insult and prejudice the second and third honors by rating Socorro Medina with a perfect score,
which is very unnatural; that the words "first place" in petitioner's certificate in Grade I was
erased and replaced with the words "second place", which is an instance of the unjust and
discriminating abuses committed by the respondent teachers in the disputed selection of honor
pupils they made; that petitioner personally appealed the matter to the School Principal, to the
District Supervisor, and to the Academic Supervisor, but said officials "passed the buck to each
other" to delay his grievances, and as to appeal to higher authorities will be too late, there is no
other speedy and adequate remedy under the circumstances; and, that petitioner and his
parents suffered mental and moral damages in the amount of P10,000.00. They prayed the
court, among others, to set aside the final list of honor students in Grade VI of the Sero
Elementary School for that school year 1964-1965, and, during the pendency of the suit, to
enjoin the respondent teachers from officially and formally publishing and proclaiming the said
honor pupils in Grade VI in the graduation exercises the school was scheduled to hold on the
21st of May of that year 1965. The injunction prayed for was denied by the lower court in its
order of May 20, 1965, the said court reasoning out that the graduation exercises were then
already set on the following day, May 21, 1965, and the restraining of the same would be
shocking to the school authorities, parents, and the community who had eagerly looked forward
to the coming of that yearly happy event. As scheduled, the graduation exercises of the Sero
Elementary School for the school year 1964-1965 was held on May 21, with the same protested
list of honor students.

Having been required by the above-mentioned order to answer the petition within ten (10) days,
respondents moved for the dismissal of the case instead. Under date of May 24, 1965, they filed
a motion to dismiss, on the grounds (1) that the action for certiorari was improper, and (2) that
even assuming the propriety of the action, the question brought before the court had already
become academic. This was opposed by petitioner.

In an order dated June 4, 1965, the motion to dismiss of respondents was granted, the court
reasoning thus:

The respondents now move to dismiss the petition for being improper and for
being academic. In order to resolve the motion to dismiss, the Court has carefully
examined the petition to determine the sufficiency of the alleged cause of action
constituting the special civil action of certiorari.

The pertinent portions of the petition alleging 'grave abuse of discretion' are
found in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10. These allegations may be
substantially summarized as follows: Paragraph 3 alleges that since grades one
to six, the students closely contending for class honors were Socorro Medina,
Teodoro Santiago, Jr., Dolores Dalican and Patricia Liñgat.

Socorro Medina obtained first honor thrice (grades I, V and VI); once second
honor (grade IV), and twice third place (grades II and III).

Teodoro Santiago, Jr. obtained first place once (grade IV); four times second
place (grades I, II, III, and V) and once third place (grade VI).
 Dolores Dalican obtained twice first place (grades II, III); once third place (grade
I).

Patricia Liñgat once third place (grade V); and once second place (grade VI).

That as now ranked in the graduation Liñgat is given second place while Teodoro
Santiago, Jr., is given the third place only. This is the ranking now disputed by
petitioner, Teodoro Santiago, Jr.

Paragraph 4 alleges that Socorro Medina was tutored in the summer of 1964 by
Mrs. Rosalinda Alpas who became her English teacher in the sixth grade; that as
such, Mrs. Alpas unjustly favored Socorro against her rivals.

Paragraph 5 alleges that the teachers who composed the committee on honor
students are all grade six teachers while the Service Manual For Teachers
provides that the committee shall be composed of the teachers from the fifth and
sixth grades.

Paragraph 6 alleges that there are direct and circumstantial evidence showing
the change of ratings of Socorro Medina and Patricia Liñgat from 80% to 85%
and the intention to junk petitioner to a lower rank.

Paragraph 7 alleges that the giving of district examinations upon which ratings
were partly based were not advisable.

Paragraph 8 alleges that the teachers rated Socorro Medina a perfect pupil which
is unnatural.

Paragraph 9 alleges that on the first grade certificate of the petitioner the word
"First Place" was erased and changed to "Second Place".

Paragraph 10 alleges that petitioner personally appealed to the school authorities

but they only 'passed the buck to each other.'

SECOND PARAGRAPH VIOLATED

Rule 65, Section 1 of the Rules of Court provides:

'Section 1. Petition for certiorari. — When any tribunal, board, or

officer exercising judicial functions, has acted without or in excess
of its or his jurisdiction, or with grave abuse of discretion and there
is no appeal, nor any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the
proceedings, as the law requires, of such tribunal, board or
officer.'

'The petition shall be accompanied by a certified true copy of the

judgment or order subject thereof, together with copies of all
pleadings and documents relevant and pertinent thereto.'

It is striking, indeed, that this petition has not been accompanied by a certified
true copy of the judgment or order complained of, together with all pleadings and
documents which are relevant thereto, as required by the second, paragraph of
the aforequoted rule. This violation renders the petition extremely indefinite and
 uncertain. There is no written formal judgment or order of respondents that is
submitted for revision or correction of this Court. This violation is fatal to the
petition.

ADMINISTRATIVE REMEDIES NEGLECTED

All that the petition alleges is that the petitioner personally appealed to the school
authorities who only 'passed the buck to each other.' This allegation does not
show that petitioner formally availed of and exhausted the administrative
remedies of the Department of Education. The petition implies that this is the first
formal complaint of petitioner against his teachers. The administrative agencies
of the Department of Education could have investigated the grievances of the
petitioner with dispatch and give effective remedies, but petitioner negligently
abandoned them. Petitioner cannot now claim that he lacked any plain, speedy
and adequate remedy.

NO GRAVE ABUSE OF DISCRETION

Allegations relating to the alleged 'grave abuse of discretion' on the part of

teachers refer to errors, mistakes, or irregularities rather than to real grave abuse
of discretion that would amount to lack of jurisdiction. Mere commission of errors
in the exercise of jurisdiction may not be corrected by means of certiorari.

In view of the foregoing, the Court is of the opinion, and so holds, that the petition
states no cause of action and should be, as it is hereby dismissed.

Upon receipt of a copy of the above-quoted order, the petitioner moved for the reconsideration
thereof, but the same proved to be futile, hence, this appeal.

Appellant here assails the holding of the lower court that his petition states no cause of action
on the grounds — discussed by the court a quo in the appealed order above-quoted — (1) that
the petition does not comply with the second paragraph of Sec. 1 of Rule 65 because it has not
been accompanied by a certified true copy of the judgment or order subject thereof, together
with copies of all pleadings and documents relevant and pertinent thereto; (2) that administrative
remedies were not first exhausted; and (3) that there was no grave abuse of discretion on the
part of the teachers who constituted the committee referred to. On the other hand, appellees
maintain that the court below did not err in dismissing the case on said grounds. Further, they
argue in favor of the questioned order of dismissal upon the additional ground that the
"committee on the ratings of students for honor" whose actions are here condemned by
appellant is not the "tribunal, board or officer exercising judicial functions" against which an
action for certiorari may lie under Section 1 of Rule 65.

The last point raised by appellees deserves first consideration, for if really the said committee of
teachers does not fall within the category of the tribunal, board, or officer exercising judicial
functions contemplated by Rule 65, further discussion of the issues raised by appellant may no
longer be necessary. To resolve this problem the following tests may be employed:

In this jurisdiction certiorari is a special civil action instituted against 'any tribunal,
board, or officer exercising judicial functions.' (Section 1, Rule 67.) A judicial
function is an act performed by virtue of judicial powers; the exercise of a judicial
function is the doing of something in the nature of the action of the court (34 C.J.
1182). In order that a special civil action of certiorari may be invoked in this
jurisdiction the following circumstances must exist: (1) that there must be a
specific controversy involving rights of persons or property and said controversy
is brought before a tribunal, board or officer for hearing and determination of their
respective rights and obligations.
 'Judicial action is an adjudication upon the rights of parties who in
general appear or are brought before the tribunal by notice or
process, and upon whose claims some decision or judgment is
rendered. It implies impartiality, disinterestedness, a weighing of
adverse claims, and is inconsistent with discretion on the one
hand — for the tribunal must decide according to law and the
rights of the parties — or with dictation on the other; for in the first
instance it must exercise its own judgment under the law, and not
act under a mandate from another power. ... The character of its
action in a given case must decide whether that action is judicial,
ministerial, or legislative, or whether it be simply that of a public
agent of the country or State, as in its varied jurisdictions it may by
turns be each.' (In Re Saline County Subscription, 100 Am. Dec.
337, 338, cited in Southeastern Greyhound Lines v. Georgia
Public Service Commission, 181 S. E. 836-837.)

'It may be said generally that the exercise of judicial function is to

determine what the law is, and what the legal rights of parties are,
with respect to a matter in controversy; and whenever an officer is
clothed with that authority, and undertakes to determine those
questions, he acts judicially.' (State ex rel. Board of
Commissioners of St. Louis County, et al. v. Dunn, 90 N. W. 772-
773.)

(2) the tribunal, board or officer before whom the controversy is brought must
have the power and authority to pronounce judgment and render a decision on
the controversy construing and applying the laws to that end.

'The phrase "judicial power" is not capable of a precise definition

which would be applicable to all cases. The term has been
variously defined as the authority to determine the rights of
persons or property by arbitrating between adversaries in specific
controversies at the instance of a party thereto; the authority
exercised by that department of government which is charged with
the declaration of what the law is and its construction so far as it is
written law; the authority or power vested in the judges or in the
courts; the authority vested in some court, officer, or persons to
hear and determine when the rights of persons or property or the
propriety of doing an act is the subject matter of adjudication; the
power belonging to or emanating from a judge as such; the power
conferred upon a public officer, involving the exercise of judgment
and discretion in the determination of questions of right in specific
cases affecting the interest of persons or property, as
distinguished from ministerial power or authority to carry out the
mandates of judicial power or the law; the power exercised by
courts in hearing and determining cases before them, or some
matter incidental thereto, and of which they have jurisdiction; the
power of a court to decide and pronounce a judgment; the power
which adjudicates upon and protects the rights and interests of
individual citizens, and to that end construes and applies the law.
"Judicial power" implies the construction of laws and the
adjudication of legal rights. It includes the power to hear and
determine but not everyone who may hear and determine has
judicial power. The term "judicial power" does not necessarily
include the power to hear and determine a matter that is not in the
nature of a suit or action between the parties.' (34 C.J. 1183-
1184.) .
 (3) the tribunal, board or officer must pertain to that branch of the sovereign
power which belongs to the judiciary, or at least, which does not belong to the
legislative or executive department.

... the distinction between legislative or ministerial functions and

judicial functions is difficult to point out. What is a judicial function
does not depend solely upon the mental operation by which it is
performed or the importance of the act. In solving this question,
due regard must be had to the organic law of the state and the
division of power of government. In the discharge of executive and
legislative duties, the exercise of discretion and judgment of the
highest order is necessary, and matters of the greatest weight and
importance are dealt with. It is not enough to make a function
judicial that it requires discretion, deliberation, thought, and
judgment. It must be the exercise of discretion and judgment
within that subdivision of the sovereign power which belongs to
the judiciary, or, at least, which does not belong to the legislative
or executive department. If the matter, in respect to which it is
exercised, belongs to either of the two last-named departments of
government, it is not judicial. As to what is judicial and what is not
seems to be better indicated by the nature of a thing, than its
definition.' (Whealing & Elm Grove Railroad Co. Appt. v. Town of
Triadelphia, et al., 4 L.R.A. (N. S.) pp. 321, 328-329.) [Emphasis
supplied]1

'WHAT ARE JUDICIAL OR QUASI JUDICIAL ACTS. It is difficult,

if not impossible, precisely to define what are judicial or quasi
judicial acts, and there is considerable conflict in the decisions in
regard thereto, in connection with the law as to the right to the writ
of certiorari. It is clear, however, that it is the nature of the act to
be performed, rather than of the office, board, or body which
performs it, that determines whether or not it is the discharge of a
judicial or quasi-judicial function. It is not essential that the
proceedings should be strictly and technically judicial, in the sense
in which that word is used when applied to the courts of justice,
but it is sufficient if they are quasi judicial. It is enough if the
officers act judicially in making their decision, whatever may be
their public character. ...' "In State ex rel. Board of Commrs. vs.
Dunn (86 Minn. 301, 304), the following statements were made:

'The precise line of demarkation between what are judicial and

what are administrative or ministerial functions is often difficult to
determine. The exercise of judicial functions may involve the
performance of legislative or administrative duties, and the
performance of administrative or ministerial duties, may, in a
measure, involve the exercise of judicial functions. It may be said
generally that the exercise of judicial functions is to determine
what the law is, and what the legal rights of parties are, with
respect to a matter in controversy; and whenever an officer is
clothed with that authority, and undertakes to determine those
questions, he acts judicially.'2

It is evident, upon the foregoing authorities, that the so called committee on the rating of
students for honor whose actions are questioned in this case exercised neither judicial nor quasi
judicial functions in the performance of its assigned task. From the above-quoted portions of the
decision cited, it will be gleaned that before tribunal board, or officer may exercise judicial or
quasi judicial acts, it is necessary that there be a law that give rise to some specific rights of
persons or property under which adverse claims to such rights are made, and the controversy
ensuing therefrom is brought, in turn, before the tribunal, board or officer clothed with power and
authority to determine what that law is and thereupon adjudicate the respective rights of the
contending parties. As pointed out by appellees,3 however, there is nothing on record about any
rule of law that provides that when teachers sit down to assess the individual merits of their
pupils for purposes of rating them for honors, such function involves the determination of what
the law is and that they are therefore automatically vested with judicial or quasi judicial
functions. Worse still, this Court has not even been appraised by appellant of the pertinent
provisions of the Service Manual of Teachers for Public Schools appellees allegedly violated in
the composition of the committee they constituted thereunder, and, in the performance of that
committee's duties.

At any rate, the situation brought before Us in this case, the seemingly one of first impression, is
not without substantial parallel. In the case of Felipe vs. Leuterio, etc., et al.,4 the issue
presented for determination was whether or not the courts have the authority to reverse the
award of the board of judges of an oratorical contest, and this Court declared that the judiciary
has no power to reverse the award of the board of judges of that contest and, for that matter, it
would not interfere in literary contests, beauty contests and similar competitions. It was
reasoned out thus:

For more than thirty years oratorical tilts have been held periodically by schools
and colleges in this islands. Inter-collegiate oratorical competitions are of more
recent origin. Members of this court have taken part in them either as contestants
in their school days (In the College of Law, U.P. annual oratorical contest, first
prize was awarded to Justice Montemayor in 1914 and to Justice Labrador in
1916), or as members of the board of judges afterwards. They know some few
verdicts did not reflect the audience's preference and that errors have sometimes
been ascribed to the award of the judges. Yet no party ever presumed to invoke
judicial intervention; for it is unwritten law in such contests that the board's
decision is final and unappealable.

Like the ancient tournaments of the Sword, these tournaments of the Word apply
the highest tenets of sportsmanship: finality of referee's verdict. No alibis, no
murmurs of protest. The participants are supposed to join the competition to
contribute to its success by striving their utmost: the prizes are secondary.

No rights to the prizes may be asserted by the contestants, because theirs was
merely the privilege to compete for the prize, and that privilege did not ripen into
a demandable right unless and until they were proclaimed winners of the
competition by the appointed arbiters or referees or judges.

Incidentally, these school activities have been imported from the United States.
We found in American jurisprudence no litigation questioning the determination of
the board of judges.

Now, the fact that a particular action has had no precedent during a long period
affords some reason for doubting the existence of the right sought to be
enforced, especially where occasion for its assertion must have often arisen; and
courts are cautious before allowing it, being loath to establish a new legal
principle not in harmony with the generally accepted views thereon. (See C.J.S.
Vol. 1, p. 1012.)

We observe that in assuming jurisdiction over the matter, the respondent judge
reasoned out that where there is a wrong there is a remedy and that courts of
first instance are courts of general jurisdiction.
 The flaw in his reasoning lies in the assumption that Imperial suffered
some wrong at the hands of the board of judges. If at all, there was error on the
part of one judge, at most. Error and wrong do not mean the same thing. 'Wrong'
as used in the aforesaid principle is the deprivation or violation of a right. As
stated before, a contestant has no right to the prize unless and until he or she is
declared winner by the board of referees or judges.

Granting that Imperial suffered some loss or injury, yet in law there are instances
of 'damnum absque injuria'. This is one of them. If fraud or malice had been
proven, it would be a different proposition. But then her action should be directed
against the individual judge or judges who fraudulently or maliciously injured her.
Not against the other judges.

But even were We to assume for the moment, as the court below apparently did, that judicial
intervention might be sought in cases of this nature, still, We are inclined to sustain the order of
dismissal appealed from for failure on the part of appellant to comply with the requirements of
Section 1 of Rule 65. To be sure, the lower court's holding that appellant's failure to accompany
his petition with a copy of the judgment or order subject thereof together with copies of all
pleadings and documents relevant and pertinent thereto "is fatal to his cause" is supported not
only by the provision of that Rule but by precedents as well. In the case of Alajar, et al. vs. Court
of Industrial Relations,5where it was claimed by therein petitioners that the respondent court had
acted with grave abuse of discretion in estimating certain rice harvests involved in the case in
terms of cavans instead of cans, allegedly in complete disregard of the decision of the Court of
First Instance of Batangas in Expropriation Proceedings No. 84 and of this Court in G.R. No.
L-6191,6 and in ordering thereafter the division of the said rice harvests on the ratio of 70-30 in
favor of the tenants, this Court denied the petition for certiorari on the ground, among others, of
failure on the part of said petitioners to attach to their petition copies of the decisions allegedly
violated. Speaking thru Mr. Justice J.B.L. Reyes then, this Court held:

The petition is patently without merit. In the first place, it is not even sufficient in
form and substance to justify the issuance of the writ of certiorari prayed for. It
charges that the Court of Industrial Relations abused its discretion in
disregarding the decision of the Court of First Instance of Batangas in
Expropriation Proceedings No. 84 and of this Court in G.R. No. L-6191; yet it
does not attach to the petition the decisions allegedly violated by the Court below
and point out which particular portion or portions thereof have been disregarded
by the respondent Court.

The same principle was applied in the more recent case of NAWASA vs. Municipality of
Libmanan, et al.,7 wherein this Court dismissed (by Resolution) the petition for certiorari and
mandamus filed by the National Waterworks and Sewerage Authority against the Court of First
Instance of Camarines Sur, and the municipality of Libmanan. In the following language, this
Court emphasized the importance of complying with the said requirement of Rule 65:

While paragraph 3 of the petition speaks of the complaint filed by the respondent
municipality with the respondent court for recovery of property with damages
(Civil Case No. L-161) no copy thereof is attached to the petition.

Similarly, paragraph 4 of the petition mentions the decision rendered by the

respondent court on December 10, 1965, but no copy thereof is attached to the
petition.

Again, paragraph 5 of the petition speaks of the order of default entered by the
respondent court and of the motion for reconsideration filed by petitioner in the
case above-mentioned, but no copy of the order of default is attached to its
petition.
 Bearing in mind that the petition under consideration was filed for the purpose of
enjoining the respondent court from executing the decision rendered in Civil
Case No. L-161, the importance of the missing pleadings is obvious.

Moreover, the petition is also for the purpose of securing an order commanding
the respondent court to approve either the original or the amended record on
appeal filed petition, but no copy of either is attached to its petition.

In view of the foregoing, the petition under consideration is dismissed.

It might be true, as pointed out by appellant, that he received a copy of the programme of the
graduation exercises held by the Sero Elementary School in the morning of the very day of that
graduation exercises, implying that he could not have attached then a copy thereof (to show the
decision of the committee of teachers in the ranking of students complained of) to his petition.
The stubborn fact remains, however, that appellant had known of such decision of the said
committee of teachers much earlier, as shown by the circumstance that according to him, even
before the filing of his petition with the lower court on the 19th of May, 1965, he had personally
appealed the said committee's decision with various higher authorities of the above-named
school, who merely passed the buck to each other. Moreover, appellant mentions in his petition
various other documents or papers — as the Service Manual for Teachers allegedly violated by
appellees in the constitution of their committee; altered grading sheets; and erasures in his
Grade I certificate — which appellant never bothered to attach to his petition. There could be no
doubt then that he miserably failed to comply with the requirement of Rule 65 above-mentioned.
With this conclusion, it is no longer necessary to pass upon the other two errors assigned by
appellant.

FOR THE FOREGOING CONSIDERATIONS, the judgment appealed from is affirmed, with
costs against appellant.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee and
Villamor, JJ., concur.

9. G.R. No. L-5279 October 31, 1955

PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES, ETC., petitioner,

vs.
SECRETARY OF EDUCATION and the BOARD OF TEXTBOOKS, respondents.

Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and Enrique M. Fernando for
petitioner.
Office of the Solicitor General Pompeyo Diaz and Assistant Solicitor General Francisco Carreon
for respondents.

BENGZON, J.:

The petitioning colleges and universities request that Act No. 2706 as amended by Act No. 3075
and Commonwealth Act No. 180 be declared unconstitutional, because: A. They deprive owners
of schools and colleges as well as teachers and parents of liberty and property without due
process of law; B. They deprive parents of their natural rights and duty to rear their children for
civic efficiency; and C. Their provisions conferring on the Secretary of Education unlimited
power and discretion to prescribe rules and standards constitute an unlawful delegation of
legislative power.

A printed memorandum explaining their position in extenso is attached to the record.

The Government's legal representative submitted a mimeographed memorandum contending
that, (1) the matter constitutes no justiciable controversy exhibiting unavoidable necessity of
deciding the constitutional questions; (2) petitioners are in estoppel to challenge the validity of
the said acts; and (3) the Acts are constitutionally valid.

Petitioners submitted a lengthy reply to the above arguments.

Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and recognition of
private schools and colleges obligatory for the Secretary of Public Instruction." Under its
provisions, the Department of Education has, for the past 37 years, supervised and regulated all
private schools in this country apparently without audible protest, nay, with the general
acquiescence of the general public and the parties concerned.

It should be understandable, then, that this Court should be doubly reluctant to consider
petitioner's demand for avoidance of the law aforesaid, specially where, as respondents assert,
petitioners suffered no wrong—nor allege any—from the enforcement of the criticized statute.

It must be evident to any one that the power to declare a legislative enactment void is
one which the judge, conscious of the fallability of the human judgment, will shrink from
exercising in any case where he can conscientiously and with due regard to duty and
official oath decline the responsibility. (Cooley Constitutional Limitations, 8th Ed., Vol. I,
p. 332.)

When a law has been long treated as constitutional and important rights have become
dependent thereon, the Court may refuse to consider an attack on its validity. (C. J. S.
16, p. 204.)

As a general rule, the constitutionality of a statute will be passed on only if, and to the
extent that, it is directly and necessarily involved in a justiciable controversy and is
essential to the protection of the rights of the parties concerned. (16 C. J. S., p. 207.)

In support of their first proposition petitioners contend that the right of a citizen to own and
operate a school is guaranteed by the Constitution, and any law requiring previous
governmental approval or permit before such person could exercise said right, amounts to
censorship of previous restraint, a practice abhorent to our system of law and government.
Petitioners obviously refer to section 3 of Act No. 2706 as amended which provides that before
a private school may be opened to the public it must first obtain a permit from the Secretary of
Education. The Solicitor General on the other hand points out that none of the petitioners has
cause to present this issue, because all of them have permits to operate and
are actually operating by virtue of their permits.1 And they do not assert that the respondent
Secretary of Education has threatened to revoke their permits. They have suffered no wrong
under the terms of law—and, naturally need no relief in the form they now seek to obtain.

It is an established principle that to entitle a private individual immediately in danger of

sustaining a direct injury as the result of that action and it is not sufficient that he has
merely a general to invoke the judicial power to determine the validity of executive or
legislative action he must show that he has sustained or is interest common to all
members of the public. (Ex parte Levitt, 302 U. S. 633 82 L. Ed. 493.)

Courts will not pass upon the constitutionality of a law upon the complaint of one who
fails to show that he is injured by its operation. (Tyler vs. Judges, 179 U. S. 405;
Hendrick vs. Maryland, 235 U. S. 610; Coffman vs. Breeze Corp., 323 U. S. 316-325.)

The power of courts to declare a law unconstitutional arises only when the interests of
litigant require the use of that judicial authority for their protection against actual
interference, a hypothetical threat being insufficient. (United Public Works vs. Mitchell,
330 U .S. 75; 91 L. Ed. 754.)
 Bona fide suit.—Judicial power is limited to the decision of actual cases and
controversies. The authority to pass on the validity of statutes is incidental to the
decision of such cases where conflicting claims under the Constitution and under a
legislative act assailed as contrary to the Constitution are raised. It is legitimate only in
the last resort, and as necessity in the determination of real, earnest, and vital
controversy between litigants. (Tañada and Fernando, Constitution of the Philippines, p.
1138.)

Mere apprehension that the Secretary of Education might under the law withdraw the permit of
one of petitioners does not constitute a justiciable controversy. (Cf. Com. ex
rel Watkins vs. Winchester Waterworks (Ky.) 197 S. W. 2d. 771.)

And action, like this, is brought for a positive purpose, nay, to obtain actual and positive relief.
(Salonga vs. Warner Barnes, L-2245, January, 1951.) Courts do not sit to adjudicate mere
academic questions to satisfy scholarly interest therein, however intellectually solid the problem
may be. This is specially true where the issues "reach constitutional dimensions, for then there
comes into play regard for the court's duty to avoid decision of constitutional issues unless
avoidance becomes evasion." (Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep., May 23, 1995,
Law Ed., Vol. 99, p. 511.)

The above notwithstanding, in view of the several decisions of the United States Supreme Court
quoted by petitioners, apparently outlawing censorship of the kind objected to by them, we have
decided to look into the matter, lest they may allege we refuse to act even in the face of clear
violation of fundamental personal rights of liberty and property.

Petitioners complain that before opening a school the owner must secure a permit from the
Secretary of Education. Such requirement was not originally included in Act No. 2706. It was
introduced by Commonwealth Act No. 180 approved in 1936. Why?

In March 1924 the Philippine Legislature approved Act No. 3162 creating a Board of
Educational Survey to make a study and survey of education in the Philippines and of all
educational institutions, facilities and agencies thereof. A Board chairmaned by Dr. Paul
Munroe, Columbia University, assisted by a staff of carefully selected technical members
performed the task, made a five-month thorough and impartial examination of the local
educational system, and submitted a report with recommendations, printed as a book of 671
pages. The following paragraphs are taken from such report:

PRIVATE-ADVENTURE SCHOOLS

There is no law or regulation in the Philippine Islands today to prevent a person,

however disqualified by ignorance, greed, or even immoral character, from opening a
school to teach the young. It it true that in order to post over the door "Recognized by
the Government," a private adventure school must first be inspected by the proper
Government official, but a refusal to grant such recognition does not by any means result
in such a school ceasing to exist. As a matter of fact, there are more such unrecognized
private schools than of the recognized variety. How many, no one knows, as the Division
of Private Schools keeps records only of the recognized type.

Conclusion.—An unprejudiced consideration of the fact presented under the caption

Private Adventure Schools leads but to one conclusion, viz.: the great majority of them
from primary grade to university are money-making devices for the profit of those who
organize and administer them. The people whose children and youth attend them are
not getting what they pay for. It is obvious that the system constitutes a great evil. That it
should be permitted to exist with almost no supervision is indefensible. The suggestion
has been made with the reference to the private institutions of university grade that
some board of control be organized under legislative control to supervise their
 administration. The Commission believes that the recommendations it offers at the end
of this chapter are more likely to bring about the needed reforms.

Recommendations.—The Commission recommends that legislation be enacted to

prohibit the opening of any school by an individual or organization without the permission
of the Secretary of Public Instruction. That before granting such permission the
Secretary assure himself that such school measures up to proper standards in the
following respects, and that the continued existence of the school be dependent upon its
continuing to conform to these conditions:

(1) The location and construction of the buildings, the lighting and ventilation of the
rooms, the nature of the lavatories, closets, water supply, school furniture and
apparatus, and methods of cleaning shall be such as to insure hygienic conditions for
both pupils and teachers.

(2) The library and laboratory facilities shall be adequate to the needs of instruction in
the subjects taught.

(3) The classes shall not show an excessive number of pupils per teacher. The
Commission recommends 40 as a maximum.

(4) The teachers shall meet qualifications equal to those of teachers in the public
schools of the same grade.

xxx xxx xxx

In view of these findings and recommendations, can there be any doubt that the Government in
the exercise of its police power to correct "a great evil" could validly establish the "previous
permit" system objected to by petitioners? This is what differentiates our law from the other
statutes declared invalid in other jurisdictions. And if any doubt still exists, recourse may now be
had to the provision of our Constitution that "All educational institutions shall be under the
supervision and subject to regulation by the State." (Art. XIV, sec. 5.) The power to regulate
establishments or business occupations implies the power to require a permit or license. (53 C.
J. S. 4.)

What goes for the "previous permit" naturally goes for the power to revoke such permit on
account of violation of rules or regulations of the Department.

II. This brings us to the petitioners' third proposition that the questioned statutes "conferring on
the Secretary of Education unlimited power and discretion to prescribe rules and standards
constitute an unlawful delegation of legislative power."

This attack is specifically aimed at section 1 of Act No. 2706 which, as amended, provides:

It shall be the duty of the Secretary of Public Instruction to maintain a general standard
of efficiency in all private schools and colleges of the Philippines so that the same shall
furnish adequate instruction to the public, in accordance with the class and grade of
instruction given in them, and for this purpose said Secretary or his duly authorized
representative shall have authority to advise, inspect, and regulate said schools and
colleges in order to determine the efficiency of instruction given in the same,

"Nowhere in this Act" petitioners argue "can one find any description, either general or specific,
of what constitutes a 'general standard of efficiency.' Nowhere in this Act is there any indication
of any basis or condition to ascertain what is 'adequate instruction to the public.' Nowhere in this
Act is there any statement of conditions, acts, or factors, which the Secretary of Education must
take into account to determine the 'efficiency of instruction.'"
The attack on this score is also extended to section 6 which provides:

The Department of Education shall from time to time prepare and publish in pamphlet
form the minimum standards required of primary, intermediate, and high schools, and
colleges granting the degrees of Bachelor of Arts, Bachelor of Science, or any other
academic degree. It shall also from time to time prepare and publish in pamphlet form
the minimum standards required of law, medical, dental, pharmaceutical, engineering,
agricultural and other medical or vocational schools or colleges giving instruction of a
technical, vocational or professional character.

Petitioners reason out, "this section leaves everything to the uncontrolled discretion of the
Secretary of Education or his department. The Secretary of Education is given the power to fix
the standard. In plain language, the statute turns over to the Secretary of Education the
exclusive authority of the legislature to formulate standard. . . .."

It is quite clear the two sections empower and require the Secretary of Education to prescribe
rules fixing minimum standards of adequate and efficient instruction to be observed by all such
private schools and colleges as may be permitted to operate. The petitioners contend that as
the legislature has not fixed the standards, "the provision is extremely vague, indefinite and
uncertain"—and for that reason constitutionality objectionable. The best answer is that despite
such alleged vagueness the Secretary of Education has fixed standards to ensure adequate
and efficient instruction, as shown by the memoranda fixing or revising curricula, the school
calendars, entrance and final examinations, admission and accreditation of students etc.; and
the system of private education has, in general, been satisfactorily in operation for 37 years.
Which only shows that the Legislature did and could, validly rely upon the educational
experience and training of those in charge of the Department of Education to ascertain and
formulate minimum requirements of adequate instruction as the basis of government recognition
of any private school.

At any rate, petitioners do not show how these standards have injured any of them or interfered
with their operation. Wherefore, no reason exists for them to assail the validity of the power nor
the exercise of the power by the Secretary of Education.

True, the petitioners assert that, the Secretary has issued rules and regulations "whimsical and
capricious" and that such discretionary power has produced arrogant inspectors who "bully
heads and teachers of private schools." Nevertheless, their remedy is to challenge those
regulations specifically, and/or to ring those inspectors to book, in proper administrative or
judicial proceedings—not to invalidate the law. For it needs no argument, to show that abuse by
the officials entrusted with the execution of a statute does not per se demonstrate the
unconstitutionality of such statute.

Anyway, we find the defendants' position to be sufficiently sustained by the decision in Alegra
vs. Collector of Customs, 53 Phil., 394 upon holding the statute that authorized the Director of
Agriculture to "designate standards for the commercial grades of abaca, maguey and sisal"
against vigorous attacks on the ground of invalid delegation of legislative power.

Indeed "adequate and efficient instruction" should be considered sufficient, in the same way as
"public welfare" "necessary in the interest of law and order" "public interest" and "justice and
equity and substantial merits of the case" have been held sufficient as legislative standards
justifying delegation of authority to regulate. (See Tañada and Fernando, Constitution of the
Philippines, p. 793, citing Philippine cases.)

On this phase of the litigation we conclude that there has been no undue delegation of
legislative power.

In this connection, and to support their position that the law and the Secretary of Education have
transcended the governmental power of supervision and regulation, the petitioners appended a
list of circulars and memoranda issued by the said Department. However they failed to indicate
which of such official documents was constitutionally objectionable for being "capricious," or
pain "nuisance"; and it is one of our decisional practices that unless a constitutional point is
specifically raised, insisted upon and adequately argued, the court will not consider it.
(Santiago vs. Far Eastern, 73 Phil., 408.)

We are told that such list will give an idea of how the statute has placed in the hands of the
Secretary of Education complete control of the various activities of private schools, and why the
statute should be struck down as unconstitutional. It is clear in our opinion that the statute does
not in express terms give the Secretary complete control. It gives him powers to inspect private
schools, to regulate their activities, to give them official permits to operate under certain
conditions, and to revoke such permits for cause. This does not amount to complete control. If
any of such Department circulars or memoranda issued by the Secretary go beyond the bounds
of regulation and seeks to establish complete control, it would surely be invalid. Conceivably
some of them are of this nature, but besides not having before us the text of such circulars, the
petitioners have omitted to specify. In any event with the recent approval of Republic Act No.
1124 creating the National Board of Education, opportunity for administrative correction of the
supposed anomalies or encroachments is amply afforded herein petitioners. A more expeditious
and perhaps more technically competent forum exists, wherein to discuss the necessity,
convenience or relevancy of the measures criticized by them. (See also Republic Act No. 176.)

If however the statutes in question actually give the Secretary control over private schools, the
question arises whether the power of supervision and regulation granted to the State by section
5 Article XIV was meant to include control of private educational institutions. It is enough to point
out that local educators and writers think the Constitution provides for control of Education by
the State. (See Tolentino, Government of the Philippine Constitution, Vol. II, p. 615; Benitez,
Philippine Social Life and Progress, p. 335.)

The Constitution (it) "provides for state control of all educational institutions" even as it
enumerates certain fundamental objectives of all education to wit, the development of moral
character, personal discipline, civic conscience and vocational efficiency, and instruction in the
duties of citizenship. (Malcolm & Laurel, Philippine Constitutional Law, 1936.)

The Solicitor General cities many authorities to show that the power to regulate means power to
control, and quotes from the proceedings of the Constitutional Convention to prove that State
control of private education was intended by the organic law. It is significant to note that the
Constitution grants power to supervise and to regulate. Which may mean greater power than
mere regulation.

III. Another grievance of petitioners—probably the most significant—is the assessment of 1 per
cent levied on gross receipts of all private schools for additional Government expenses in
connection with their supervision and regulation. The statute is section 11-A of Act No. 2706 as
amended by Republic Act No. 74 which reads as follows:

SEC. 11-A. The total annual expense of the Office of Private Education shall be met by
the regular amount appropriated in the annual Appropriation Act: Provided,
however, That for additional expenses in the supervision and regulation of private
schools, colleges and universities and in the purchase of textbook to be sold to student
of said schools, colleges and universities and President of the Philippines may authorize
the Secretary of Instruction to levy an equitable assessment from each private
educational institution equivalent to one percent of the total amount accruing from tuition
and other fees: . . . and non-payment of the assessment herein provided by any private
school, college or university shall be sufficient cause for the cancellation by the
Secretary of Instruction of the permit for recognition granted to it.

Petitioners maintain that this is a tax on the exercise of a constitutional right—the right to open a
school, the liberty to teach etc. They claim this is unconstitutional, in the same way that taxes on
the privilege of selling religious literature or of publishing a newspaper—both constitutional
privileges—have been held, in the United States, to be invalid as taxes on the exercise of a
constitutional right.

The Solicitor General on the other hand argues that insofar as petitioners' action attempts to
restrain the further collection of the assessment, courts have no jurisdiction to restrain the
collection of taxes by injunction, and in so far as they seek to recover fees already paid the suit,
it is one against the State without its consent. Anyway he concludes, the action involving "the
legality of any tax impost or assessment" falls within the original jurisdiction of Courts of First
Instance.

There are good grounds in support of Government's position. If this levy of 1 per cent is truly a
mere fee—and not a tax—to finance the cost of the Department's duty and power to regulate
and supervise private schools, the exaction may be upheld; but such point involves investigation
and examination of relevant data, which should best be carried out in the lower courts. If on the
other hand it is a tax, petitioners' issue would still be within the original jurisdiction of the Courts
of First Instance.

The last grievance of petitioners relates to the validity of Republic Act No. 139 which in its
section 1 provides:

The textbooks to be used in the private schools recognized or authorized by the

government shall be submitted to the Board (Board of Textbooks) which shall have the
power to prohibit the use of any of said textbooks which it may find to be against the law
or to offend the dignity and honor of the government and people of the Philippines, or
which it may find to be against the general policies of the government, or which it may
deem pedagogically unsuitable.

This power of the Board, petitioners aver, is censorship in "its baldest form". They cite two U. S.
cases (Miss. and Minnesota) outlawing statutes that impose previous restraints upon publication
of newspapers, or curtail the right of individuals to disseminate teachings critical of government
institutions or policies.

Herein lies another important issue submitted in the cause. The question is really whether the
law may be enacted in the exercise of the State's constitutional power (Art. XIV, sec. 5) to
supervise and regulate private schools. If that power amounts to control of private schools, as
some think it is, maybe the law is valid. In this connection we do not share the belief that section
5 has added new power to what the State inherently possesses by virtue of the police power. An
express power is necessarily more extensive than a mere implied power. For instance, if there
is conflict between an express individual right and the express power to control private
education it cannot off-hand be said that the latter must yield to the former—conflict of two
express powers. But if the power to control education ismerely implied from the police power, it
is feasible to uphold the express individual right, as was probably the situation in the two
decisions brought to our attention, of Mississippi and Minnesota, states where constitutional
control of private schools is not expressly produced.

However, as herein previously noted, no justiciable controversy has been presented to us. We
are not informed that the Board on Textbooks has prohibited this or that text, or that the
petitioners refused or intend to refuse to submit some textbooks, and are in danger of losing
substantial privileges or rights for so refusing.

The average lawyer who reads the above quoted section of Republic Act 139 will fail to perceive
anything objectionable. Why should not the State prohibit the use of textbooks that are illegal, or
offensive to the Filipinos or adverse to governmental policies or educationally improper? What's
the power of regulation and supervision for? But those trained to the investigation of
constitutional issues are likely to apprehend the danger to civil liberties, of possible educational
dictatorship or thought control, as petitioners' counsel foresee with obvious alarm. Much
depends, however, upon the execution and implementation of the statute. Not that
constitutionality depends necessarily upon the law's effects. But if the Board on Textbooks in its
actuations strictly adheres to the letter of the section and wisely steers a middle course between
the Scylla of "dictatorship" and the Charybdis of "thought control", no cause for complaint will
arise and no occasion for judicial review will develop. Anyway, and again, petitioners now have
a more expeditious remedy thru an administrative appeal to the National Board of Education
created by Republic Act 1124.

Of course it is necessary to assure herein petitioners, that when and if, the dangers they
apprehend materialize and judicial intervention is suitably invoked, after all administrative
remedies are exhausted, the courts will not shrink from their duty to delimit constitutional
boundaries and protect individual liberties.

IV. For all the foregoing considerations, reserving to the petitioners the right to institute in the
proper court, and at the proper time, such actions as may call for decision of the issue herein
presented by them, this petition for prohibition will be denied. So ordered.

Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo, JJ., concur.

FACTS:

Act. No. 2706 makes the inspection and recognition of private schools and colleges obligatory
for the Secretary of Public Instruction. In particular:
• Before a school can be opened, the owner must secure a permit from the Secretary of
Education.
• There is a 1% levy on receipts of all private schools.
• The Secretary of Education has the power to regulate textbooks to be used by private schools.

The petition assails the constitutionality of Act. No. 2706 (amended as Act. No. 3075) and
Commonwealth Act. No. 180 on the following grounds:
• They deprive owners of schools and colleges as well as the parents and teachers of liberty
and property without due process of law
• They deprive parents of their natural right and duty to rear their children for civic efficiency
• Their provisions conferring on the Secretary of Education unlimited power and discretion to
prescribe rules and standards constitute an unlawful delegation of legislative power

Respondents, on the other hand, contend that:

• The matter constitutes no justiciable controversy exhibiting unavoidable necessity of deciding
the constitutional questions
• Petitioners are in estoppel to challenge the validity of the said acts
• The Acts are constitutionally valid

ISSUES:
1. Whether the issue is justiciable – NO.
2. Whether the securing of permit from the Secretary of Education before opening a school is
constitutional – YES.
3. Whether the acts constitute unlawful delegation of power – NO.
4. Whether the 1% levy on receipts of all private schools is constitutional – MUST BE DECIDED
BY LOWER COURTS.
5. Whether the power to regulate the textbooks to be used by private schools constitute
censorship – NO JUSTICIABLE ISSUE.

RATIO:
1. The issue only becomes justiciable when the petitioners will suffer, or has suffered, an injury
as a result of the statute. On that note, the petitioners already have permits and are actually
operating by virtue of those permits. They did not show that the respondent threatened to
revoke their permits. As such, they do not need relief in the form they are seeking to obtain.

The Court stated that if the dangers which petitioners apprehended materialize and judicial
intervention is suitably invoked, after all administrative remedies are exhausted, the courts
would not shrink from their duty to delimit constitutional boundaries and protect individual
liberties.

2. The power of the state to regulate educational institutions is provided for in the Constitution.
Further, by virtue of a study and survey which reported that a great majority of the private
educational institutions are money-making devices necessitates the exercise of the
Government’s police power.

3. The standards are left on the hands of the Secretary because he has the relevant expertise
and experience to do so. Further, the standards have been in effect for 37 years without
complaint.

4. This issue involves investigation and examination of relevant data and this would still be
within the jurisdiction of the Courts of First Instance.

5. The issue is not a justiciable controversy. Further, the petitioners have not shown that the any
text has been prohibited, or that petitioners refused or intend to refuse to submit some
textbooks, and are in danger of losing substantial privileges or rights for refusing so.

10. G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner,

vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary
of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as
Secretary of Commerce and Industry, and SALVADOR MARINO, Secretary of
Justice, respondents.

Ramon A. Gonzales in his own behalf as petitioner.

Office of the Solicitor General and Estanislao Fernandez for respondents.

CONCEPCION, J.:

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a
rice procurement committee composed of the other respondents herein1 for the implementation
of said proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A.
Gonzales — a rice planter, and president of the Iloilo Palay and Corn Planters Association,
whose members are, likewise, engaged in the production of rice and corn — filed the petition
herein, averring that, in making or attempting to make said importation of foreign rice, the
aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction",
because Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 —
explicitly prohibits the importation of rice and corn "the Rice and Corn Administration or any
other government agency;" that petitioner has no other plain, speedy and adequate remedy in
the ordinary course of law; and that a preliminary injunction is necessary for the preservation of
the rights of the parties during the pendency this case and to prevent the judgment therein from
coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a
writ of preliminary injunction be forthwith issued restraining respondent their agents or
representatives from implementing the decision of the Executive Secretary to import the
aforementioned foreign rice; and that, after due hearing, judgment be rendered making said
injunction permanent.

Forthwith, respondents were required to file their answer to the petition which they did, and
petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties
appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the
respondents. Considering, later on, that the resolution said incident may require some
pronouncements that would be more appropriate in a decision on the merits of the case, the
same was set for hearing on the merits thereafter. The parties, however, waived the right to
argue orally, although counsel for respondents filed their memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him sufficient
interest to file the petition herein and secure the relief therein prayed for. We find no merit in this
pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn
Administration or any other government agency". Republic Act No. 3452 declares, in Section 1
thereof, that "the policy of the Government" is to "engage in the purchase of these basic
foods directly from those tenants, farmers, growers, producers and landowners in the
Philippines who wish to dispose of their products at a price that will afford them a fair and just
return for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a
planter with a rice land of substantial proportion,2 is entitled to a chance to sell to the
Government the rice it now seeks to buy abroad. Moreover, since the purchase of said
commodity will have to be effected with public funds mainly raised by taxation, and as a rice
producer and landowner petitioner must necessarily be a taxpayer, it follows that he has
sufficient personality and interest to seek judicial assistance with a view to restraining what he
believes to be an attempt to unlawfully disburse said funds.

II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all
administrative remedies available to him before coming to court". We have already held,
however, that the principle requiring the previous exhaustion of administrative remedies is not
applicable where the question in dispute is purely a legal one",3 or where the controverted act is
"patently illegal" or was performed without jurisdiction or in excess of jurisdiction, 4 or where the
respondent is a department secretary, whose acts as an alter-ego of the President bear the
implied or assumed approval of the latter,5 unless actually disapproved by him,6 or where there
are circumstances indicating the urgency of judicial intervention.7 The case at bar fails under
each one of the foregoing exceptions to the general rule. Respondents' contention is, therefore,
untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the
proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but
was authorized by the President as Commander-in-Chief "for military stock pile purposes" in the
exercise of his alleged authority under Section 2 of Commonwealth Act No. 1; 8 that in cases of
necessity, the President "or his subordinates may take such preventive measure for the
restoration of good order and maintenance of peace"; and that, as Commander-in-Chief of our
armed forces, "the President ... is duty-bound to prepare for the challenge of threats of war or
emergency without waiting for any special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by
petitioner herein - on which our view need not be expressed — we are unanimously of the
opinion - assuming that said Republic Act No. 2207 is still in force — that the two Acts are
applicable to the proposed importation in question because the language of said laws is such as
to include within the purview thereof all importations of rice and corn into the Philippines".
Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association, corporation
or government agency to import rice and corn into any point in the Philippines", although, by
way of exception, it adds, that "the President of the Philippines may authorize the importation of
these commodities through any government agency that he may designate", is the conditions
prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly
enjoins "the Rice and Corn Administration or any government agency" from importing rice and
corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452,
prohibiting the importation of rice and corn by any "government agency", do not apply to
importations "made by the Government itself", because the latter is not a "government agency".
This theory is devoid of merit. The Department of National Defense and the Armed Forces of
the Philippines, as well as respondents herein, and each and every officer and employee of our
Government, our government agencies and/or agents. The applicability of said laws even to
importations by the Government as such, becomes more apparent when we consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of
the Philippines" and, hence, by or on behalf of the Government of the Philippines;

2. Immediately after enjoining the Rice and Corn administration and any other government
agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the
importation of rice and corn is left to private parties upon payment of the corresponding taxes",
thus indicating that only "private parties" may import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than
five (5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and
regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is
a public official and/or employees", he shall be subject to the additional penalty specified
therein. A public official is an officer of the Government itself, as distinguished from officers or
employees of instrumentalities of the Government. Hence, the duly authorized acts of the former
are those of the Government, unlike those of a government instrumentality which may have a
personality of its own, distinct and separate from that of the Government, as such. The
provisions of Republic Act No. 2207 are, in this respect, even more explicit. Section 3 thereof
provides a similar additional penalty for any "officer or employee of the Government" who
"violates, abets or tolerates the violation of any provision" of said Act. Hence, the intent to apply
the same to transactions made by the very government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed
in Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the
preference in the purchase of articles for the Government." Pursuant to Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines and other
officers and employees of the municipal and provincial governments and the
Government of the Philippines and of chartered cities, boards, commissions, bureaus,
departments, offices, agencies, branches, and bodies of any description, including
government-owned companies, authorized to requisition, purchase, or contract or make
disbursements for articles, materials, and supplies for public use, public buildings, or
public works shall give preference to materials ... produced ... in the Philippines or in the
United States, and to domestic entities, subject to the conditions hereinbelow specified.
(Emphasis supplied.)

Under this provision, in all purchases by the Government, including those made by and/or for
the armed forces, preference shall be given to materials produced in the Philippines. The
importation involved in the case at bar violates this general policy of our Government, aside
from the provisions of Republic Acts Nos. 2207 and 3452.
The attempt to justify the proposed importation by invoking reasons of national security —
predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created
by the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of
all armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth
Act No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner
that would foster and accelerate self-sufficiency in the local production of said commodities
constitutes a factor that is vital to our ability to meet possible national emergency. Even if the
intent in importing goods in anticipation of such emergency were to bolster up that ability, the
latter would, instead, be impaired if the importation were so made as to discourage our farmers
from engaging in the production of rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or national
emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly
authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in
such quantities as it may deem proper and necessary to meet any contingencies". Moreover, it
ordains that "the buffer stocks held as a national reserve ... be deposited by the administration
throughout the country under the proper dispersal plans ... and may be released only upon the
occurrence of calamities or emergencies ...". (Emphasis applied.)

Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so
much, are not self-executory. They merely outline the general objectives of said legislation. The
means for the attainment of those objectives are subject to congressional legislation. Thus, the
conditions under which the services of citizens, as indicated in said Section 2, may be availed
of, are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly,
Section 5 thereof specifies the manner in which resources necessary for our national defense
may be secured by the Government of the Philippines, but only "during a national
mobilization",9 which does not exist. Inferentially, therefore, in the absence of a national
mobilization, said resources shall be produced in such manner as Congress may by other laws
provide from time to time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and
3452, and Commonwealth Act No. 138 are such laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of the work
cited10 shows that Corwin referred to the powers of the President during "war time" 11 or when he
has placed the country or a part thereof under "martial law".12 Since neither condition obtains in
the case at bar, said work merely proves that respondents' theory, if accepted, would, in effect,
place the Philippines under martial law, without a declaration of the Executive to that effect.
What is worse, it would keep us perpetually under martial law.

It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207
and 3452, it should, nevertheless, be permitted because "it redounds to the benefit of the
people". Salus populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the
respondents, as officials of this Government, have expressly affirmed again and again that there
is no rice shortage. And the importation is avowedly for stockpile of the Army — not the civilian
population.

But let us follow the respondents' trend of thought. It has a more serious implication that
appears on the surface. It implies that if an executive officer believes that compliance with a
certain statute will not benefit the people, he is at liberty to disregard it. That idea must be
rejected - we still live under a rule of law.

And then, "the people" are either producers or consumers. Now — as respondents explicitly
admit — Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of
producers and consumers, i.e., the people, it must follow that the welfare of the people lies
precisely in the compliance with said Acts.
It is not for respondent executive officers now to set their own opinions against that of the
Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit
importation — but under certain conditions, which have not been, and should be complied with.

IV. The contracts with Vietnam and Burma —

It is lastly contended that the Government of the Philippines has already entered into two (2)
contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the
Government of Burma; that these contracts constitute valid executive agreements under
international law; that such agreements became binding effective upon the signing thereof by
representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207
and 3452 on the one hand, and aforementioned contracts, on the other, the latter should
prevail, because, if a treaty and a statute are inconsistent with each other, the conflict must be
resolved — under the American jurisprudence — in favor of the one which is latest in point of
time; that petitioner herein assails the validity of acts of the Executive relative to foreign relations
in the conduct of which the Supreme Court cannot interfere; and the aforementioned contracts
have already been consummated, the Government of the Philippines having already paid the
price of the rice involved therein through irrevocable letters of credit in favor of the sell of the
said commodity. We find no merit in this pretense.

The Court is not satisfied that the status of said tracts as alleged executive agreements has
been sufficiently established. The parties to said contracts do not pear to have regarded the
same as executive agreements. But, even assuming that said contracts may properly
considered as executive agreements, the same are unlawful, as well as null and void, from a
constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts
Nos. 2207 and 3452. Although the President may, under the American constitutional system
enter into executive agreements without previous legislative authority, he may not, by executive
agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under
the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The
former may not interfere in the performance of the legislative powers of the latter, except in the
exercise of his veto power. He may not defeat legislative enactments that have acquired the
status of law, by indirectly repealing the same through an executive agreement providing for the
performance of the very act prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and a statute,
the one which is latest in point of time shall prevail, is not applicable to the case at bar, for
respondents not only admit, but, also insist that the contracts adverted to are not treaties. Said
theory may be justified upon the ground that treaties to which the United States is signatory
require the advice and consent of its Senate, and, hence, of a branch of the legislative
department. No such justification can be given as regards executive agreements not authorized
by previous legislation, without completely upsetting the principle of separation of powers and
the system of checks and balances which are fundamental in our constitutional set up and that
of the United States.

As regards the question whether an international agreement may be invalidated by our courts,
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by
providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as
the law or the rules of court may provide, final judgments and decrees of inferior courts in — (1)
All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order
or regulation is in question". In other words, our Constitution authorizes the nullification of a
treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an
act of Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma
does not render this case academic, Republic Act No. 2207 enjoins our Government not
from entering into contracts for the purchase of rice, but from importing rice, except under the
conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main
features, namely: (a) it requires the Government to purchase rice and corn directly from our
local planters, growers or landowners; and (b) it prohibits importations of rice by the
Government, and leaves such importations to private parties. The pivotal issue in this case is
whether the proposed importation — which has not been consummated as yet — is legally
feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it may have contracted with the
sellers of the rice in question, because, aside from the fact that said obligations may be
complied with without importing the commodity into the Philippines, the proposed importation
may still be legalized by complying with the provisions of the aforementioned laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not respondents
herein should be enjoined from implementing the aforementioned proposed importation.
However, the majority favors the negative view, for which reason the injunction prayed for
cannot be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had
and has no power to authorize the importation in question; that he exceeded his jurisdiction in
granting said authority; said importation is not sanctioned by law and is contrary to its
provisions; and that, for lack of the requisite majority, the injunction prayed for must be and is,
accordingly denied. It is so ordered.

Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.

Gonzales vs Hechanova

conflict with the fundamental law; separation of power

GONZALES VS HECHANOVA
G.R. No. L-21897 9 SCRA 230 October 22, 1963
RAMON A. GONZALES, petitioner,
vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary of
Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary of
Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents.

Facts:
Exec. Secretary Hechanova authorised the importation of foreign rice to be purchased from
private sources. Ramon Gonzales filed a petition opposing the said implementation because RA
No. 3542 which allegedly repeals or amends Republic Act No. 2207, prohibits the importation of
rice and corn “by the Rice and Corn Administration or any other government agency.”

Respondents alleged that the importation permitted in Republic Act 2207 is to be authorized by
the President of the Philippines, and by or on behalf of the Government of the Philippines. They
add that after enjoining the Rice and Corn administration and any other government agency
from importing rice and corn, Section 10 of Republic Act 3542 indicates that only private parties
may import rice under its provisions. They contended that the government has already
constitute valid executive agreements with Vietnam and Burma, that in case of conflict between
Republic Act Nos. 2207 and 3542, the latter should prevail and the conflict be resolved under
the American jurisprudence.

Issue/s:
Whether or not an international agreement may be invalidated by our courts.

Discussions:
From a constitutional viewpoint, the said international agreement being inconsistent with the
provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the
American constitutional system enter into executive agreements without previous legislative
authority, he may not, by executive agreement, enter into a transaction which is prohibited by
statutes enacted prior thereto.

Under the Constitution, the main function of the Executive is to enforce laws enacted by
Congress. He may not interfere in the performance of the legislative powers of the latter, except
in the exercise of his veto power. He may not defeat legislative enactments that have acquired
the status of law, by indirectly repealing the same through an executive agreement providing for
the performance of the very act prohibited by said laws.

Ruling/s:
Yes. The Constitution authorizes the nullification of a treaty, not only when it conflicts with the
fundamental law, but also, when it runs counter to an act of Congress.

Section 2 Article 8 states that judicial review is vested with the Supreme Court. The alleged
consummation of the aforementioned contracts with Vietnam and Burma does not render this
case academic. Republic Act No. 2207 enjoins our government not from entering into contracts
for the purchase of rice, but from entering rice, except under the conditions prescribed in said
Act.
A judicial declaration of illegality of the proposed importation would not compel our Government
to default in the performance of such obligations as it may have contracted with the sellers of
rice in question because aside from the fact that said obligations may be complied without
importing the said commodity into the Philippines, the proposed importation may still be
legalized by complying with the provisions of the aforementioned laws.

11. G.R. No. L-31685 July 31, 1975

RAMON A. GONZALES, petitioner,
vs.
IMELDA R. MARCOS, as Chairman of the Cultural Center of the Philippines, Father
HORACIO DE LA COSTA, I. P. SOLIONGCO, ERNESTO RUFINO, ANTONIO MADRIGAL,
and ANDRES SORIANO, as Members thereof, respondents.

Ramon A. Gonzales in his own behalf.

Acting Solicitor General Hugo E. Gutierrez; Jr. and Assistant Solicitor General Reynato S. Puno
for respondent Imelda R. Marcos.

Siguion Reyna, Montecillo, Beto and Ongsiako for respondents.

FERNANDO, J.:

It was the novelty of the constitutional question raised, there being an imputation by petitioner
Ramon A. Gonzales of an impermissible encroachment by the President of the Philippines on
the legislative prerogative, that led this Tribunal to give due course to an appeal
by certiorari from an order of dismissal by the Court of First Instance of Manila. 1 More
specifically, the issue centered on the validity of the creation in Executive Order No. 30 of a trust
for the benefit of the Filipino people under the name and style of the Cultural Center of the
Philippines entrusted with the task to construct a national theatre, a national music hall, an arts
building and facilities, to awaken our people's consciousness in the nation's cultural heritage
and to encourage its assistance in the preservation, promotion, enhancement and development
thereof, with the Board of Trustees to be appointed by the President, the Center having as its
estate the real and personal property vested in it as well as donations received, financial
commitments that could thereafter be collected, and gifts that may be forthcoming in the
future. 2 It was likewise alleged that the Board of Trustees did accept donations from the private
sector and did secure from the Chemical Bank of New York a loan of $5 million guaranteed by
the National Investment & Development Corporation as well as $3.5 million received from
President Johnson of the United States in the concept of war damage funds, all intended for the
construction of the Cultural Center building estimated to cost P48 million. The Board of Trustees
has as its Chairman the First Lady, Imelda Romualdez Marcos, who is named as the principal
respondent.3 In an order of dismissal by the then Judge, now Justice of the Court of Appeals,
Jose G. Bautista of a suit for prohibition filed in the Court of First Instance of Manila, stress was
laid on the funds administered by the Center as coming from donations and contributions, with
not a single centavo raised by taxation, and the absence of any pecuniary or monetary interest
of petitioner that could in any wise be prejudiced distinct from those of the general public.
Moreover, reference was made to the admission by petitioner of the desirability of the objective
of Executive Order No. 30, his objection arising from the alleged illegality of its issuance. 4

There was a motion of respondents to file a motion to dismiss this appeal by certiorari, and it
was granted in a resolution of March 5, 1970. Such a pleading was submitted to this Court
twelve days later, where it was contended that Executive Order No. 30 represented the
legitimate exercise of executive power, there being no invasion of the legislative domain and
that it was supplementary to rather than a disregard of Republic Act No. 4165 creating the
National Commission on Culture. In this exhaustive motion to dismiss, the point was likewise
raised that petitioner did not have the requisite personality to contest as a taxpayer the validity
of the executive order in question, as the funds held by the Cultural Center came from donations
and contributions, not one centavo being raised by taxation.5Thereafter, a manifestation was
filed by the then Solicitor General, now Associate Justice, Felix Q. Antonio, adopting "the Motion
to Dismiss the Petition dated February 25, 1970, filed by respondents with this Honorable
Court."6 There was an opposition to such motion to dismiss on the part of petitioner. 7 That was
the status of the case, there being no further pleadings filed except two motions for extension of
time to file answer submitted by the Solicitor General and granted by this Court, when on July
22, 1975, there was a second motion to dismiss on the part of respondents through the Acting
Solicitor General Hugo E. Gutierrez Jr. and Assistant Solicitor General Reynato S. Puno. It is
therein set forth: "(1) As stated in the petition itself its undeniable quintessence is [the allegation
of] "an executive usurpation of legislative powers, hence, respondents in enforcing the same,
are acting without jurisdiction, hence, are restrainable by prohibition." ... (2) On October 5, 1972,
Presidential Decree No. 15 ... was promulgated creating the Cultural Center of the Philippines,
defining its objectives, powers and functions and other purposes. Section 4, thereof was
amended by Presidential Decree No. 179 ... enacted on April 26, 1973. It is submitted that it is
now moot and academic to discuss the constitutionality of Executive Order No. 30 considering
the promulgation of PD Nos. 15 and 179, done by the President in the exercise of legislative
powers under martial law. Executive Order No. 30 has ceased to exist while PD Nos. 15 and
179 meet all the constitutional arguments raised in the petition at bar."8

It would thus appear that the petition cannot succeed. There is no justification for setting aside
the order of dismissal. Notwithstanding the exhaustive and scholarly pleadings submitted by
petitioner on his own behalf, the burden of persuasion to warrant a reversal of the action of the
lower court was not met. Both on procedural and substantive grounds, a case for prohibition
was not made out, notwithstanding the valiant efforts of petitioner. With this latest manifestation,
that Executive Order No. 30 had been superseded by Presidential Decree Nos. 15 and 179, the
moot and academic character of this appeal by certiorari became rather obvious. To repeat, the
petition must fail.

1. It may not be amiss though to consider briefly both the procedural and substantive grounds
that led to the lower court's order of dismissal. It was therein pointed out as "one more valid
reason" why such an outcome was unavoidable that "the funds administered by the President of
the Philippines came from donations [and] contributions [not] by taxation." Accordingly, there
was that absence of the "requisite pecuniary or monetary interest." 9 The stand of the lower
court finds support in judicial precedents. 10 This is not to retreat from the liberal approach
followed in Pascual v. Secretary of Public Works, 11 foreshadowed by People v. Vera, 12 where
the doctrine of standing was first fully discussed. It is only to make clear that petitioner, judged
by orthodox legal learning, has not satisfied the elemental requisite for a taxpayer's suit.
Moreover, even on the assumption that public funds raised by taxation were involved, it does
not necessarily follow that such kind of an action to assail the validity of a legislative or
executive act has to be passed upon. This Court, as held in the recent case of Tan v.
Macapagal, 13 "is not devoid of discretion as to whether or not it should be entertained." 14 The
lower court thus did not err in so viewing the situation.

2. Nor was the lower court any more impressed by the contention that there was an
encroachment on the legislative prerogative discernible in the issuance of Executive Order No.
30. It first took note of the exchange of diplomatic notes between the Republic of the Philippines
and the United States as to the use of a special fund coming from the latter for a Philippine
cultural development project. Then, as set forth in the order of dismissal, it explained why no
constitutional objection could be validly interposed. Thus: "When the President, therefore, acted
by disposing of a matter of general concern (Section 63, Rev. Adm. Code) in accord with the
constitutional injunction to promote arts and letters (Section 4, Article XIV, Constitution of the
Philippines) and issued Executive Order No. 30, he simply carried out the purpose of the trust in
establishing the Cultural Center of the Philippines as the instrumentality through which this
agreement between the two governments would be realized. Needless to state, the President
alone cannot and need not personally handle the duties of a trustee for and in behalf of the
Filipino people in relation with this trust. He can do this by means of an executive order by
creating as he did, a group of persons, who would receive and administer the trust estate,
responsible to the President. As head of the State, as chief executive, as spokesman in
domestic and foreign affairs, in behalf of the estate as parens patriae, it cannot be successfully
questioned that the President has authority to implement for the benefit of the Filipino people by
creating the Cultural Center consisting of private citizens to administer the private contributions
and donations given not only by the United States government but also by private persons." 15
There is impressive juridical support for the stand taken by the lower court. Justice Malcolm
in Government of the Philippine Islands v. Springer 16 took pains to emphasize: "Just as surely
as the duty of caring for governmental property is neither judicial nor legislative in character is it
as surely executive." 17 It Would be an unduly narrow or restrictive view of such a principle if the
public funds that accrued by way of donation from the United States and financial contributions
for the Cultural Center project could not be legally considered as "governmental property." They
may be acquired under the concept of dominium, the state as a persona in law not being
deprived of such an attribute, thereafter to be administered by virtue of its prerogative
of imperium. 18 What is a more appropriate agency for assuring that they be not wasted or
frittered away than the Executive, the department precisely entrusted with management
functions? It would thus appear that for the President to refrain from taking positive steps and
await the action of the then Congress could be tantamount to dereliction of duty. He had to act;
time was of the essence. Delay was far from conducive to public interest. It was as simple as
that. Certainly then, it could be only under the most strained construction of executive power to
conclude that in taking the step he took, he transgressed on terrain constitutionally reserved for
Congress.

This is not to preclude legislative action in the premises. While to the Presidency under the 1935
Constitution was entrusted the responsibility for administering public property, the then
Congress could provide guidelines for such a task. Relevant in this connection is the excerpt
from an opinion of Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer: 19 "When the
President acts in absence of either a congressional grant or denial of authority, he can only rely
upon his own independent powers, but there is a zone of twilight in which he and Congress may
have concurrent authority, or in which its distribution is uncertain. Therefore, congressional
inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not
invite, measures on independent presidential responsibility. In this area, any actual test of power
is likely to depend on the imperative of events and contemporary imponderables rather than on
abstract theories of law." 20 To vary the phraseology, to recall Thomas Reed Powell, if Congress
would continue to keep its peace notwithstanding the action taken by the executive department,
it may be considered as silently vocal. In plainer language, it could be an instance of silence
meaning consent. The Executive Order assailed was issued on June 25, 1966. Congress until
the time of the filing of the petition on August 26, 1969 remained quiescent. Parenthetically, it
may be observed that petitioner waited until almost the day of inaugurating the Cultural Center
on September 11, 1969 before filing his petition in the lower court. However worthy of
commendation was his resolute determination to keep the Presidency within the bounds of its
competence, it cannot be denied that the remedy, if any, could be supplied by Congress
asserting itself in the premises. Instead, there was apparent conformity on its part to the way the
President saw fit to administer such governmental property.

3. The futility of this appeal by certiorari becomes even more apparent with the issuance of
Presidential Decree No. 15 on October 5, 1972. As contended by the Solicitor General, the
matter, as of that date, became moot and academic. Executive Order No. 30 was thus
superseded. The institution known as the Cultural Center is other than that assailed in this suit.
In that sense a coup de grace was administered to this proceeding. The labored attempt of
petitioner could thus be set at rest. This particular litigation is at an end. There is, too, relevance
in the observation that the aforesaid decree is part of the law of the land. So the Constitution
provides. 21

4. It only remains to be added that respondents as trustees lived up fully to the weighty
responsibility entrusted to them. The task imposed on them was performed with competence,
fidelity, and dedication. That was to be expected. From the inception of the Marcos
Administration, the First Lady has given unsparingly of herself in the encouragement and
support of literary, musical, and artistic endeavors and in the appreciation of our rich and
diverse cultural heritage. The rest of the then Board of Trustees, named as the other
respondents, were equally deserving of their being chosen for this worthy project. One of them,
the late I.P Soliongco, was in his lifetime one of the most gifted men of letters. Father Horacio
de la Costa is a historian and scholar of international repute. Respondents Ernesto Rufino,
Antonio Madrigal and Andres Soriano, all men of substance, have contributed in time and
money to civic efforts. It is not surprising then that the Cultural Center became a reality, the
massive and imposing structure constructed at a shorter period and at a lower cost than at first
thought possible. What is of even greater significance, with a portion thereof being accessible at
modest admission prices, musical and artistic performances of all kinds are within reach of the
lower-income groups. Only thus may meaning be imparted to the Constitutional provision that
arts and letters shall be under State patronage. 22 For equally important as the encouragement
and support for talented Filipinos with a creative spark is the diffusion of the opportunity for the
rest of their countrymen to savour the finer things in life. Who knows, if state efforts along these
lines are diligently pursued, that what was said by Justice Holmes about France could apply to
the Philippines. Thus: "We have not that respect for art that is one of the glories of France." 23 In
justice to petitioner Gonzales, it may be noted that he did not question the wisdom or soundness
of the goal of having a Cultural Center or the disbursement of the funds by respondents. It is the
absence of statutory authority that bothered him. The lower court did not see things in the same
light. It is easily understandable why, as the preceding discussion has made clear, it cannot be
said that such a conclusion suffered from legal infirmity. What is more, with the issuance of
Presidential Decree No. 15, the suit, to repeat, has assumed a moot and academic character.

WHEREFORE, this appeal by certiorari to review the lower court's order of dismissal dated
December 4, 1969 is dismissed.

No costs.

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

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION,petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU
UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for
respondent Cu Unjieng.
No appearance for respondent Judge.

LAUREL, J.:

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

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

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

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

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

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

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

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

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

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

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

The scheduled hearing before the trial court was accordingly suspended upon the issuance of a
temporary restraining order by this court on August 21, 1937.

To support their petition for the issuance of the extraordinary writs of certiorari and prohibition,
herein petitioners allege that the respondent judge has acted without jurisdiction or in excess of
his jurisdiction:

I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng
under probation for the following reason:

(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is
made to apply only to the provinces of the Philippines; it nowhere states that it is
to be made applicable to chartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the effect
that in the absence of a special provision, the term "province" may be construed
to include the City of Manila for the purpose of giving effect to laws of general
application, it is also true that Act No. 4221 is not a law of general application
because it is made to apply only to those provinces in which the respective
provincial boards shall have provided for the salary of a probation officer.

(3) Even if the City of Manila were considered to be a province, still, Act No. 4221
would not be applicable to it because it has provided for the salary of a probation
officer as required by section 11 thereof; it being immaterial that there is an
Insular Probation Officer willing to act for the City of Manila, said Probation
Officer provided for in section 10 of Act No. 4221 being different and distinct from
the Probation Officer provided for in section 11 of the same Act.

II. Because even if the respondent judge originally had jurisdiction to entertain the application for
probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in
excess thereof in continuing to entertain the motion for reconsideration and by failing to commit
Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying
Mariano Cu Unjieng's application for probation, for the reason that:

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221
to the granting or denying of applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for
probation on June 28, 1937, it became final and executory at the moment of its
rendition.

(3) No right on appeal exists in such cases.

 (4) The respondent judge lacks the power to grant a rehearing of said order or to
modify or change the same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the
crime for which he was convicted by final judgment of this court, which finding is not only
presumptuous but without foundation in fact and in law, and is furthermore in contempt of this
court and a violation of the respondent's oath of office as ad interim judge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which became
imperative when he issued his order of June 28, 1937, denying the application for probation, to
commit his co-respondent to jail.

Petitioners also avers that they have no other plain, speedy and adequate remedy in the
ordinary course of law.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai
Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing
for a system of probation for persons eighteen years of age or over who are convicted of crime,
is unconstitutional because it is violative of section 1, subsection (1), Article III, of the
Constitution of the Philippines guaranteeing equal protection of the laws because it confers
upon the provincial board of its province the absolute discretion to make said law operative or
otherwise in their respective provinces, because it constitutes an unlawful and improper
delegation to the provincial boards of the several provinces of the legislative power lodged by
the Jones Law (section 8) in the Philippine Legislature and by the Constitution (section 1, Art.
VI) in the National Assembly; and for the further reason that it gives the provincial boards, in
contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the
authority to enlarge the powers of the Court of First Instance of different provinces without
uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the City
of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the
first time with the issues raised by other petitioner regarding the constitutionality of Act No.
4221, and on the oral argument held on October 6, 1937, further elaborated on the theory that
probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive
power of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the City
Fiscal filed two memorandums in which he contended that Act No. 4221 not only encroaches
upon the pardoning power to the executive, but also constitute an unwarranted delegation of
legislative power and a denial of the equal protection of the laws. On October 9, 1937, two
memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the
People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws
and the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative
power, were presented. Another joint memorandum was filed by the same persons on the same
day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal
protection of the laws and constitutes an unlawful delegation of legislative power and, further,
that the whole Act is void: that the Commonwealth is not estopped from questioning the validity
of its laws; that the private prosecution may intervene in probation proceedings and may attack
the probation law as unconstitutional; and that this court may pass upon the constitutional
question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument and
memorandums, challenge each and every one of the foregoing proposition raised by the
petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the
issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by the
petitioners is the very same remedy prayed for by them before the trial court and
was still pending resolution before the trial court when the present petition was
filed with this court.

(3) That the petitioners having themselves raised the question as to the
execution of judgment before the trial court, said trial court has acquired
exclusive jurisdiction to resolve the same under the theory that its resolution
denying probation is unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the
Court of First Instance to decide the question as to whether or not the execution
will lie, this court nevertheless cannot exercise said jurisdiction while the Court of
First Instance has assumed jurisdiction over the same upon motion of herein
petitioners themselves.

(5) That upon the procedure followed by the herein petitioners in seeking to
deprive the trial court of its jurisdiction over the case and elevate the proceedings
to this court, should not be tolerated because it impairs the authority and dignity
of the trial court which court while sitting in the probation cases is "a court of
limited jurisdiction but of great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the
question submitted to and pending resolution by the trial court, the present action
would not lie because the resolution of the trial court denying probation is
appealable; for although the Probation Law does not specifically provide that an
applicant for probation may appeal from a resolution of the Court of First Instance
denying probation, still it is a general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable to the superior court.

(7) That the resolution of the trial court denying probation of herein respondent
Mariano Cu Unjieng being appealable, the same had not become final and
executory for the reason that the said respondent had filed an alternative motion
for reconsideration and new trial within the requisite period of fifteen days, which
motion the trial court was able to resolve in view of the restraining order
improvidently and erroneously issued by this court.lawphi1.net

(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable when
he presented his answer to the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.

(9) That under the supposition that the order of the trial court denying probation is
not appealable, it is incumbent upon the accused to file an action for the
issuance of the writ of certiorari with mandamus, it appearing that the trial court,
although it believed that the accused was entitled to probation, nevertheless
denied probation for fear of criticism because the accused is a rich man; and
that, before a petition for certiorari grounded on an irregular exercise of
jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a
motion for reconsideration specifying the error committed so that the trial court
could have an opportunity to correct or cure the same.

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

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

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

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

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

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

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

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

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal
from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary Legal
Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that the merit of
prohibition will not lie whether the inferior court has jurisdiction independent of the statute the
constitutionality of which is questioned, because in such cases the interior court having
jurisdiction may itself determine the constitutionality of the statute, and its decision may be
subject to review, and consequently the complainant in such cases ordinarily has adequate
remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal
derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the
writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala.,
42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799;
Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E.,
185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)

Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act
No. 4221 which prescribes in detailed manner the procedure for granting probation to accused
persons after their conviction has become final and before they have served their sentence. It is
true that at common law the authority of the courts to suspend temporarily the execution of the
sentence is recognized and, according to a number of state courts, including those of
Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts
(Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156
Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States
([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas.
1917B, 355), the Supreme Court of the United States expressed the opinion that under the
common law the power of the court was limited to temporary suspension, and brushed aside the
contention as to inherent judicial power saying, through Chief Justice White:

Indisputably under our constitutional system the right to try offenses against the criminal
laws and upon conviction to impose the punishment provided by law is judicial, and it is
equally to be conceded that, in exerting the powers vested in them on such subject,
courts inherently possess ample right to exercise reasonable, that is, judicial, discretion
to enable them to wisely exert their authority. But these concessions afford no ground for
the contention as to power here made, since it must rest upon the proposition that the
power to enforce begets inherently a discretion to permanently refuse to do so. And the
effect of the proposition urged upon the distribution of powers made by the Constitution
will become apparent when it is observed that indisputable also is it that the authority to
define and fix the punishment for crime is legislative and includes the right in advance to
bring within judicial discretion, for the purpose of executing the statute, elements of
consideration which would be otherwise beyond the scope of judicial authority, and that
the right to relieve from the punishment, fixed by law and ascertained according to the
methods by it provided belongs to the executive department.

Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge
of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the
conclusion that the power to suspend the execution of sentences pronounced in criminal cases
is not inherent in the judicial function. "All are agreed", he said, "that in the absence of statutory
authority, it does not lie within the power of the courts to grant such suspensions." (at p. 278.)
Both petitioner and respondents are correct, therefore, when they argue that a Court of First
Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such
proceedings is conferred exclusively by Act No. 4221 of the Philippine Legislature.

It is, of course, true that the constitutionality of a statute will not be considered on application for
prohibition where the question has not been properly brought to the attention of the court by
objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs.
Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the
constitutional issue has been squarely presented not only before this court by the petitioners but
also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera,
however, acting as judge of the court below, declined to pass upon the question on the ground
that the private prosecutor, not being a party whose rights are affected by the statute, may not
raise said question. The respondent judge cited Cooley on Constitutional Limitations (Vol. I, p.
339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass.,
59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any attack
made on the constitutionality of a statute by one who has no interest in defeating it because his
rights are not affected by its operation. The respondent judge further stated that it may not motu
proprio take up the constitutional question and, agreeing with Cooley that "the power to declare
a legislative enactment void is one which the judge, conscious of the fallibility of the human
judgment, will shrink from exercising in any case where he can conscientiously and with due
regard to duty and official oath decline the responsibility" (Constitutional Limitations, 8th ed.,
Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore,
the court a quo admits that the constitutional question was raised before it, it refused to consider
the question solely because it was not raised by a proper party. Respondents herein reiterates
this view. The argument is advanced that the private prosecution has no personality to appear in
the hearing of the application for probation of defendant Mariano Cu Unjieng in criminal case
No. 42648 of the Court of First Instance of Manila, and hence the issue of constitutionality was
not properly raised in the lower court. Although, as a general rule, only those who are parties to
a suit may question the constitutionality of a statute involved in a judicial decision, it has been
held that since the decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the attention of the court by persons
interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were
to concede that the issue was not properly raised in the court below by the proper party, it does
not follow that the issue may not be here raised in an original action of certiorari and
prohibitions. It is true that, as a general rule, the question of constitutionality must be raised at
the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at
the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p.
786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But
we must state that the general rule admits of exceptions. Courts, in the exercise of sounds
discretion, may determine the time when a question affecting the constitutionality of a statute
should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases,
although there is a very sharp conflict of authorities, it is said that the question may be raised for
the first time at any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p.
786.) Even in civil cases, it has been held that it is the duty of a court to pass on the
constitutional question, though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs.
Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage
Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo.,
572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an
appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke
[1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional
question raised for the first time before this court in these proceedings, we turn again and point
with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that the
Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the
proper party to raise the constitutional question here — a point we do not now have to decide —
we are of the opinion that the People of the Philippines, represented by the Solicitor-General
and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a statute must have a personal
and substantial interest in the case such that he has sustained, or will sustained, direct injury as
a result of its enforcement. It goes without saying that if Act No. 4221 really violates the
constitution, the People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of grater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil.,
259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72
Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins
([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its
Attorney General, instituted quo warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under which the respondents base their
right was unconstitutional because it impaired the obligation of contracts. The capacity of the
chief law officer of the state to question the constitutionality of the statute was though, as a
general rule, only those who are parties to a suit may question the constitutionality of a statute
involved in a judicial decision, it has been held that since the decree pronounced by a court
without jurisdiction in void, where the jurisdiction of the court depends on the validity of the
statute in question, the issue of constitutionality will be considered on its being brought to the
attention of the court by persons interested in the effect to begin the statute. (12 C.J., sec. 184,
p. 766.) And, even if we were to concede that the issue was not properly raised in the court
below by the proper party, it does not follow that the issue may not be here raised in an original
action of certiorari and prohibition. It is true that, as a general rule, the question of
constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings,
ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be
considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del
Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions.
Courts, in the exercise of sound discretion, may determine the time when a question affecting
the constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135,
144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that
the question may be raised for the first time at any state of the proceedings, either in the trial
court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a
court to pass on the constitutional question, though raised for first time on appeal, if it appears
that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs.
Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage
Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo.,
572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an
appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke
[1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional
question raised for the first time before this court in these proceedings, we turn again and point
with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the
Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the
proper party to raise the constitutional question here — a point we do not now have to decide —
we are of the opinion that the People of the Philippines, represented by the Solicitor-General
and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a statute must have a personal
and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement. It goes without saying that if Act No. 4221 really violates the
Constitution, the People of the Philippines, in whose name the present action is brought, has a
substantial interest in having it set aside. Of greater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the
validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil.,
259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72
Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs.
Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan,
through its Attorney General, instituted quo warranto proceedings to test the right of the
respondents to renew a mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired the obligation of
contracts. The capacity of the chief law officer of the state to question the constitutionality of the
statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.:

. . . The idea seems to be that the people are estopped from questioning the validity of a
law enacted by their representatives; that to an accusation by the people of Michigan of
usurpation their government, a statute enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute relied on in justification is
unconstitutional, it is statute only in form, and lacks the force of law, and is of no more
saving effect to justify action under it than if it had never been enacted. The constitution
is the supreme law, and to its behests the courts, the legislature, and the people must
bow . . . The legislature and the respondents are not the only parties in interest upon
such constitutional questions. As was remarked by Mr. Justice Story, in speaking of an
acquiescence by a party affected by an unconstitutional act of the legislature: "The
people have a deep and vested interest in maintaining all the constitutional limitations
upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was
brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state.
In disposing of the question whether or not the state may bring the action, the Supreme Court of
Kansas said:

. . . the state is a proper party — indeed, the proper party — to bring this action. The
state is always interested where the integrity of its Constitution or statutes is involved.

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

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

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

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

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

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

It remains to consider whether the determination of the constitutionality of Act No. 4221 is
necessary to the resolution of the instant case. For, ". . . while the court will meet the question
with firmness, where its decision is indispensable, it is the part of wisdom, and just respect for
the legislature, renders it proper, to waive it, if the case in which it arises, can be decided on
other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also
Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a
constitutional question is necessary whenever it is essential to the decision of the case (12 C.
J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp.,
454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse
vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line
Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is
founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central
Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81;
74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation
solely from Act No. 4221 now being assailed.

Apart from the foregoing considerations, that court will also take cognizance of the fact that the
Probation Act is a new addition to our statute books and its validity has never before been
passed upon by the courts; that may persons accused and convicted of crime in the City of
Manila have applied for probation; that some of them are already on probation; that more people
will likely take advantage of the Probation Act in the future; and that the respondent Mariano Cu
Unjieng has been at large for a period of about four years since his first conviction. All wait the
decision of this court on the constitutional question. Considering, therefore, the importance
which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public
policy demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs.
Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77,
78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616;
Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489;
Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad,
supra, an analogous situation confronted us. We said: "Inasmuch as the property and personal
rights of nearly twelve thousand merchants are affected by these proceedings, and inasmuch as
Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the public welfare
and for the advancement of public policy, we have determined to overrule the defense of want
of jurisdiction in order that we may decide the main issue. We have here an extraordinary
situation which calls for a relaxation of the general rule." Our ruling on this point was sustained
by the Supreme Court of the United States. A more binding authority in support of the view we
have taken can not be found.
We have reached the conclusion that the question of the constitutionality of Act No. 4221 has
been properly raised. Now for the main inquiry: Is the Act unconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the
Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and
section 10, of Article VIII of the Constitution, may declare an act of the national legislature
invalid because in conflict with the fundamental lay. It will not shirk from its sworn duty to
enforce the Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law
by setting aside a statute in conflict therewith. This is of the essence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable
doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature
approved by the executive, is presumed to be within constitutional limitations. The responsibility
of upholding the Constitution rests not on the courts alone but on the legislature as well. "The
question of the validity of every statute is first determined by the legislative department of the
government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser
[1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before
the courts sustained by the sanction of the executive. The members of the Legislature and the
Chief Executive have taken an oath to support the Constitution and it must be presumed that
they have been true to this oath and that in enacting and sanctioning a particular law they did
not intend to violate the Constitution. The courts cannot but cautiously exercise its power to
overturn the solemn declarations of two of the three grand departments of the governments. (6
R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect
the wisdom of the people as expressed through an elective Legislature and an elective Chief
Executive. It follows, therefore, that the courts will not set aside a law as violative of the
Constitution except in a clear case. This is a proposition too plain to require a citation of
authorities.

One of the counsel for respondents, in the course of his impassioned argument, called attention
to the fact that the President of the Philippines had already expressed his opinion against the
constitutionality of the Probation Act, adverting that as to the Executive the resolution of this
question was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity
and independence of this court. We take notice of the fact that the President in his message
dated September 1, 1937, recommended to the National Assembly the immediate repeal of the
Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the
Nationality Assembly repealing the probation Act, subject to certain conditions therein
mentioned; but that said bill was vetoed by the President on September 13, 1937, much against
his wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair and
very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill
referred to, the President exercised his constitutional prerogative. He may express the reasons
which he may deem proper for taking such a step, but his reasons are not binding upon us in
the determination of actual controversies submitted for our determination. Whether or not the
Executive should express or in any manner insinuate his opinion on a matter encompassed
within his broad constitutional power of veto but which happens to be at the same time pending
determination in this court is a question of propriety for him exclusively to decide or determine.
Whatever opinion is expressed by him under these circumstances, however, cannot sway our
judgment on way or another and prevent us from taking what in our opinion is the proper course
of action to take in a given case. It if is ever necessary for us to make any vehement affirmance
during this formative period of our political history, it is that we are independent of the Executive
no less than of the Legislative department of our government — independent in the
performance of our functions, undeterred by any consideration, free from politics, indifferent to
popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as
we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act
encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue
delegation of legislative power and (3) that it denies the equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in
force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in
the Governor-General of the Philippines "the exclusive power to grant pardons and reprieves
and remit fines and forfeitures". This power is now vested in the President of the Philippines.
(Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution differ in
some respects. The adjective "exclusive" found in the Jones Law has been omitted from the
Constitution. Under the Jones Law, as at common law, pardon could be granted any time after
the commission of the offense, either before or after conviction (Vide Constitution of the United
States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the
Philippines was thus empowered, like the President of the United States, to pardon a person
before the facts of the case were fully brought to light. The framers of our Constitution thought
this undesirable and, following most of the state constitutions, provided that the pardoning
power can only be exercised "after conviction". So, too, under the new Constitution, the
pardoning power does not extend to "cases of impeachment". This is also the rule generally
followed in the United States (Vide Constitution of the United States, Art. II, sec. 2). The rule in
England is different. There, a royal pardon can not be pleaded in bar of an impeachment; "but,"
says Blackstone, "after the impeachment has been solemnly heard and determined, it is not
understood that the king's royal grace is further restrained or abridged." (Vide, Ex parte Wells
[1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am.
Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the
distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal
from office and disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole
punishment attached by law to the offense committed. The House of Lords, on a conviction
may, by its sentence, inflict capital punishment, perpetual banishment, perpetual banishment,
fine or imprisonment, depending upon the gravity of the offense committed, together with
removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution
also makes specific mention of "commutation" and of the power of the executive to impose, in
the pardons he may grant, such conditions, restrictions and limitations as he may deem proper.
Amnesty may be granted by the President under the Constitution but only with the concurrence
of the National Assembly. We need not dwell at length on the significance of these fundamental
changes. It is sufficient for our purposes to state that the pardoning power has remained
essentially the same. The question is: Has the pardoning power of the Chief Executive under
the Jones Law been impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive.
The exercise of the power may not, therefore, be vested in anyone else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor
fettered by any legislative restrictions, nor can like power be given by the legislature to any other
officer or authority. The coordinate departments of government have nothing to do with the
pardoning power, since no person properly belonging to one of the departments can exercise
any powers appertaining to either of the others except in cases expressly provided for by the
constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred
on the executive without express or implied limitations, the grant is exclusive, and the legislature
can neither exercise such power itself nor delegate it elsewhere, nor interfere with or control the
proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then,
confers any pardoning power upon the courts it is for that reason unconstitutional and void. But
does it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the
United States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex
parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct.
Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the
authorities, expressed the opinion of the court that under the common law the power of the court
was limited to temporary suspension and that the right to suspend sentenced absolutely and
permanently was vested in the executive branch of the government and not in the judiciary. But,
the right of Congress to establish probation by statute was conceded. Said the court through its
Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the imposition of
penalties as fixed to be subject, by probation legislation or such other means as the legislative
mind may devise, to such judicial discretion as may be adequate to enable courts to meet by the
exercise of an enlarged but wise discretion the infinite variations which may be presented to
them for judgment, recourse must be had Congress whose legislative power on the subject is in
the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F.
[2d], 5, 6.) This decision led the National Probation Association and others to agitate for the
enactment by Congress of a federal probation law. Such action was finally taken on March 4,
1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an
appropriation to defray the salaries and expenses of a certain number of probation officers
chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.)

In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the
Supreme Court of the United States, through Chief Justice Taft, held that when a person
sentenced to imprisonment by a district court has begun to serve his sentence, that court has no
power under the Probation Act of March 4, 1925 to grant him probation even though the term at
which sentence was imposed had not yet expired. In this case of Murray, the constitutionality of
the probation Act was not considered but was assumed. The court traced the history of the Act
and quoted from the report of the Committee on the Judiciary of the United States House of
Representatives (Report No. 1377, 68th Congress, 2 Session) the following statement:

Prior to the so-called Killitts case, rendered in December, 1916, the district courts
exercised a form of probation either, by suspending sentence or by placing the
defendants under state probation officers or volunteers. In this case, however (Ex parte
United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72
Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts to
suspend sentenced. In the same opinion the court pointed out the necessity for action by
Congress if the courts were to exercise probation powers in the future . . .

Since this decision was rendered, two attempts have been made to enact probation
legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed
the House. In 1920, the judiciary Committee again favorably reported a probation bill to
the House, but it was never reached for definite action.

If this bill is enacted into law, it will bring the policy of the Federal government with
reference to its treatment of those convicted of violations of its criminal laws in harmony
with that of the states of the Union. At the present time every state has a probation law,
and in all but twelve states the law applies both to adult and juvenile offenders. (see,
also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.)

The constitutionality of the federal probation law has been sustained by inferior federal courts. In
Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said:

Since the passage of the Probation Act of March 4, 1925, the questions under
consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7
F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of the President. This case will be found
to contain an able and comprehensive review of the law applicable here. It arose under
the act we have to consider, and to it and the authorities cited therein special reference
is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court
of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing
the Probation Act.

We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal
language, pointed to Congress as possessing the requisite power to enact probation laws, that
a federal probation law as actually enacted in 1925, and that the constitutionality of the Act has
been assumed by the Supreme Court of the United States in 1928 and consistently sustained
by the inferior federal courts in a number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States,
may legally enact a probation law under its broad power to fix the punishment of any and all
penal offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20
N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of
the Legislature to denominate and define all classes of crime, and to prescribe for each a
minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A.
[N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set
punishment for crime is very broad, and in the exercise of this power the general assembly may
confer on trial judges, if it sees fit, the largest discretion as to the sentence to be imposed, as to
the beginning and end of the punishment and whether it should be certain or indeterminate or
conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the
Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably,
the legislature has demonstrated the desire to vest in the courts — particularly the trial courts —
large discretion in imposing the penalties which the law prescribes in particular cases. It is
believed that justice can best be served by vesting this power in the courts, they being in a
position to best determine the penalties which an individual convict, peculiarly circumstanced,
should suffer. Thus, while courts are not allowed to refrain from imposing a sentence merely
because, taking into consideration the degree of malice and the injury caused by the offense,
the penalty provided by law is clearly excessive, the courts being allowed in such case to submit
to the Chief Executive, through the Department of Justice, such statement as it may deem
proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law provides for a penalty
composed of two indivisible penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply the penalty according to
the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and
Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code
empowers the courts to determine, within the limits of each periods, in case the penalty
prescribed by law contains three periods, the extent of the evil produced by the crime. In the
imposition of fines, the courts are allowed to fix any amount within the limits established by law,
considering not only the mitigating and aggravating circumstances, but more particularly the
wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the
same Code provides that "a discretionary penalty shall be imposed" upon a person under fifteen
but over nine years of age, who has not acted without discernment, but always lower by two
degrees at least than that prescribed by law for the crime which he has committed. Article 69 of
the same Code provides that in case of "incomplete self-defense", i.e., when the crime
committed is not wholly excusable by reason of the lack of some of the conditions required to
justify the same or to exempt from criminal liability in the several cases mentioned in article 11
and 12 of the Code, "the courts shall impose the penalty in the period which may be deemed
proper, in view of the number and nature of the conditions of exemption present or lacking."
And, in case the commission of what are known as "impossible" crimes, "the court, having in
mind the social danger and the degree of criminality shown by the offender," shall impose upon
him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal
Code.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We conclude that the Probation Act does not conflict with the pardoning power of the Executive.
The pardoning power, in respect to those serving their probationary sentences, remains as full
and complete as if the Probation Law had never been enacted. The President may yet pardon
the probationer and thus place it beyond the power of the court to order his rearrest and
imprisonment. (Riggs vs. United States [1926],
14 F. [2d], 5, 7.)

2. But while the Probation Law does not encroach upon the pardoning power of the executive
and is not for that reason void, does section 11 thereof constitute, as contended, an undue
delegation of legislative power?

Under the constitutional system, the powers of government are distributed among three
coordinate and substantially independent organs: the legislative, the executive and the judicial.
Each of these departments of the government derives its authority from the Constitution which,
in turn, is the highest expression of popular will. Each has exclusive cognizance of the matters
within its jurisdiction, and is supreme within its own sphere.

The power to make laws — the legislative power — is vested in a bicameral Legislature by the
Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1,
Constitution of the Philippines). The Philippine Legislature or the National Assembly may not
escape its duties and responsibilities by delegating that power to any other body or authority.
Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas
delegata non delegare potest. This principle is said to have originated with the glossators, was
introduced into English law through a misreading of Bracton, there developed as a principle of
agency, was established by Lord Coke in the English public law in decisions forbidding the
delegation of judicial power, and found its way into America as an enlightened principle of free
government. It has since become an accepted corollary of the principle of separation of powers.
(5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of Locke,
namely: "The legislative neither must nor can transfer the power of making laws to anybody
else, or place it anywhere but where the people have." (Locke on Civil Government, sec. 142.)
Judge Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled
maxims in constitutional law is, that the power conferred upon the legislature to make laws
cannot be delegated by that department to any other body or authority. Where the sovereign
power of the state has located the authority, there it must remain; and by the constitutional
agency alone the laws must be made until the Constitution itself is charged. The power to
whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve
itself of the responsibilities by choosing other agencies upon which the power shall be devolved,
nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which
alone the people have seen fit to confide this sovereign trust." (Cooley on Constitutional
Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil.,
327.) This court posits the doctrine "on the ethical principle that such a delegated power
constitutes not only a right but a duty to be performed by the delegate by the instrumentality of
his own judgment acting immediately upon the matter of legislation and not through the
intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.)

The rule, however, which forbids the delegation of legislative power is not absolute and
inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice permits the
central legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial
Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh
vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes
[1855], 30 N. H., 279.) "It is a cardinal principle of our system of government, that local affairs
shall be managed by local authorities, and general affairs by the central authorities; and hence
while the rule is also fundamental that the power to make laws cannot be delegated, the
creation of the municipalities exercising local self government has never been held to trench
upon that rule. Such legislation is not regarded as a transfer of general legislative power, but
rather as the grant of the authority to prescribed local regulations, according to immemorial
practice, subject of course to the interposition of the superior in cases of necessity."
(Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to
delegate legislative power to such agencies in the territories of the United States as it may
select. A territory stands in the same relation to Congress as a municipality or city to the state
government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L.
ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep.,
808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of
legislative power to the people at large. Some authorities maintain that this may not be done (12
C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N.
E., 442; Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to
be republican in form because of its adoption of the initiative and referendum has been held not
to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U.
S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has
been looked upon with favor by certain progressive courts, the sting of the decisions of the more
conservative courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass.,
586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379;
1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.)
Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14,
paragraph 2, of article VI of the Constitution of the Philippines provides that "The National
Assembly may by law authorize the President, subject to such limitations and restrictions as it
may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage and
wharfage dues." And section 16 of the same article of the Constitution provides that "In times of
war or other national emergency, the National Assembly may by law authorize the President, for
a limited period and subject to such restrictions as it may prescribed, to promulgate rules and
regulations to carry out a declared national policy." It is beyond the scope of this decision to
determine whether or not, in the absence of the foregoing constitutional provisions, the
President could be authorized to exercise the powers thereby vested in him. Upon the other
hand, whatever doubt may have existed has been removed by the Constitution itself.

The case before us does not fall under any of the exceptions hereinabove mentioned.

The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective provincial boards
have provided for the salary of a probation officer at rates not lower than those now
provided for provincial fiscals. Said probation officer shall be appointed by the Secretary
of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.)

In testing whether a statute constitute an undue delegation of legislative power or not, it is usual
to inquire whether the statute was complete in all its terms and provisions when it left the hands
of the legislature so that nothing was left to the judgment of any other appointee or delegate of
the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1),
this court adhered to the foregoing rule when it held an act of the legislature void in so far as it
undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the
price of rice and to make the sale of it in violation of the proclamation a crime. (See and cf.
Compañia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.)
The general rule, however, is limited by another rule that to a certain extent matters of detail
may be left to be filled in by rules and regulations to be adopted or promulgated by executive
officers and administrative boards. (6 R. C. L., pp. 177-179.)

For the purpose of Probation Act, the provincial boards may be regarded as administrative
bodies endowed with power to determine when the Act should take effect in their respective
provinces. They are the agents or delegates of the legislature in this respect. The rules
governing delegation of legislative power to administrative and executive officers are applicable
or are at least indicative of the rule which should be here adopted. An examination of a variety
of cases on delegation of power to administrative bodies will show that the ratio decidendi is at
variance but, it can be broadly asserted that the rationale revolves around the presence or
absence of a standard or rule of action — or the sufficiency thereof — in the statute, to aid the
delegate in exercising the granted discretion. In some cases, it is held that the standard is
sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an
act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite
standard by which the administrative officer or board may be guided in the exercise of the
discretionary powers delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79
L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co.
[1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title
"Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards
in the exercise of their discretionary power to determine whether or not the Probation Act shall
apply in their respective provinces? What standards are fixed by the Act? We do not find any
and none has been pointed to us by the respondents. The probation Act does not, by the force
of any of its provisions, fix and impose upon the provincial boards any standard or guide in the
exercise of their discretionary power. What is granted, if we may use the language of Justice
Cardozo in the recent case of Schecter, supra, is a "roving commission" which enables the
provincial boards to exercise arbitrary discretion. By section 11 if the Act, the legislature does
not seemingly on its own authority extend the benefits of the Probation Act to the provinces but
in reality leaves the entire matter for the various provincial boards to determine. In other words,
the provincial boards of the various provinces are to determine for themselves, whether the
Probation Law shall apply to their provinces or not at all. The applicability and application of the
Probation Act are entirely placed in the hands of the provincial boards. If the provincial board
does not wish to have the Act applied in its province, all that it has to do is to decline to
appropriate the needed amount for the salary of a probation officer. The plain language of the
Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrender of
legislative power to the provincial boards.

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

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

It is connected, however, that a legislative act may be made to the effect as law after it leaves
the hands of the legislature. It is true that laws may be made effective on certain contingencies,
as by proclamation of the executive or the adoption by the people of a particular community (6
R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs.
Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled
that the legislature may delegate a power not legislative which it may itself rightfully
exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L.
R. A., 112.) The power to ascertain facts is such a power which may be delegated. There is
nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of
the taking into effect of a law. That is a mental process common to all branches of the
government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896],
93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W.,
210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding
the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority
on account of the complexity arising from social and economic forces at work in this modern
industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of Parliaments",
foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's
Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge
Cooley in his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise
on the Constitution of the United States in the following language — speaking of declaration of
legislative power to administrative agencies: "The principle which permits the legislature to
provide that the administrative agent may determine when the circumstances are such as
require the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and that, under other
circumstances, different of no action at all is to be taken. What is thus left to the administrative
official is not the legislative determination of what public policy demands, but simply the
ascertainment of what the facts of the case require to be done according to the terms of the law
by which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II,
p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law.
ed., 971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of
course, come from Congress, but the ascertainment of the contingency upon which the Act shall
take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State
vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then
may provide that a contingencies leaving to some other person or body the power to determine
when the specified contingencies has arisen. But, in the case at bar, the legislature has not
made the operation of the Prohibition Act contingent upon specified facts or conditions to be
ascertained by the provincial board. It leaves, as we have already said, the entire operation or
non-operation of the law upon the provincial board. the discretion vested is arbitrary because it
is absolute and unlimited. A provincial board need not investigate conditions or find any fact, or
await the happening of any specified contingency. It is bound by no rule, — limited by no
principle of expendiency announced by the legislature. It may take into consideration certain
facts or conditions; and, again, it may not. It may have any purpose or no purpose at all. It need
not give any reason whatsoever for refusing or failing to appropriate any funds for the salary of a
probation officer. This is a matter which rest entirely at its pleasure. The fact that at some future
time — we cannot say when — the provincial boards may appropriate funds for the salaries of
probation officers and thus put the law into operation in the various provinces will not save the
statute. The time of its taking into effect, we reiterate, would yet be based solely upon the will of
the provincial boards and not upon the happening of a certain specified contingency, or upon
the ascertainment of certain facts or conditions by a person or body other than legislature itself.

The various provincial boards are, in practical effect, endowed with the power of suspending the
operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions
provided that laws may be suspended only by the legislature or by its authority. Thus, section
28, article I of the Constitution of Texas provides that "No power of suspending laws in this state
shall be exercised except by the legislature"; and section 26, article I of the Constitution of
Indiana provides "That the operation of the laws shall never be suspended, except by authority
of the General Assembly." Yet, even provisions of this sort do not confer absolute power of
suspension upon the legislature. While it may be undoubted that the legislature may suspend a
law, or the execution or operation of a law, a law may not be suspended as to certain individuals
only, leaving the law to be enjoyed by others. The suspension must be general, and cannot be
made for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396;
6 Am. Dec., 174, 177, 178), it was said:

By the twentieth article of the declaration of rights in the constitution of this

commonwealth, it is declared that the power of suspending the laws, or the execution of
the laws, ought never to be exercised but by the legislature, or by authority derived from
it, to be exercised in such particular cases only as the legislature shall expressly provide
for. Many of the articles in that declaration of rights were adopted from the Magna
Charta of England, and from the bill of rights passed in the reign of William and Mary.
The bill of rights contains an enumeration of the oppressive acts of James II, tending to
subvert and extirpate the protestant religion, and the laws and liberties of the kingdom;
and the first of them is the assuming and exercising a power of dispensing with and
suspending the laws, and the execution of the laws without consent of parliament. The
first article in the claim or declaration of rights contained in the statute is, that the
exercise of such power, by legal authority without consent of parliament, is illegal. In the
tenth section of the same statute it is further declared and enacted, that "No
dispensation by non obstante of or to any statute, or part thereof, should be allowed; but
the same should be held void and of no effect, except a dispensation be allowed of in
such statute." There is an implied reservation of authority in the parliament to exercise
the power here mentioned; because, according to the theory of the English Constitution,
"that absolute despotic power, which must in all governments reside somewhere," is
intrusted to the parliament: 1 Bl. Com., 160.
 The principles of our government are widely different in this particular. Here the
sovereign and absolute power resides in the people; and the legislature can only
exercise what is delegated to them according to the constitution. It is obvious that the
exercise of the power in question would be equally oppressive to the subject, and
subversive of his right to protection, "according to standing laws," whether exercised by
one man or by a number of men. It cannot be supposed that the people when adopting
this general principle from the English bill of rights and inserting it in our constitution,
intended to bestow by implication on the general court one of the most odious and
oppressive prerogatives of the ancient kings of England. It is manifestly contrary to the
first principles of civil liberty and natural justice, and to the spirit of our constitution and
laws, that any one citizen should enjoy privileges and advantages which are denied to all
others under like circumstances; or that ant one should be subject to losses, damages,
suits, or actions from which all others under like circumstances are exempted.

To illustrate the principle: A section of a statute relative to dogs made the owner of any dog
liable to the owner of domestic animals wounded by it for the damages without proving a
knowledge of it vicious disposition. By a provision of the act, power was given to the board of
supervisors to determine whether or not during the current year their county should be governed
by the provisions of the act of which that section constituted a part. It was held that the
legislature could not confer that power. The court observed that it could no more confer such a
power than to authorize the board of supervisors of a county to abolish in such county the days
of grace on commercial paper, or to suspend the statute of limitations. (Slinger vs. Henneman
[1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in State
vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a
road system contained a provision that "if the county court of any county should be of opinion
that the provisions of the act should not be enforced, they might, in their discretion, suspend the
operation of the same for any specified length of time, and thereupon the act should become
inoperative in such county for the period specified in such order; and thereupon order the roads
to be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . .
this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is
left to the county court to say which act shall be enforce in their county. The act does not submit
the question to the county court as an original question, to be decided by that tribunal, whether
the act shall commence its operation within the county; but it became by its own terms a law in
every county not excepted by name in the act. It did not, then, require the county court to do any
act in order to give it effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous laws, the county court is . . .
empowered, to suspend this act and revive the repealed provisions of the former act. When the
question is before the county court for that tribunal to determine which law shall be in force, it is
urge before us that the power then to be exercised by the court is strictly legislative power,
which under our constitution, cannot be delegated to that tribunal or to any other body of men in
the state. In the present case, the question is not presented in the abstract; for the county court
of Saline county, after the act had been for several months in force in that county, did by order
suspend its operation; and during that suspension the offense was committed which is the
subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular locality different from those applicable to
other localities and, while recognizing the force of the principle hereinabove expressed, courts in
may jurisdiction have sustained the constitutionality of the submission of option laws to the vote
of the people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in
character which should receive different treatment in different localities placed under different
circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the
running at large of cattle in the highways, may be differently regarded in different localities, and
they are sustained on what seems to us the impregnable ground, that the subject, though not
embraced within the ordinary powers of municipalities to make by-laws and ordinances, is
nevertheless within the class of public regulations, in respect to which it is proper that the local
judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while
we do not deny the right of local self-government and the propriety of leaving matters of purely
local concern in the hands of local authorities or for the people of small communities to pass
upon, we believe that in matters of general of general legislation like that which treats of
criminals in general, and as regards the general subject of probation, discretion may not be
vested in a manner so unqualified and absolute as provided in Act No. 4221. True, the statute
does not expressly state that the provincial boards may suspend the operation of the Probation
Act in particular provinces but, considering that, in being vested with the authority to appropriate
or not the necessary funds for the salaries of probation officers, they thereby are given absolute
discretion to determine whether or not the law should take effect or operate in their respective
provinces, the provincial boards are in reality empowered by the legislature to suspend the
operation of the Probation Act in particular provinces, the Act to be held in abeyance until the
provincial boards should decide otherwise by appropriating the necessary funds. The validity of
a law is not tested by what has been done but by what may be done under its provisions.
(Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)

It in conceded that a great deal of latitude should be granted to the legislature not only in the
expression of what may be termed legislative policy but in the elaboration and execution
thereof. "Without this power, legislation would become oppressive and yet imbecile." (People vs.
Reynolds, 5 Gilman, 1.) It has been said that popular government lives because of the
inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that these representatives are no
further restrained under our system than by the express language of the instrument imposing
the restraint, or by particular provisions which by clear intendment, have that effect. (Angara vs.
Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz.,
1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of power
and one of these time-honored limitations is that, subject to certain exceptions, legislative power
shall not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for this reason, unconstitutional and void.

3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which
prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1.
Constitution of the Philippines.)

This basic individual right sheltered by the Constitution is a restraint on all the tree grand
departments of our government and on the subordinate instrumentalities and subdivision
thereof, and on many constitutional power, like the police power, taxation and eminent domain.
The equal protection of laws, sententiously observes the Supreme Court of the United States,
"is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30
Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct.
Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a denial of the equal
protection of the laws in a question not always easily determined. No rule that will cover every
case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup.
Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring
others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or
capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup.
Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup.
Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however,
to be reasonable must be based on substantial distinctions which make real differences; it must
be germane to the purposes of the law; it must not be limited to existing conditions only, and
must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327,
353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn.,
540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79,
55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R.
Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry.
Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas.,
1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to flow from the unwarranted
delegation of legislative power, although perhaps this is not necessarily the result in every case.
Adopting the example given by one of the counsel for the petitioners in the course of his oral
argument, one province may appropriate the necessary fund to defray the salary of a probation
officer, while another province may refuse or fail to do so. In such a case, the Probation Act
would be in operation in the former province but not in the latter. This means that a person
otherwise coming within the purview of the law would be liable to enjoy the benefits of probation
in one province while another person similarly situated in another province would be denied
those same benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the
provincial boards to appropriate the necessary funds for the salaries of the probation officers in
their respective provinces, in which case no inequality would result for the obvious reason that
probation would be in operation in each and every province by the affirmative action of
appropriation by all the provincial boards. On that hypothesis, every person coming within the
purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither will
there be any resulting inequality if no province, through its provincial board, should appropriate
any amount for the salary of the probation officer — which is the situation now — and, also, if
we accept the contention that, for the purpose of the Probation Act, the City of Manila should be
considered as a province and that the municipal board of said city has not made any
appropriation for the salary of the probation officer. These different situations suggested show,
indeed, that while inequality may result in the application of the law and in the conferment of the
benefits therein provided, inequality is not in all cases the necessary result. But whatever may
be the case, it is clear that in section 11 of the Probation Act creates a situation in which
discrimination and inequality are permitted or allowed. There are, to be sure, abundant
authorities requiring actual denial of the equal protection of the law before court should assume
the task of setting aside a law vulnerable on that score, but premises and circumstances
considered, we are of the opinion that section 11 of Act No. 4221 permits of the denial of the
equal protection of the law and is on that account bad. We see no difference between a law
which permits of such denial. A law may appear to be fair on its face and impartial in
appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional
prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550;
Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U.
S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon
Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U.
S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583;
42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law.
ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law.
ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their effect in
operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed.,
754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the
law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p.
372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs.
Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs.
Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of
the Probation Act, not only may said Act be in force in one or several provinces and not be in
force in other provinces, but one province may appropriate for the salary of the probation officer
of a given year — and have probation during that year — and thereafter decline to make further
appropriation, and have no probation is subsequent years. While this situation goes rather to the
abuse of discretion which delegation implies, it is here indicated to show that the Probation Act
sanctions a situation which is intolerable in a government of laws, and to prove how easy it is,
under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf
C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep.,
255.)lawph!1.net

Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United
States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United
States affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that
there was a denial of the equal protection of the laws because, as held in Missouri vs. Lewis
(Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the
equality clause does not require territorial uniformity. It should be observed, however, that this
case concerns the right to preliminary investigations in criminal cases originally granted by
General Orders No. 58. No question of legislative authority was involved and the alleged denial
of the equal protection of the laws was the result of the subsequent enactment of Act No. 612,
amending the charter of the City of Manila (Act No. 813) and providing in section 2 thereof that
"in cases triable only in the court of first instance of the City of Manila, the defendant . . . shall
not be entitled as of right to a preliminary examination in any case where the prosecuting
attorney, after a due investigation of the facts . . . shall have presented an information against
him in proper form . . . ." Upon the other hand, an analysis of the arguments and the decision
indicates that the investigation by the prosecuting attorney — although not in the form had in the
provinces — was considered a reasonable substitute for the City of Manila, considering the
peculiar conditions of the city as found and taken into account by the legislature itself.

Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a
situation where the constitution of Missouri permits appeals to the Supreme Court of the state
from final judgments of any circuit court, except those in certain counties for which counties the
constitution establishes a separate court of appeals called St. Louis Court of Appeals. The
provision complained of, then, is found in the constitution itself and it is the constitution that
makes the apportionment of territorial jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it
is also repugnant to equal-protection clause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for the reasons already stated,
the next inquiry is whether or not the entire Act should be avoided.

In seeking the legislative intent, the presumption is against any mutilation of a statute,
and the courts will resort to elimination only where an unconstitutional provision is
interjected into a statute otherwise valid, and is so independent and separable that its
removal will leave the constitutional features and purposes of the act substantially
unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A.,
485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240;
73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs.
Moir ([1913], 25 Phil., 44, 47), this court stated the well-established rule concerning
partial invalidity of statutes in the following language:

. . . where part of the a statute is void, as repugnant to the Organic Law, while another
part is valid, the valid portion, if separable from the valid, may stand and be enforced.
But in order to do this, the valid portion must be in so far independent of the invalid
portion that it is fair to presume that the Legislative would have enacted it by itself if they
had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs.
Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs.
Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to
make a complete, intelligible, and valid statute, which carries out the legislative intent.
(Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated
without causing results affecting the main purpose of the Act, in a manner contrary to the
intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969;
Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs.
Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88
N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.)
The language used in the invalid part of a statute can have no legal force or efficacy for
any purpose whatever, and what remains must express the legislative will,
independently of the void part, since the court has no power to legislate. (State vs.
Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs.
Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U.
S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation Act applicable only in those
provinces in which the respective provincial boards provided for the salaries of probation officers
were inoperative on constitutional grounds, the remainder of the Act would still be valid and may
be enforced. We should be inclined to accept the suggestions but for the fact that said section
is, in our opinion, is inseparably linked with the other portions of the Act that with the elimination
of the section what would be left is the bare idealism of the system, devoid of any practical
benefit to a large number of people who may be deserving of the intended beneficial result of
that system. The clear policy of the law, as may be gleaned from a careful examination of the
whole context, is to make the application of the system dependent entirely upon the affirmative
action of the different provincial boards through appropriation of the salaries for probation
officers at rates not lower than those provided for provincial fiscals. Without such action on the
part of the various boards, no probation officers would be appointed by the Secretary of Justice
to act in the provinces. The Philippines is divided or subdivided into provinces and it needs no
argument to show that if not one of the provinces — and this is the actual situation now —
appropriate the necessary fund for the salary of a probation officer, probation under Act No.
4221 would be illusory. There can be no probation without a probation officer. Neither can there
be a probation officer without the probation system.

Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer.
Every probation officer is given, as to the person placed in probation under his care, the powers
of the police officer. It is the duty of the probation officer to see that the conditions which are
imposed by the court upon the probationer under his care are complied with. Among those
conditions, the following are enumerated in section 3 of the Act:

That the probationer (a) shall indulge in no injurious or vicious habits;

(b) Shall avoid places or persons of disreputable or harmful character;

(c) Shall report to the probation officer as directed by the court or probation officers;

(d) Shall permit the probation officer to visit him at reasonable times at his place of
abode or elsewhere;

(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer
concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g)
Shall remain or reside within a specified place or locality;

(f) Shall make reparation or restitution to the aggrieved parties for actual damages or
losses caused by his offense;

(g) Shall comply with such orders as the court may from time to time make; and

(h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation,
promulgated in accordance with law.

The court is required to notify the probation officer in writing of the period and terms of
probation. Under section 4, it is only after the period of probation, the submission of a report of
the probation officer and appropriate finding of the court that the probationer has complied with
the conditions of probation that probation may be definitely terminated and the probationer
finally discharged from supervision. Under section 5, if the court finds that there is non-
compliance with said conditions, as reported by the probation officer, it may issue a warrant for
the arrest of the probationer and said probationer may be committed with or without bail. Upon
arraignment and after an opportunity to be heard, the court may revoke, continue or modify the
probation, and if revoked, the court shall order the execution of the sentence originally imposed.
Section 6 prescribes the duties of probation officers: "It shall be the duty of every probation
officer to furnish to all persons placed on probation under his supervision a statement of the
period and conditions of their probation, and to instruct them concerning the same; to keep
informed concerning their conduct and condition; to aid and encourage them by friendly advice
and admonition, and by such other measures, not inconsistent with the conditions imposed by
court as may seem most suitable, to bring about improvement in their conduct and condition; to
report in writing to the court having jurisdiction over said probationers at least once every two
months concerning their conduct and condition; to keep records of their work; make such report
as are necessary for the information of the Secretary of Justice and as the latter may require;
and to perform such other duties as are consistent with the functions of the probation officer and
as the court or judge may direct. The probation officers provided for in this Act may act as
parole officers for any penal or reformatory institution for adults when so requested by the
authorities thereof, and, when designated by the Secretary of Justice shall act as parole officer
of persons released on parole under Act Number Forty-one Hundred and Three, without
additional compensation."

It is argued, however, that even without section 11 probation officers maybe appointed in the
provinces under section 10 of Act which provides as follows:

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

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

That under section 10 the Secretary of Justice may appoint as many probation officers as there
are provinces or groups of provinces is, of course possible. But this would be arguing on what
the law may be or should be and not on what the law is. Between is and ought there is a far cry.
The wisdom and propriety of legislation is not for us to pass upon. We may think a law better
otherwise than it is. But much as has been said regarding progressive interpretation and judicial
legislation we decline to amend the law. We are not permitted to read into the law matters and
provisions which are not there. Not for any purpose — not even to save a statute from the doom
of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make the Insular
Government defray the salaries of probation officers in the provinces but to make the provinces
defray them should they desire to have the Probation Act apply thereto. The sum of P50,000,
appropriated "to carry out the purposes of this Act", is to be applied, among other things, for the
salaries of probation officers in the central office at Manila. These probation officers are to
receive such compensations as the Secretary of Justice may fix "until such positions shall have
been included in the Appropriation Act". It was the intention of the legislature to empower the
Secretary of Justice to fix the salaries of the probation officers in the provinces or later on to
include said salaries in an appropriation act. Considering, further, that the sum of P50,000
appropriated in section 10 is to cover, among other things, the salaries of the administrative
personnel of the Probation Office, what would be left of the amount can hardly be said to be
sufficient to pay even nominal salaries to probation officers in the provinces. We take judicial
notice of the fact that there are 48 provinces in the Philippines and we do not think it is seriously
contended that, with the fifty thousand pesos appropriated for the central office, there can be in
each province, as intended, a probation officer with a salary not lower than that of a provincial
fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said act is
complete is an impracticable thing under the remainder of the Act, unless it is conceded that in
our case there can be a system of probation in the provinces without probation officers.

Probation as a development of a modern penology is a commendable system. Probation laws

have been enacted, here and in other countries, to permit what modern criminologist call the
"individualization of the punishment", the adjustment of the penalty to the character of the
criminal and the circumstances of his particular case. It provides a period of grace in order to aid
in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be
reformed and their development into hardened criminals aborted. It, therefore, takes advantage
of an opportunity for reformation and avoids imprisonment so long as the convicts gives promise
of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312,
313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its
chief end and aim. The benefit to the individual convict is merely incidental. But while we believe
that probation is commendable as a system and its implantation into the Philippines should be
welcomed, we are forced by our inescapable duty to set the law aside because of the
repugnancy to our fundamental law.

In arriving at this conclusion, we have endeavored to consider the different aspects presented
by able counsel for both parties, as well in their memorandums as in their oral argument. We
have examined the cases brought to our attention, and others we have been able to reach in
the short time at our command for the study and deliberation of this case. In the examination of
the cases and in then analysis of the legal principles involved we have inclined to adopt the line
of action which in our opinion, is supported better reasoned authorities and is more conducive to
the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict
of authorities, we have declined to be bound by certain adjudicated cases brought to our
attention, except where the point or principle is settled directly or by clear implication by the
more authoritative pronouncements of the Supreme Court of the United States. This line of
approach is justified because:

(a) The constitutional relations between the Federal and the State governments of the
United States and the dual character of the American Government is a situation which
does not obtain in the Philippines;

(b) The situation of s state of the American Union of the District of Columbia with
reference to the Federal Government of the United States is not the situation of the
province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th
Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871),

(c) The distinct federal and the state judicial organizations of the United States do not
embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran
[1936], 35 Off. Gaz., p. 1317);
 (d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs.
New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . .
new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel.
Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law
Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be
interpreted having in view existing local conditions and environment.

Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is,
accordingly, granted. Without any pronouncement regarding costs. So ordered.

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

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

eople vs Vera

undue delagation of power; equal protection of the law

Caption: PEOPLE VS VERA

G.R. No. L-45685 65 Phil 56 November 16, 1937
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING
CORPORATION, petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG,
respondents.

Facts:
Mariano Cu Unjieng was convicted by the trial court in Manila. He filed for reconsideration and
four motions for new trial but all were denied. He then elevated to the Supreme Court and the
Supreme Court remanded the appeal to the lower court for a new trial. While awaiting new trial,
he appealed for probation alleging that the he is innocent of the crime he was convicted of. The
Judge of the Manila CFI directed the appeal to the Insular Probation Office. The IPO denied the
application. However, Judge Vera upon another request by petitioner allowed the petition to be
set for hearing. The City Prosecutor countered alleging that Vera has no power to place Cu
Unjieng under probation because it is in violation of Sec. 11 Act No. 4221 which provides that
the act of Legislature granting provincial boards the power to provide a system of probation to
convicted person. Nowhere in the law is stated that the law is applicable to a city like Manila
because it is only indicated therein that only provinces are covered. And even if Manila is
covered by the law it is unconstitutional because Sec 1 Art 3 of the Constitution provides equal
protection of laws. The said law provides absolute discretion to provincial boards and this also
constitutes undue delegation of power. Further, the said probation law may be an encroachment
of the power of the executive to provide pardon because providing probation, in effect, is
granting freedom, as in pardon.

Issues:

1. Whether or not Act No. 4221 constituted an undue delegation of legislative power
2. Whether or not the said act denies the equal protection of the laws

Discussions:

1. An act of the legislature is incomplete and hence invalid if it does not lay down any rule or
definite standard by which the administrative officer or board may be guided in the exercise
of the discretionary powers delegated to it. The probation Act does not, by the force of any
of its provisions, fix and impose upon the provincial boards any standard or guide in the
exercise of their discretionary power. What is granted, as mentioned by Justice Cardozo in
the recent case of Schecter, supra, is a “roving commission” which enables the provincial
boards to exercise arbitrary discretion. By section 11 if the Act, the legislature does not
seemingly on its own authority extend the benefits of the Probation Act to the provinces but
in reality leaves the entire matter for the various provincial boards to determine.
2. The equal protection of laws is a pledge of the protection of equal laws. The classification of
equal protection, to be reasonable, must be based on substantial distinctions which make
real differences; it must be germane to the purposes of the law; it must not be limited to
existing conditions only, and must apply equally to each member of the class.

Rulings:

1. The Court concludes that section 11 of Act No. 4221 constitutes an improper and unlawful
delegation of legislative authority to the provincial boards and is, for this reason,
unconstitutional and void. There is no set standard provided by Congress on how provincial
boards must act in carrying out a system of probation. The provincial boards are given
absolute discretion which is violative of the constitution and the doctrine of the non
delegation of power. Further, it is a violation of equity so protected by the constitution. The
challenged section of Act No. 4221 in section 11 which reads as follows: This Act shall
apply only in those provinces in which the respective provincial boards have provided for
the salary of a probation officer at rates not lower than those now provided for provincial
fiscals. Said probation officer shall be appointed by the Secretary of Justice and shall be
subject to the direction of the Probation Office.

The provincial boards of the various provinces are to determine for themselves, whether the
Probation Law shall apply to their provinces or not at all. The applicability and application of the
Probation Act are entirely placed in the hands of the provincial boards. If the provincial board
does not wish to have the Act applied in its province, all that it has to do is to decline to
appropriate the needed amount for the salary of a probation officer.

2. It is also contended that the Probation Act violates the provisions of our Bill of Rights which
prohibits the denial to any person of the equal protection of the laws. The resultant
inequality may be said to flow from the unwarranted delegation of legislative power,
although perhaps this is not necessarily the result in every case. Adopting the example
given by one of the counsel for the petitioners in the course of his oral argument, one
province may appropriate the necessary fund to defray the salary of a probation officer,
while another province may refuse or fail to do so. In such a case, the Probation Act would
be in operation in the former province but not in the latter. This means that a person
otherwise coming within the purview of the law would be liable to enjoy the benefits of
probation in one province while another person similarly situated in another province would
be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also
possible for all the provincial boards to appropriate the necessary funds for the salaries of
the probation officers in their respective provinces, in which case no inequality would result
for the obvious reason that probation would be in operation in each and every province by
the affirmative action of appropriation by all the provincial boards.
3. U.S. Supreme Court
4. Flast v. Cohen, 392 U.S. 83 (1968)
5. Flast v. Cohen
6. No. 416
7. Argued March 12, 1968
8. Decided June 10, 1968
9. 392 U.S. 83
10. Syllabus
11. Appellant taxpayers allege that federal funds have been disbursed by appellee federal
officials under the Elementary and Secondary Education Act of 1965 to finance
instruction and the purchase of educational materials for use in religious and sectarian
schools, in violation of the Establishment and Free Exercise Clauses of the First
Amendment. Appellants sought a declaration that the expenditures were not authorized
by the Act or, in the alternative, that the Act is to that extent unconstitutional, and
requested the convening of a three-judge court. A three-judge court ruled, on the
authority of Frothingham v. Mellon, 262 U. S. 447 (1923), that appellants lacked standing
to maintain the action.
12. Held:
13. 1. The three-judge court was properly convened, as the constitutional attack, even
though focused on the program's operations in New York City, would, if successful,
affect the entire regulatory scheme of the statute, and the complaint alleged a
constitutional ground for relief, albeit one coupled with an alternative nonconstitutional
ground. Pp. 392 U. S. 88-91.
14. 2. There is no absolute bar in Art. III of the Constitution to suits by federal taxpayers
challenging allegedly unconstitutional federal taxing and spending programs, since the
taxpayers may or may not have the requisite personal stake in the outcome. Pp. 392 U.
S. 91-101.
15. 3. To maintain an action challenging the constitutionality of a federal spending program,
individuals must demonstrate the necessary stake as taxpayers in the outcome of the
litigation to satisfy Art. III requirements. Pp.392 U. S. 102-103.
16. (a) Taxpayers must establish a logical link between that status and the type of legislative
enactment attacked, as it will not be sufficient to allege an incidental expenditure of tax
funds in the administration of an essentially regulatory statute. P. 392 U. S. 102.
17. (b) Taxpayers must also establish a nexus between that status and the precise nature of
the constitutional infringement alleged. They must show that the statute exceeds specific
constitutional
18. Page 392 U. S. 84
19. limitations on the exercise of the taxing and spending power, and not simply that the
enactment is generally beyond the powers delegated to Congress by Art. I, § 8. Pp.
1 392 U. S. 02-103.
 20. 4. The taxpayer appellants here have standing consistent with Art. III to invoke federal
judicial power, since they have alleged that tax money is being spent in violation of a
specific constitutional protection against the abuse of legislative power, i.e., the
Establishment Clause of the First Amendment. Frothingham v. Mellon,
supra, distinguished. Pp. 392 U. S. 103-106.
21. 271 F.Supp. 1, reversed.
22. Page 392 U. S. 85
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13. G.R. No. 160261 November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,

NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO,
INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE
VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M.
DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160262 November 10, 2003

SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-

ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-
intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA,
THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160263 November 10, 2003

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-
intervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160277 November 10, 2003

FRANCISCO I. CHAVEZ, petitioner,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX
WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN,
MARCELINO LIBANAN, EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN
GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAÑON, JR., CECILIA
CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-
HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA
JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN,
ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO,
ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS,
JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO
MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III,
ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO
TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS,
CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE,
CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA,
JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLF PLAZA,
JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS,
JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA,
ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO,
JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160292 November 10, 2003

HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA,
NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO
AND GARY S. MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS
CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND
THE HOUSE OF REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160295 November 10, 2003

SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,

vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA,
THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

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

G.R. No. 160310 November 10, 2003

LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG,

RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO
SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO
MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO
BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO
PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO,
RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR.,
EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO
BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA,
RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON
SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA,
MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.

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

G.R. No. 160318 November 10, 2003

PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,

vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES,
HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.

x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED

BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS
CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING
PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE
MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM
FUENTEBELLA, respondents.

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

G.R. No. 160343 November 10, 2003

INTEGRATED BAR OF THE PHILIPPINES, petitioner,

vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE
GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA,
THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents.

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

G.R. No. 160360 November 10, 2003

CLARO B. FLORES, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF
THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

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

G.R. No. 160365 November 10, 2003

U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN
S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN
B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES
AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE
PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF
THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE
REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY
THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE
REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT
AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents.

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

G.R. No. 160370 November 10, 2003

FR. RANHILIO CALLANGAN AQUINO, petitioner,

vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.

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

G.R. No. 160376 November 10, 2003

NILO A. MALANYAON, petitioner,

vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION
OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF
JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES,
CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.

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

G.R. No. 160392 November 10, 2003

VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND
THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.

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

G.R. No. 160397 November 10, 2003

IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE

HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.

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

G.R. No. 160403 November 10, 2003

PHILIPPINE BAR ASSOCIATION, petitioner,

vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING
OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE
PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.

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

G.R. No. 160405 November 10, 2003

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.

MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY
OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY
ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE
PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE
LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ,
FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L.
JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND
INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE
NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF
COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA,
AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN
DRILON, AS SENATE PRESIDENT, respondents.

CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent
branches of government of the nature, scope and extent of their respective constitutional
powers where the Constitution itself provides for the means and bases for its resolution.

Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one
such today involving the legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.

There may indeed be some legitimacy to the characterization that the present controversy
subject of the instant petitions – whether the filing of the second impeachment complaint against
Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year
bar provided in the Constitution, and whether the resolution thereof is a political question – has
resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a
political crisis of conscience.

In any event, it is with the absolute certainty that our Constitution is sufficient to address all the
issues which this controversy spawns that this Court unequivocally pronounces, at the first
instance, that the feared resort to extra-constitutional methods of resolving it is neither
necessary nor legally permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative,
executive or judicial branches of government by no means prescribes for absolute autonomy in
the discharge by each of that part of the governmental power assigned to it by the sovereign
people.

At the same time, the corollary doctrine of checks and balances which has been carefully
calibrated by the Constitution to temper the official acts of each of these three branches must be
given effect without destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they
are to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people.
Verily, salus populi est suprema lex.

Article XI of our present 1987 Constitution provides:

ARTICLE XI

Accountability of Public Officers

 SECTION 1. Public office is a public trust. Public officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed
from office, on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from office as provided by law, but
not by impeachment.

SECTION 3. (1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either
to affirm a favorable resolution with the Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment.
When sitting for that purpose, the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of the Supreme Court shall
preside, but shall not vote. No person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office
and disqualification to hold any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to prosecution, trial, and punishment
according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out
the purpose of this section. (Emphasis and underscoring supplied)

Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress. The relevant distinctions between
these two Congresses' House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating
Impeachment. – Impeachment
shall be initiated only by a
verified complaint for
impeachment filed by any
Member of the House of
Representatives or by any citizen
upon a resolution of
endorsement by any Member
thereof or by a verified complaint
or resolution of impeachment
filed by at least one-third (1/3) of
all the Members of the House.
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. – No
impeachment proceedings shall
be initiated against the same
official more than once within the
period of one (1) year.
RULE V
BAR AGAINST INITIATION OF
IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. – Impeachment
Proceedings Deemed Initiated. –
In cases where a Member of the
House files a verified complaint of
impeachment or a citizen files a
verified complaint that is endorsed
by a Member of the House through
a resolution of endorsement
against an impeachable officer,
impeachment proceedings against
such official are deemed initiated
on the day the Committee on
Justice finds that the verified
complaint and/or resolution against
such official, as the case may be, is
sufficient in substance, or on the
date the House votes to overturn or
affirm the finding of the said
Committee that the verified
complaint and/or resolution, as the
case may be, is not sufficient in
substance.
In cases where a verified complaint
or a resolution of impeachment is
filed or endorsed, as the case may
be, by at least one-third (1/3) of the
Members of the
House, impeachment
proceedings are deemed
initiated at the time of the filing
of such verified complaint or
resolution of impeachment with
the Secretary General.
Section 17. Bar Against Initiation
Of Impeachment Proceedings. –
Within a period of one (1) year from
the date impeachment proceedings
are deemed initiated as provided in
Section 16 hereof, no
impeachment proceedings, as
such, can be initiated against the
same official. (Italics in the original;
emphasis and underscoring
supplied)
On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by
Representative Felix William D. Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures
by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)." 3

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and
other high crimes."6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo
B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on
Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution
which reads:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

The House Committee on Justice ruled on October 13, 2003 that the first impeachment
complaint was "sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being
insufficient in substance.10 To date, the Committee Report to this effect has not yet been sent to
the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.

Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary General of the House12 by
Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella
(Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the
alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This
second impeachment complaint was accompanied by a "Resolution of
Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House
of Representatives.13

Thus arose the instant petitions against the House of Representatives, et. al., most of which
petitions contend that the filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more than once within a period of one
year."

In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the
12th Congress,"14 posits that his right to bring an impeachment complaint against then
Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in
the House Impeachment Rules adopted and approved on November 28, 2001 by the House of
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8,
and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing
respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5)
of the Constitution, to return the second impeachment complaint and/or strike it off the records
of the House of Representatives, and to promulgate rules which are consistent with the
Constitution; and (3) this Court permanently enjoin respondent House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers,
alleging that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the
Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate
President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice
or, in the event that the Senate has accepted the same, from proceeding with the impeachment
trial.

In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their
petition for Prohibition involves public interest as it involves the use of public funds necessary to
conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a
writ of prohibition enjoining Congress from conducting further proceedings on said second
impeachment complaint.

In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that
he has locus standi to bring petitions of this nature in the cases of Chavez v.
PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his
petition for Injunction that the second impeachment complaint be declared unconstitutional.

In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the
legal profession, pray in their petition for Prohibition for an order prohibiting respondent House
of Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.

In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul
M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their
petition for Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.

In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary,
allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray
that (1) the House Resolution endorsing the second impeachment complaint as well as all
issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate
and the Senate President from taking cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors
and agents to desist from conducting any proceedings or to act on the impeachment complaint.

In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the
Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing
of the second impeachment complaint involves paramount public interest and pray that Sections
16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of
Impeachment be declared null and void.

In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary
Restraining Order and Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by
the Code of Professional Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III
of the House Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second impeachment
complaint.

In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.

In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition
for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens,
citing Oposa v. Factoran17 which was filed in behalf of succeeding generations of Filipinos, pray
for the issuance of a writ prohibiting respondents House of Representatives and the Senate
from conducting further proceedings on the second impeachment complaint and that this Court
declare as unconstitutional the second impeachment complaint and the acts of respondent
House of Representatives in interfering with the fiscal matters of the Judiciary.

In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that as
an official of the Philippine Judicial Academy, he has a direct and substantial interest in the
unhampered operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate
from receiving the same or giving the impeachment complaint due course.

In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were "absolutely without any legal power to do so, as they acted
without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of
the Chief Justice to disburse the (JDF)."

In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofileña, alleging that
as professors of law they have an abiding interest in the subject matter of their petition for
Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to
inculcate in the minds of their students," pray that the House of Representatives be enjoined
from endorsing and the Senate from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.

In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays
in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction"
that the second impeachment complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the
filing of the second impeachment complaint involve matters of transcendental importance, prays
in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent House of
Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and
(3) respondent Senate be prohibited from accepting the Articles of Impeachment and from
conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in
their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the
resolution of endorsement and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event
that they have accepted the same, that they be prohibited from proceeding with the
impeachment trial.

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent the House of Representatives from
transmitting the Articles of Impeachment arising from the second impeachment complaint to the
Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of
the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional.

Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.
160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of
the judiciary.

On October 28, 2003, during the plenary session of the House of Representatives, a motion
was put forth that the second impeachment complaint be formally transmitted to the Senate, but
it was not carried because the House of Representatives adjourned for lack of quorum, 19 and as
reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.

Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug
offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited
himself, but the Court directed him to participate.

Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives
and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at
10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this
Court called on petitioners and respondents to maintain the status quo, enjoining all the parties
and others acting for and in their behalf to refrain from committing acts that would render the
petitions moot.

Also on October 28, 2003, when respondent House of Representatives through Speaker Jose
C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin
the House of Representatives, which is an independent and co-equal branch of government
under the Constitution, from the performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a
Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the
impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as
the impeachment court to try and decide impeachment cases, including the one where the Chief
Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of
the Constitution."22

Acting on the other petitions which were subsequently filed, this Court resolved to (a)
consolidate them with the earlier consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments
on November 5, 2003.

On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the
petitions, no justiciable issue was presented before it since (1) its constitutional duty to
constitute itself as an impeachment court commences only upon its receipt of the Articles of
Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain
exclusively to the proceedings in the House of Representatives.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put
Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the
petitions as the matter in question is not yet ripe for judicial determination.

On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated
Petition in Intervention."

On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang

Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World
War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310.

The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.

On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3,
2003, to wit:

Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke
it; on what issues and at what time; and whether it should be exercised by this Court at
this time.

In discussing these issues, the following may be taken up:

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);

c) political question/justiciability;

d) House's "exclusive" power to initiate all cases of impeachment;

e) Senate's "sole" power to try and decide all cases of impeachment;

f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of

Article XI of the Constitution; and

g) judicial restraint (Italics in the original)

In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of
the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the
threshold and novel issue of whether or not the power of judicial review extends to those arising
from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise
of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining.
These matters shall now be discussed in seriatim.

Judicial Review

As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.

This Court's power of judicial review is conferred on the judicial branch of the government in
Section 1, Article VIII of our present 1987 Constitution:

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

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government. (Emphasis supplied)

Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the
1935 Constitution whose provisions, unlike the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:

x x x In times of social disquietude or political excitement, the great landmarks of the

Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof.

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

perfectibility, but as much as it was within the power of our people, acting through their
delegates to so provide, that instrument which is the expression of their sovereignty
however limited, has established a republican government intended to operate and
function as a harmonious whole, under a system of checks and balances, and subject to
specific limitations and restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and limitations upon
governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along constitutional
channels,for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of this moderating
power of the courts, not to speak of its historical origin and development there, has
been set at rest by popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
 The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for
the instrumentality of the judiciary as the rational way. And when the judiciary
mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power of judicial
review under the Constitution. Even then, this power of judicial review is limited to
actual cases and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities. Narrowed as its function is
in this manner, the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed
to abide by the Constitution but also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of the
government.24 (Italics in the original; emphasis and underscoring supplied)

As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial
power itself, which is "the power of the court to settle actual controversies involving rights which
are legally demandable and enforceable."26

Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has "been set at rest by popular acquiescence
for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case
of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:

It is also not entirely unworthy of observation, that in declaring what shall be the
supreme law of the land, the constitution itself is first mentioned; and not the laws of the
United States generally, but those only which shall be made in pursuance of the
constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms
and strengthens the principle, supposed to be essential to all written constitutions,
that a law repugnant to the constitution is void; and that courts, as well as other
departments, are bound by that instrument.28(Italics in the original; emphasis
supplied)

In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted political law professor and former
Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our
government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.
 When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution. (Emphasis supplied)

As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral

component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people for which it serves.

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

It obtains not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided
for an elaborate system of checks and balances to secure coordination in the
workings of the various departments of the government. x x x And the judiciary in
turn, with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and hence to
declare executive and legislative acts void if violative of the
Constitution.32 (Emphasis and underscoring supplied)

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition
and maintenance of the boundaries of authority and control between them."33 To him, "[j]udicial
review is the chief, indeed the only, medium of participation – or instrument of intervention – of
the judiciary in that balancing operation."34

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any
branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called
"expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored
in the following excerpt from the sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:

xxx

The first section starts with a sentence copied from former Constitutions. It says:

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

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience

during martial law. As a matter of fact, it has some antecedents in the past, but the
 role of the judiciary during the deposed regime was marred considerably by the
circumstance that in a number of cases against the government, which then had
no legal defense at all, the solicitor general set up the defense of political
questions and got away with it. As a consequence, certain principles concerning
particularly the writ of habeas corpus, that is, the authority of courts to order the release
of political detainees, and other matters related to the operation and effect of martial law
failed because the government set up the defense of political question. And the
Supreme Court said: "Well, since it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that this was not a proper solution of the
questions involved. It did not merely request an encroachment upon the rights of
the people, but it, in effect, encouraged further violations thereof during the
martial law regime. x x x

xxx

Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.35 (Italics in the original; emphasis and
underscoring supplied)

To determine the merits of the issues raised in the instant petitions, this Court must necessarily
turn to the Constitution itself which employs the well-settled principles of constitutional
construction.

First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co.,
Inc. v. Land Tenure Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:

We look to the language of the document itself in our search for its meaning. We
do not of course stop there, but that is where we begin. It is to be assumed that
the words in which constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary meaning except where
technical terms are employed in which case the significance thus attached to
them prevails. As the Constitution is not primarily a lawyer's document, it being
essential for the rule of law to obtain that it should ever be present in the people's
consciousness, its language as much as possible should be understood in the sense
they have in common use. What it says according to the text of the provision to be
construed compels acceptance and negates the power of the courts to alter it, based
on the postulate that the framers and the people mean what they say. Thus these are
the cases where the need for construction is reduced to a minimum. 37 (Emphasis and
underscoring supplied)

Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary38 in this wise:

A foolproof yardstick in constitutional construction is the intention underlying the

provision under consideration. Thus, it has been held that the Court in construing a
 Constitution should bear in mind the object sought to be accomplished by its adoption,
and the evils, if any, sought to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to
make the words consonant to that reason and calculated to effect that
purpose.39 (Emphasis and underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame

Justice Amuerfina A. Melencio-Herrera, it declared:

x x x The ascertainment of that intent is but in keeping with the fundamental

principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The primary task
in constitutional construction is to ascertain and thereafter assure the realization of the
purpose of the framers and of the people in the adoption of the Constitution. It may also
be safely assumed that the people in ratifying the Constitution were guided mainly
by the explanation offered by the framers.41 (Emphasis and underscoring supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus,
in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared:

x x x [T]he members of the Constitutional Convention could not have dedicated a

provision of our Constitution merely for the benefit of one person without
considering that it could also affect others.When they adopted subsection 2, they
permitted, if not willed, that said provision should function to the full extent of its
substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.43 (Emphasis and underscoring supplied)

Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:

It is a well-established rule in constitutional construction that no one provision of

the Constitution is to be separated from all the others, to be considered alone, but
that all the provisions bearing upon a particular subject are to be brought into
view and to be so interpreted as to effectuate the great purposes of the
instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and
one section is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make
the words idle and nugatory.45 (Emphasis supplied)

If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution when the
meaning is clear. Debates in the constitutional convention "are of value as showing the
views of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave that instrument the force of
 fundamental law. We think it safer to construe the constitution from what appears
upon its face." The proper interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's understanding
thereof.46 (Emphasis and underscoring supplied)

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential

application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.

Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a
political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47

For his part, intervenor Senator Pimentel contends that the Senate's "sole power to
try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional questions relative to
impeachment proceedings.49

In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator
Pimentel rely heavily on American authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system
of checks and balances, under which impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in fashioning relief. 51 Respondents likewise
point to deliberations on the US Constitution to show the intent to isolate judicial power of review
in cases of impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution
and American authorities cannot be credited to support the proposition that the Senate's "sole
power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power of judicial review to check
and restrain any grave abuse of the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently judicial power to
determine constitutional questions incident to impeachment proceedings.

Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the
case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53 Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of development have
long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."

The major difference between the judicial power of the Philippine Supreme Court and that of the
U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the
U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court
and lower courts, as expressly provided for in the Constitution, is not just a power but also
a duty, and it was given an expanded definition to include the power to correct any grave
abuse of discretion on the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution
with respect to the power of the House of Representatives over impeachment proceedings.
While the U.S. Constitution bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing, required vote to impeach, and the one
year bar on the impeachment of one and the same official.

Respondents are also of the view that judicial review of impeachments undermines their finality
and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this
Court to exercise judicial statesmanship on the principle that "whenever possible, the Court
should defer to the judgment of the people expressed legislatively, recognizing full well the
perils of judicial willfulness and pride."56

But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave the
matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-
defined limits, or in the language of Baker v. Carr,57"judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power of judicial review.

The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support
of the argument that the impeachment power is beyond the scope of judicial review, are not in
point. These cases concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the exercise of the power of
judicial review.

There is indeed a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well
within the power and jurisdiction of the Court to inquire whether the Senate or its officials
committed a violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, it held that the petition raises a
justiciable controversy and that when an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the
House of Representatives withdrawing the nomination, and rescinding the election, of a
congressman as a member of the House Electoral Tribunal for being violative of Section 17,
Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the
House representation in the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to
judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the
legislative power is vested exclusively in Congress, this does not detract from the power of the
courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the election of any
member, irrespective of whether his election is contested, is not essential before such member-
elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review
over impeachment proceedings would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat
another."67 Both are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the powers assigned to
it by the Constitution.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have "standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest possible opportunity; and (4)
the issue of constitutionality must be the very lis mota of the case.

x x x Even then, this power of judicial review is limited to actual cases and controversies
to be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and controversies must reflect the wisdom
and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.68 (Italics in the original)

Standing

Locus standi or legal standing or has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question of standing is whether a
party alleges such personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.69

Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not
have standing since only the Chief Justice has sustained and will sustain direct personal
injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly
contends.

Upon the other hand, the Solicitor General asserts that petitioners have standing since this
Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in
cases involving paramount public interest70 and transcendental importance,71 and that
procedural matters are subordinate to the need to determine whether or not the other branches
of the government have kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them.72 Amicus curiae Dean Raul
Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental
importance and the well-entrenched rule exception that, when the real party in interest is unable
to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for
ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant
petitioners standing.

There is, however, a difference between the rule on real-party-in-interest and the rule on
standing, for the former is a concept of civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to
reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.

The difference between the rule on standing and real party in interest has been noted by
authorities thus: "It is important to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions relating to whether a
particular plaintiff is the real party in interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain parties can maintain an
 action, standing restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary in certain areas.

Standing is a special concern in constitutional law because in some cases suits are
brought not by parties who have been personally injured by the operation of a law or by
official action taken, but by concerned citizens, taxpayers or voters who actually sue in
the public interest. Hence the question in standing is whether such parties have "alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."

xxx

On the other hand, the question as to "real party in interest" is whether he is "the party
who would be benefited or injured by the judgment, or the 'party entitled to the avails of
the suit.'"76 (Citations omitted)

While rights personal to the Chief Justice may have been injured by the alleged unconstitutional
acts of the House of Representatives, none of the petitioners before us asserts a violation of the
personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of
their own rights – as taxpayers; members of Congress; citizens, individually or in a class suit;
and members of the bar and of the legal profession – which were supposedly violated by the
alleged unconstitutional acts of the House of Representatives.

In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.77 In fine, when the proceeding involves
the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of
personal interest.

In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are
illegally disbursed, or that public money is being deflected to any improper purpose, or that
there is a wastage of public funds through the enforcement of an invalid or unconstitutional
law.79 Before he can invoke the power of judicial review, however, he must specifically prove
that he has sufficient interest in preventing the illegal expenditure of money raised by taxation
and that he would sustain a direct injury as a result of the enforcement of the questioned statute
or contract. It is not sufficient that he has merely a general interest common to all members of
the public.80

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation
that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing
trial of the Chief Justice will necessarily involve the expenditure of public funds.

As for a legislator, he is allowed to sue to question the validity of any official action which he
claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office.83
While an association has legal personality to represent its members,84 especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests, 85 the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the
duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice
to clothe it with standing. Its interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty and weight as
precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the
issues presented by it.

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court
to deal properly with all interests involved in the suit,88 for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under the res judicata principle, binding on all members
of the class whether or not they were before the court.89 Where it clearly appears that not all
interests can be sufficiently represented as shown by the divergent issues raised in the
numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since
petitioners additionallyallege standing as citizens and taxpayers, however, their petition will
stand.

The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.

There being no doctrinal definition of transcendental importance, the following instructive

determinants formulated by former Supreme Court Justice Florentino P. Feliciano are
instructive: (1) the character of the funds or other assets involved in the case; (2) the presence
of a clear case of disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other party with a more
direct and specific interest in raising the questions being raised.90 Applying these determinants,
this Court is satisfied that the issues raised herein are indeed of transcendental importance.

In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people, as when the issues raised are of paramount importance to the public.91 Such liberality
does not, however, mean that the requirement that a party should have an interest in the matter
is totally eliminated. A party must, at the very least, still plead the existence of such interest, it
not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to
allege any interest in the case. He does not thus have standing.

With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution
or other disposition of property in the custody of the court or of an officer thereof. While
intervention is not a matter of right, it may be permitted by the courts when the applicant shows
facts which satisfy the requirements of the law authorizing intervention.92

In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they
raise the same issues and the same standing, and no objection on the part of petitioners
Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for
Leave of Court to Intervene and Petition-in-Intervention.

Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to
join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene,
alleging that "they will suffer if this insidious scheme of the minority members of the House of
Representatives is successful," this Court found the requisites for intervention had been
complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to
raise the additional issue of whether or not the second impeachment complaint against the
Chief Justice is valid and based on any of the grounds prescribed by the Constitution.

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et

al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in
the matter in litigation the respective motions to intervene were hereby granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilon's. He
alleges that submitting to this Court's jurisdiction as the Senate President does will undermine
the independence of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel
possesses a legal interest in the matter in litigation, he being a member of Congress against
which the herein petitions are directed. For this reason, and to fully ventilate all substantial
issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier
stated, allowed to argue.

Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing
taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit:

x x x While, concededly, the elections to be held involve the expenditure of public

moneys, nowhere in their Petition do said petitioners allege that their tax money is
"being extracted and spent in violation of specific constitutional protection against
abuses of legislative power," or that there is a misapplication of such funds by
respondent COMELEC, or that public money is being deflected to any improper purpose.
Neither do petitioners seek to restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law.94 (Citations omitted)

In praying for the dismissal of the petitions, Soriano failed even to allege that the act of
petitioners will result in illegal disbursement of public funds or in public money being deflected to
any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to
clothe him with standing.

Ripeness and Prematurity

In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, "it is a prerequisite that something had by then been
accomplished or performed by either branch before a court may come into the picture."96 Only
then may the courts pass on the validity of what was done, if and when the latter is challenged
in an appropriate legal proceeding.

The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The
questioned acts having been carried out, i.e., the second impeachment complaint had been filed
with the House of Representatives and the 2001 Rules have already been already promulgated
and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and
performed before suit, as Tan v. Macapagal holds, has been complied with.

Related to the issue of ripeness is the question of whether the instant petitions are
premature. Amicus curiae former Senate President Jovito R. Salonga opines that there may be
no urgent need for this Court to render a decision at this time, it being the final arbiter on
questions of constitutionality anyway. He thus recommends that all remedies in the House and
Senate should first be exhausted.

Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to
this Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional questions themselves when
the Articles of Impeachment are presented on a motion to transmit to the same to the Senate.
The dean maintains that even assuming that the Articles are transmitted to the Senate, the
Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss.

The dean's position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional
infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second
impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of
Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries.

Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither
the House of Representatives nor the Senate is clothed with the power to rule with
definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or
otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I,
Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power
to grant it.

Justiciability

In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term
"political question," viz:

[T]he term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the Government."
It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure.99(Italics in the original)

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason,
this Court vacillated on its stance of taking cognizance of cases which involved political
questions. In some cases, this Court hid behind the cover of the political question doctrine and
refused to exercise its power of judicial review.100 In other cases, however, despite the seeming
political nature of the therein issues involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon political bodies. 101 Even in
the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of
whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political
question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a
political question, it being a question decided by the people in their sovereign capacity.

The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion,
when he became a Constitutional Commissioner, to clarify this Court's power of judicial review
and its application on issues involving political questions, viz:

MR. CONCEPCION. Thank you, Mr. Presiding Officer.

I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment
that the judiciary is the weakest among the three major branches of the service. Since the
legislature holds the purse and the executive the sword, the judiciary has nothing with which to
enforce its decisions or commands except the power of reason and appeal to conscience which,
after all, reflects the will of God, and is the most powerful of all other powers without exception.
x x x And so, with the body's indulgence, I will proceed to read the provisions drafted by the
Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:

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

I suppose nobody can question it.

The next provision is new in our constitutional law. I will read it first and explain.

Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part or instrumentality of the government.

Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably by the
circumstance that in a number of cases against the government, which then had
no legal defense at all, the solicitor general set up the defense of political
questions and got away with it. As a consequence, certain principles concerning
particularly the writ of habeas corpus, that is, the authority of courts to order the
release of political detainees, and other matters related to the operation and effect
of martial law failed because the government set up the defense of political
question. And the Supreme Court said: "Well, since it is political, we have no authority
to pass upon it." The Committee on the Judiciary feels that this was not a proper
solution of the questions involved. It did not merely request an encroachment
upon the rights of the people, but it, in effect, encouraged further violations
thereof during the martial law regime. I am sure the members of the Bar are familiar
with this situation. But for the benefit of the Members of the Commission who are not
lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on
the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was
announced on September 22, although the proclamation was dated September 21. The
obvious reason for the delay in its publication was that the administration had
apprehended and detained prominent newsmen on September 21. So that when martial
law was announced on September 22, the media hardly published anything about it. In
fact, the media could not publish any story not only because our main writers were
already incarcerated, but also because those who succeeded them in their jobs were
under mortal threat of being the object of wrath of the ruling party. The 1971
Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had
not finished the Constitution; it had barely agreed in the fundamentals of the
Constitution. I forgot to say that upon the proclamation of martial law, some delegates to
that 1971 Constitutional Convention, dozens of them, were picked up. One of them was
our very own colleague, Commissioner Calderon. So, the unfinished draft of the
Constitution was taken over by representatives of Malacañang. In 17 days, they finished
what the delegates to the 1971 Constitutional Convention had been unable to
accomplish for about 14 months. The draft of the 1973 Constitution was presented to the
President around December 1, 1972, whereupon the President issued a decree calling a
plebiscite which suspended the operation of some provisions in the martial law decree
which prohibited discussions, much less public discussions of certain matters of public
concern. The purpose was presumably to allow a free discussion on the draft of the
Constitution on which a plebiscite was to be held sometime in January 1973. If I may use
a word famous by our colleague, Commissioner Ople, during the interregnum, however,
the draft of the Constitution was analyzed and criticized with such a telling effect that
Malacañang felt the danger of its approval. So, the President suspended indefinitely the
holding of the plebiscite and announced that he would consult the people in a
referendum to be held from January 10 to January 15. But the questions to be submitted
in the referendum were not announced until the eve of its scheduled beginning, under
the supposed supervision not of the Commission on Elections, but of what was then
designated as "citizens assemblies or barangays." Thus the barangays came into
existence. The questions to be propounded were released with proposed answers
thereto, suggesting that it was unnecessary to hold a plebiscite because the answers
given in the referendum should be regarded as the votes cast in the plebiscite.
Thereupon, a motion was filed with the Supreme Court praying that the holding of the
referendum be suspended. When the motion was being heard before the Supreme
Court, the Minister of Justice delivered to the Court a proclamation of the President
declaring that the new Constitution was already in force because the overwhelming
majority of the votes cast in the referendum favored the Constitution. Immediately after
the departure of the Minister of Justice, I proceeded to the session room where the case
was being heard. I then informed the Court and the parties the presidential proclamation
declaring that the 1973 Constitution had been ratified by the people and is now in force.

A number of other cases were filed to declare the presidential proclamation null and
void. The main defense put up by the government was that the issue was a political
question and that the court had no jurisdiction to entertain the case.

xxx

The government said that in a referendum held from January 10 to January 15, the vast
majority ratified the draft of the Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified of any referendum in their
respective places of residence, much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.

In the Philippines, even local gossips spread like wild fire. So, a majority of the members
of the Court felt that there had been no referendum.

Second, a referendum cannot substitute for a plebiscite. There is a big difference

between a referendum and a plebiscite. But another group of justices upheld the
defense that the issue was a political question. Whereupon, they dismissed the
case. This is not the only major case in which the plea of "political question" was
set up. There have been a number of other cases in the past.

x x x The defense of the political question was rejected because the issue was
clearly justiciable.

xxx

x x x When your Committee on the Judiciary began to perform its functions, it faced the
following questions: What is judicial power? What is a political question?

The Supreme Court, like all other courts, has one main function: to settle actual
controversies involving conflicts of rights which are demandable and enforceable. There
are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a
decided case, a husband complained that his wife was unwilling to perform her duties as
a wife. The Court said: "We can tell your wife what her duties as such are and that she is
bound to comply with them, but we cannot force her physically to discharge her main
 marital duty to her husband. There are some rights guaranteed by law, but they are so
personal that to enforce them by actual compulsion would be highly derogatory to
human dignity."

This is why the first part of the second paragraph of Section I provides that:

Judicial power includes the duty of courts to settle actual controversies involving rights
which are legally demandable or enforceable . . .

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a
presidential system of government, the Supreme Court has, also another
important function. The powers of government are generally considered divided
into three branches: the Legislative, the Executive and the Judiciary. Each one is
supreme within its own sphere and independent of the others. Because of that
supremacy power to determine whether a given law is valid or not is vested in
courts of justice.

Briefly stated, courts of justice determine the limits of power of the agencies and
offices of the government as well as those of its officers. In other words, the
judiciary is the final arbiter on the question whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute an abuse of discretion amounting
to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power
but a duty to pass judgment on matters of this nature.

This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute a political question.

I have made these extended remarks to the end that the Commissioners may have an
initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis
supplied)

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
clarified the concept of judicial power, thus:

MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power
is not vested in the Supreme Court alone but also in other lower courts as may be
created by law.

MR. CONCEPCION. Yes.

MR. NOLLEDO. And so, is this only an example?

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but
where there is a question as to whether the government had authority or had
abused its authority to the extent of lacking jurisdiction or excess of jurisdiction,
that is not a political question. Therefore, the court has the duty to decide.

xxx
 FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme
Court according to the new numerical need for votes.

On another point, is it the intention of Section 1 to do away with the political

question doctrine?

MR. CONCEPCION. No.

FR. BERNAS. It is not.

MR. CONCEPCION. No, because whenever there is an abuse of discretion,

amounting to a lack of jurisdiction. . .

FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away
with the political question doctrine.

MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial
power. But the Gentleman will notice it says, "judicial power includes" and the
reason being that the definition that we might make may not cover all possible
areas.

FR. BERNAS. So, this is not an attempt to solve the problems arising from the
political question doctrine.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)

From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear
that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly
political questions." From this clarification it is gathered that there are two species of political
questions: (1) "truly political questions" and (2) those which "are not truly political questions."

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of
separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly political in nature.

As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.

In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:

The present Constitution limits resort to the political question doctrine and broadens the
scope of judicial inquiry into areas which the Court, under previous constitutions, would
have normally left to the political departments to decide.106 x x x

In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court
declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The
 jurisdiction to delimit constitutional boundaries has been given to this Court. It
cannot abdicate that obligation mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of the principle in
appropriate cases."108 (Emphasis and underscoring supplied)

And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in proper cases, even the
political question.110 x x x (Emphasis and underscoring supplied.)

Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political
questions may be problematic. There has been no clear standard. The American case of Baker
v. Carr111 attempts to provide some:

x x x Prominent on the surface of any case held to involve a political question is found
a textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for resolving
it; or the impossibility of deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements
by various departments on one question.112(Underscoring supplied)

Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of
judicially discoverable and manageable standards for resolving it; and (3) the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion. These
standards are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.

The problem in applying the foregoing standards is that the American concept of judicial review
is radically different from our current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether they should pass upon a
constitutional issue.

In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits
on powers or functions conferred upon political bodies. If there are, then our courts are duty-
bound to examine whether the branch or instrumentality of the government properly acted within
such limits. This Court shall thus now apply this standard to the present controversy.

These petitions raise five substantial issues:

I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.

II. Whether the second impeachment complaint was filed in accordance with Section
3(4), Article XI of the Constitution.
 III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated
fiscal autonomy of the judiciary.

IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the
12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of
the Constitution.

V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI
of the Constitution.

The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require
this Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the
Constitutional Commission.113

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In
fact, an examination of the records of the 1986 Constitutional Commission shows that the
framers could find no better way to approximate the boundaries of betrayal of public trust and
other high crimes than by alluding to both positive and negative examples of both, without
arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon
this court to decide a non-justiciable political question which is beyond the scope of its judicial
power under Section 1, Article VIII.

Lis Mota

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:

x x x It is a well-established rule that a court should not pass upon a constitutional

question and decide a law to be unconstitutional or invalid, unless such question is
raised by the parties and that when it is raised, if the record also presents some other
ground upon which the court may rest its judgment, that course will be adopted
and the constitutional question will be left for consideration until a case arises in
which a decision upon such question will be unavoidable.116 [Emphasis and
underscoring supplied]

The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of a judicial inquiry into
such a question are first satisfied. Thus, there must be an actual case or controversy
involving a conflict of legal rights susceptible of judicial determination, the constitutional
question must have been opportunely raised by the proper party, and the resolution of
the question is unavoidably necessary to the decision of the case
itself.118 [Emphasis supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable
and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome
of this controversy could possibly be made to rest. In determining whether one, some or all of
the remaining substantial issues should be passed upon, this Court is guided by the related
cannon of adjudication that "the court should not form a rule of constitutional law broader than is
required by the precise facts to which it is applied."119

In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution120 calling
for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers;
(c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an
assault on the independence of the judiciary.121

Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of
this Court that the issue of the constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative inquiries in general,
which would thus be broader than is required by the facts of these consolidated cases. This
opinion is further strengthened by the fact that said petitioners have raised other grounds in
support of their petition which would not be adversely affected by the Court's ruling.

En passant, this Court notes that a standard for the conduct of legislative inquiries has already
been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:

The 1987 Constitution expressly recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:

The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.

The power of both houses of Congress to conduct inquiries in aid of legislation is not,
therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted
provision of the Constitution. Thus, as provided therein, the investigation must be "in aid
of legislation in accordance with its duly published rules of procedure" and that "the
rights of persons appearing in or affected by such inquiries shall be respected." It follows
then that the right rights of persons under the Bill of Rights must be respected, including
the right to due process and the right not be compelled to testify against one's self.123

In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since the
second impeachment complaint was verified and filed only by Representatives Gilberto
Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of
Section 3 (4), Article XI of the Constitution which reads:

Section 3(4) In case the verified complaint or resolution of impeachment is filed by at

least one-third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

They assert that while at least 81 members of the House of Representatives signed a
Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the
application of the afore-mentioned section in that the "verified complaint or resolution of
impeachment" was not filed "by at least one-third of all the Members of the House." With the
exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are
alleged to have verified the same merely as a "Resolution of Endorsement." Intervenors point to
the "Verification" of the Resolution of Endorsement which states that:

"We are the proponents/sponsors of the Resolution of Endorsement of the

abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124

Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for
said second impeachment complaint to automatically become the Articles of Impeachment and
for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely
endorsed, by at least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment complaint should
have been calendared and referred to the House Committee on Justice under Section 3(2),
Article XI of the Constitution, viz:

Section 3(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the
corresponding resolution. The resolution shall be calendared for consideration by the
House within ten session days from receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who
signed and verified the second impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the
House of Representatives as endorsers is not the resolution of impeachment contemplated by
the Constitution, such resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.

While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit
the scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy.
Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions
would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but
the efforts presented by the other petitioners as well.

Again, the decision to discard the resolution of this issue as unnecessary for the determination
of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their
own. Consequently, they are not unduly prejudiced by this Court's decision.

In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute
the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the
House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.

Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of
impeachment. Again, this Court reiterates that the power of judicial review includes the power of
review over justiciable issues in impeachment proceedings.

On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses because Members of
the House of Representatives are subject to them.

The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can
jurisdiction be renounced as there is no other tribunal to which the controversy may be
referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec.
1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to
take cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas,
"jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it,
even if it is vexatious, would be a dereliction of duty."

Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do
so.128 On the occasion that this Court had been an interested party to the controversy before it,
it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his] appointment to the office,
the public has laid on [a member of the judiciary] their confidence that [he] is mentally and
morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him]
to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or
power and to be equipped with a moral fiber strong enough to resist the temptations lurking in
[his] office."130

The duty to exercise the power of adjudication regardless of interest had already been settled in
the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-
Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all
of them were interested parties to said case as respondents therein. This would have reduced
the Tribunal's membership to only its three Justices-Members whose disqualification was not
sought, leaving them to decide the matter. This Court held:

Where, as here, a situation is created which precludes the substitution of any Senator
sitting in the Tribunal by any of his other colleagues in the Senate without inviting the
same objections to the substitute's competence, the proposed mass disqualification, if
sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty
that no other court or body can perform, but which it cannot lawfully discharge if shorn of
the participation of its entire membership of Senators.

To our mind, this is the overriding consideration — that the Tribunal be not prevented
from discharging a duty which it alone has the power to perform, the performance of
which is in the highest public interest as evidenced by its being expressly imposed by no
less than the fundamental law.

It is aptly noted in the first of the questioned Resolutions that the framers of the
Constitution could not have been unaware of the possibility of an election contest that
would involve all Senators—elect, six of whom would inevitably have to sit in judgment
thereon. Indeed, such possibility might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the
Constitution provides no scheme or mode for settling such unusual situations or for the
 substitution of Senators designated to the Tribunal whose disqualification may be
sought. Litigants in such situations must simply place their trust and hopes of vindication
in the fairness and sense of justice of the Members of the Tribunal. Justices and
Senators, singly and collectively.

Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral

Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said
Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial judgment. What
we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire membership of Senators and that no
amendment of its Rules can confer on the three Justices-Members alone the power of
valid adjudication of a senatorial election contest.

More recently in the case of Estrada v. Desierto,132 it was held that:

Moreover, to disqualify any of the members of the Court, particularly a majority of them,
is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by
the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And
if that judge is the one designated by the Constitution to exercise the jurisdiction of his
court, as is the case with the Justices of this Court, the deprivation of his or their judicial
power is equivalent to the deprivation of the judicial power of the court itself. It affects the
very heart of judicial independence. The proposed mass disqualification, if sanctioned
and ordered, would leave the Court no alternative but to abandon a duty which it cannot
lawfully discharge if shorn of the participation of its entire membership of
Justices.133 (Italics in the original)

Besides, there are specific safeguards already laid down by the Court when it exercises its
power of judicial review.

In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-
adversary proceeding, declining because to decide such questions 'is legitimate only in
the last resort, and as a necessity in the determination of real, earnest and vital
controversy between individuals. It never was the thought that, by means of a friendly
suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'

2. The Court will not 'anticipate a question of constitutional law in advance of the
necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case.'

3. The Court will not 'formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly presented by
the record, if there is also present some other ground upon which the case may be
disposed of. This rule has found most varied application. Thus, if a case can be decided
on either of two grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the latter. Appeals from
the highest court of a state challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment can be sustained on an
independent state ground.
 5. The Court will not pass upon the validity of a statute upon complaint of one who fails
to show that he is injured by its operation. Among the many applications of this rule,
none is more striking than the denial of the right of challenge to one who lacks a
personal or property right. Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the
Court affirmed the dismissal of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the
challenge of the federal Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one
who has availed himself of its benefits.

7. When the validity of an act of the Congress is drawn in question, and even if a serious
doubt of constitutionality is raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly possible by which the question
may be avoided (citations omitted).

The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from
different decisions of the United States Supreme Court, can be encapsulated into the following
categories:

1. that there be absolute necessity of deciding a case

2. that rules of constitutional law shall be formulated only as required by the facts of the
case

3. that judgment may not be sustained on some other ground

4. that there be actual injury sustained by the party by reason of the operation of the
statute

5. that the parties are not in estoppel

6. that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:

1. actual case or controversy calling for the exercise of judicial power

2. the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement

3. the question of constitutionality must be raised at the earliest possible opportunity

4. the issue of constitutionality must be the very lis mota of the case.136

Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that "judicial review of impeachments might also lead to embarrassing conflicts
between the Congress and the [J]udiciary." They stress the need to avoid the appearance of
impropriety or conflicts of interest in judicial hearings, and the scenario that it would be
confusing and humiliating and risk serious political instability at home and abroad if the judiciary
countermanded the vote of Congress to remove an impeachable official.137 Intervenor Soriano
echoes this argument by alleging that failure of this Court to enforce its Resolution against
Congress would result in the diminution of its judicial authority and erode public confidence and
faith in the judiciary.

Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court
to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon
their constitutional duties just because their action may start, if not precipitate, a crisis.

Justice Feliciano warned against the dangers when this Court refuses to act.

x x x Frequently, the fight over a controversial legislative or executive act is not regarded
as settled until the Supreme Court has passed upon the constitutionality of the act
involved, the judgment has not only juridical effects but also political consequences.
Those political consequences may follow even where the Court fails to grant the
petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently,
failure to act explicitly, one way or the other, itself constitutes a decision for the
respondent and validation, or at least quasi-validation, follows." 138

Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there
were not enough votes either to grant the petitions, or to sustain respondent's claims," 140 the
pre-existing constitutional order was disrupted which paved the way for the establishment of the
martial law regime.

Such an argument by respondents and intervenor also presumes that the coordinate branches
of the government would behave in a lawless manner and not do their duty under the law to
uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any
of the branches of government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land.

Substituting the word public officers for judges, this Court is well guided by the doctrine
in People v. Veneracion, to wit:141

Obedience to the rule of law forms the bedrock of our system of justice. If [public
officers], under the guise of religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are required by law to exercise the
duties of their office, then law becomes meaningless. A government of laws, not of men
excludes the exercise of broad discretionary powers by those acting under its authority.
Under this system, [public officers] are guided by the Rule of Law, and ought "to protect
and enforce it without fear or favor," resist encroachments by governments, political
parties, or even the interference of their own personal beliefs.142

Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress

Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16

and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of
our present Constitution, contending that the term "initiate" does not mean "to file;" that Section
3 (1) is clear in that it is the House of Representatives, as a collective body, which has the
exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to
file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be
accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of
the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any
member; or (3) by at least 1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the initiation of impeachment
proceedings against the same officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate Justices had not been initiated as
the House of Representatives, acting as the collective body, has yet to act on it.

The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to
statutory construction is, therefore, in order.

That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
"initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong
during the Constitutional Commission proceedings, which he (Commissioner Regalado)
as amicus curiae affirmed during the oral arguments on the instant petitions held on November
5, 2003 at which he added that the act of "initiating" included the act of taking initial action on
the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article
XI (3) and (5) of the Constitution means to file the complaint and take initial action on it.

"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to

commence, or set going. As Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate the first action," which jibes with
Justice Regalado's position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:

Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts

consisting of a beginning, a middle and an end. The end is the transmittal of the articles
of impeachment to the Senate. The middle consists of those deliberative moments
leading to the formulation of the articles of impeachment. The beginning or the initiation
is the filing of the complaint and its referral to the Committee on Justice.

Finally, it should be noted that the House Rule relied upon by Representatives
Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the
Justice Committee votes in favor of impeachment or when the House reverses a
contrary vote of the Committee. Note that the Rule does not say "impeachment
proceedings" are initiated but rather are "deemed initiated." The language is recognition
that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a
time after actual initiation. (Emphasis and underscoring supplied)

As stated earlier, one of the means of interpreting the Constitution is looking into the intent of
the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its
records:

MR. MAAMBONG. With reference to Section 3, regarding the procedure and the
substantive provisions on impeachment, I understand there have been many proposals
and, I think, these would need some time for Committee action.

However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this
body. This is borne out of my experience as a member of the Committee on Justice,
Human Rights and Good Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the impeachment
proceedings starting with initiation, action of the Speaker committee action,
calendaring of report, voting on the report, transmittal referral to the Senate, trial
and judgment by the Senate.

xxx

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the
approval of the amendment submitted by Commissioner Regalado, but I will just make of
 record my thinking that we do not really initiate the filing of the Articles of Impeachment
on the floor. The procedure, as I have pointed out earlier, was that the initiation
starts with the filing of the complaint. And what is actually done on the floor is
that the committee resolution containing the Articles of Impeachment is the one
approved by the body.

As the phraseology now runs, which may be corrected by the Committee on Style, it
appears that the initiation starts on the floor. If we only have time, I could cite examples
in the case of the impeachment proceedings of President Richard Nixon wherein the
Committee on the Judiciary submitted the recommendation, the resolution, and the
Articles of Impeachment to the body, and it was the body who approved the resolution. It
is not the body which initiates it. It only approves or disapproves the
resolution. So, on that score, probably the Committee on Style could help in
rearranging these words because we have to be very technical about this. I have been
bringing with me The Rules of the House of Representatives of the U.S. Congress. The
Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I
have submitted my proposal, but the Committee has already decided. Nevertheless, I
just want to indicate this on record.

xxx

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of
Section 3 (3). My reconsideration will not at all affect the substance, but it is only in
keeping with the exact formulation of the Rules of the House of Representatives of the
United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that on
page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on line 19 after the word
"resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in
"impeachment" and replace the word "by" with OF, so that the whole section will now
read: "A vote of at least one-third of all the Members of the House shall be necessary
either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or
to override its contrary resolution. The vote of each Member shall be recorded."

I already mentioned earlier yesterday that the initiation, as far as the House of
Representatives of the United States is concerned, really starts from the filing of the
verified complaint and every resolution to impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned
on line 25 in the case of the direct filing of a verified compliant of one-third of all the
Members of the House. I will mention again, Madam President, that my amendment will
not vary the substance in any way. It is only in keeping with the uniform procedure of the
House of Representatives of the United States Congress. Thank you, Madam
President.143 (Italics in the original; emphasis and udnerscoring supplied)

This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.144

It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In
his amicus curiae brief, Commissioner Maambong explained that "the obvious reason in
deleting the phrase "to initiate impeachment proceedings" as contained in the text of the
provision of Section 3 (3) was to settle and make it understood once and for all that the
initiation of impeachment proceedings starts with the filing of the complaint, and the vote
of one-third of the House in a resolution of impeachment does not initiate the impeachment
proceedings which was already initiated by the filing of a verified complaint under Section
3, paragraph (2), Article XI of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,
who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used
in Article XI, Section 3(5) means to file, both adding, however, that the filing must be
accompanied by an action to set the complaint moving.

During the oral arguments before this Court, Father Bernas clarified that the word "initiate,"
appearing in the constitutional provision on impeachment, viz:

Section 3 (1) The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.

xxx

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year, (Emphasis supplied)

refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The object
in the first sentence is "impeachment case." The object in the second sentence is "impeachment
proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment case is the legal controversy that
must be decided by the Senate. Above-quoted first provision provides that the House, by a vote
of one-third of all its members, can bring a case to the Senate. It is in that sense that the House
has "exclusive power" to initiate all cases of impeachment. No other body can do it. However,
before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin
word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a
beginning, a middle, and an end. It takes place not in the Senate but in the House and consists
of several steps: (1) there is the filing of a verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of the House of the
Representatives; (2) there is the processing of this complaint by the proper Committee which
may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects
or upholds the complaint, the resolution must be forwarded to the House for further processing;
and (4) there is the processing of the same complaint by the House of Representatives which
either affirms a favorable resolution of the Committee or overrides a contrary resolution by a
vote of one-third of all the members. If at least one third of all the Members upholds the
complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point
that the House "initiates an impeachment case." It is at this point that an impeachable public
official is successfully impeached. That is, he or she is successfully charged with an
impeachment "case" before the Senate as impeachment court.

Father Bernas further explains: The "impeachment proceeding" is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House proceeding
and the beginning of another proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the resolution passed on to it by the
Committee, because something prior to that has already been done. The action of the House is
already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is
initiated or begins, when a verified complaint is filed and referred to the Committee on Justice
for action. This is the initiating step which triggers the series of steps that follow.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a
proposal reached the floor proposing that "A vote of at least one-third of all the Members of the
House shall be necessary… to initiate impeachment proceedings," this was met by a proposal
to delete the line on the ground that the vote of the House does not initiate impeachment
proceeding but rather the filing of a complaint does.146 Thus the line was deleted and is not
found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be
initiated against the same official more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action.
By his explanation, this interpretation is founded on the common understanding of the meaning
of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people,
both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary
meaning into ordinary words and not abstruse meaning, they ratify words as they understand it
and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment
proceedings because Section 3 (1) says "The House of Representatives shall have the
exclusive power to initiate all cases of impeachment," This is a misreading of said provision and
is contrary to the principle of reddendo singula singulis by equating "impeachment cases" with
"impeachment proceeding."

From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of
the impeachment complaint coupled with Congress' taking initial action of said complaint.

Having concluded that the initiation takes place by the act of filing and referral or endorsement
of the impeachment complaint to the House Committee on Justice or, by the filing by at least
one-third of the members of the House of Representatives with the Secretary General of the
House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be filed against the same
official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment

proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice
that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint
and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the
Secretary-General of the House of Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House. These rules clearly contravene
Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning
from filing and referral.

In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI,
citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to
Justices who were delegates to the Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states that this Court
likened the former members of the Constitutional Convention to actors who are so absorbed in
their emotional roles that intelligent spectators may know more about the real meaning because
of the latter's balanced perspectives and disinterestedness.148

Justice Gutierrez's statements have no application in the present petitions. There are at present
only two members of this Court who participated in the 1986 Constitutional Commission – Chief
Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has examined the
records of the deliberations and proceedings thereof.

Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear
and unequivocal that it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section." Clearly, its power to
promulgate its rules on impeachment is limited by the phrase "to effectively carry out the
purpose of this section." Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of
Article XI clearly provides for other specific limitations on its power to make rules, viz:

Section 3. (1) x x x

(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business within ten session days, and
referred to the proper Committee within three session days thereafter. The Committee,
after hearing, and by a majority vote of all its Members, shall submit its report to the
House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary to
either affirm a favorable resolution with the Articles of Impeachment of the Committee, or
override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-
third of all the Members of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than
once within a period of one year.

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have
the power to alter or amend the meaning of the Constitution without need of referendum.

In Osmeña v. Pendatun,149 this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of the Commission on
Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be
given to a rule affects persons other than members of the Legislature, the question becomes
judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph &
Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution
empowers each house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there should be a
reasonable relation between the mode or method of proceeding established by the rule and the
result which is sought to be attained. It is only within these limitations that all matters of method
are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia,
Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic
as he stressed that in the Philippine setting there is even more reason for courts to inquire into
the validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are non-
justiciable. Nor do I agree that we will trivialize the principle of separation of
power if we assume jurisdiction over he case at bar. Even in the United States, the
principle of separation of power is no longer an impregnable impediment against the
interposition of judicial power on cases involving breach of rules of procedure by
legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view
the issues before the Court. It is in Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review congressional rules. It held:

"x x x

"The Constitution, in the same section, provides, that each house may determine the
rules of its proceedings." It appears that in pursuance of this authority the House had,
prior to that day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the names of
members sufficient to make a quorum in the hall of the House who do not vote shall be
noted by the clerk and recorded in the journal, and reported to the Speaker with the
names of the members voting, and be counted and announced in determining the
presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is as
to the validity of this rule, and not what methods the Speaker may of his own motion
resort to for determining the presence of a quorum, nor what matters the Speaker or
clerk may of their own volition place upon the journal. Neither do the advantages or
disadvantages, the wisdom or folly, of such a rule present any matters for judicial
consideration. With the courts the question is only one of power. The Constitution
empowers each house to determine its rules of proceedings. It may not by its
rules ignore constitutional restraints or violate fundamental rights, and there
should be a reasonable relation between the mode or method of proceedings
established by the rule and the result which is sought to be attained. But within
these limitations all matters of method are open to the determination of the House, and it
is no impeachment of the rule to say that some other way would be better, more
accurate, or even more just. It is no objection to the validity of a rule that a different one
has been prescribed and in force for a length of time. The power to make rules is not
one which once exercised is exhausted. It is a continuous power, always subject to be
exercised by the House, and within the limitations suggested, absolute and beyond the
challenge of any other body or tribunal."

Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was examined by
the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional
restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable
relationship with the result sought to be attained. By examining Rule XV, the Court did
not allow its jurisdiction to be defeated by the mere invocation of the principle of
separation of powers.154

xxx

In the Philippine setting, there is a more compelling reason for courts to

categorically reject the political question defense when its interposition will cover
up abuse of power. For section 1, Article VIII of our Constitution
was intentionally cobbled to empower courts "x x x to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government." This
power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It
was not also xeroxed from the US Constitution or any foreign state constitution.
The CONCOM granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state power were
shielded from judicial scrutiny by the misuse of the political question
 doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of the judiciary vis-à-vis the Executive
and the Legislative departments of government.155

xxx

The Constitution cannot be any clearer. What it granted to this Court is not a mere
power which it can decline to exercise. Precisely to deter this disinclination, the
Constitution imposed it as a duty of this Court to strike down any act of a branch
or instrumentality of government or any of its officials done with grave abuse of
discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court against the other branches
of government despite their more democratic character, the President and the legislators
being elected by the people.156

xxx

The provision defining judicial power as including the 'duty of the courts of justice. . . to
determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government'
constitutes the capstone of the efforts of the Constitutional Commission to upgrade the
powers of this court vis-à-vis the other branches of government. This provision was
dictated by our experience under martial law which taught us that a stronger and more
independent judiciary is needed to abort abuses in government. x x x

xxx

In sum, I submit that in imposing to this Court the duty to annul acts of government
committed with grave abuse of discretion, the new Constitution transformed this Court
from passivity to activism. This transformation, dictated by our distinct experience as
nation, is not merely evolutionary but revolutionary.Under the 1935 and the 1973
Constitutions, this Court approached constitutional violations by initially determining what
it cannot do; under the 1987 Constitution, there is a shift in stress – this Court is
mandated to approach constitutional violations not by finding out what it should
not do but what it must do. The Court must discharge this solemn duty by not
resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new
constitutional provision as the case at bar once more calls us to define the parameters of
our power to review violations of the rules of the House. We will not be true to our
trust as the last bulwark against government abuses if we refuse to exercise this
new power or if we wield it with timidity. To be sure, it is this exceeding timidity to
unsheathe the judicial sword that has increasingly emboldened other branches of
government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed
the view of former Senator Salonga that this novel provision stretching the latitude of
judicial power is distinctly Filipino and its interpretation should not be depreciated by
undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the
lessons of our own history should provide us the light and not the experience of
foreigners.157 (Italics in the original emphasis and underscoring supplied)

Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.

Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that
"the House of Representatives shall have the sole power of impeachment." It adds nothing
more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation
whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of
Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.

The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or
(2) once the House itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by the filing or
endorsement before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different
from "filing."

Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment complaint
and referral to the House Committee on Justice, the initial action taken thereon, the meaning of
Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in
the foregoing manner, another may not be filed against the same official within a one year
period following Article XI, Section 3(5) of the Constitution.

In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.

Conclusion

If there is anything constant about this country, it is that there is always a phenomenon that
takes the center stage of our individual and collective consciousness as a people with our
characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the
seriousness of the controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally exhausting experience.
Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe
to be the correct position or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets
armed with their familiar slogans and chants to air their voice on the matter. Various sectors of
society - from the business, retired military, to the academe and denominations of faith – offered
suggestions for a return to a state of normalcy in the official relations of the governmental
branches affected to obviate any perceived resulting instability upon areas of national life.

Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any
kind and form with respect to the prosecution by the House of Representatives of the
impeachment complaint against the subject respondent public official. When the present
petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-
interference was made through what are now the arguments of "lack of jurisdiction," "non-
justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may
have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the Court found the existence in full
of all the requisite conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a
genuine constitutional material which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls under the Court's
jurisdiction, no other course of action can be had but for it to pass upon that problem head on.

The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis in
fact and in law.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only
the main issue of whether the impeachment proceedings initiated against the Chief Justice
transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go
about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of
decidedly political questions. Because it is not at all the business of this Court to assert judicial
dominance over the other two great branches of the government. Rather, the raison d'etre of the
judiciary is to complement the discharge by the executive and legislative of their own powers to
bring about ultimately the beneficent effects of having founded and ordered our society upon the
rule of law.

It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said issue is as much at stake as is
that of the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time,
unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations
or speculations could be made to it, so long as it rendered judgment according to the law and
the facts. Why can it not now be trusted to wield judicial power in these petitions just because it
is the highest ranking magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official act as tested by
the limits set by the Constitution? Of course, there are rules on the inhibition of any member of
the judiciary from taking part in a case in specified instances. But to disqualify this entire
institution now from the suit at bar is to regard the Supreme Court as likely incapable of
impartiality when one of its members is a party to a case, which is simply a non sequitur.

No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of
its agents to secure respect for and obedience to its commands. Perhaps, there is no other
government branch or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning and ramifications
through its application to numerous cases especially of the high-profile kind in the annals of
jurisprudence. The Chief Justice is not above the law and neither is any other member of this
Court. But just because he is the Chief Justice does not imply that he gets to have less in law
than anybody else. The law is solicitous of every individual's rights irrespective of his station in
life.

The Filipino nation and its democratic institutions have no doubt been put to test once again by
this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has
resorted to no other than the Constitution in search for a solution to what many feared would
ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to
have found answers in our bedrock of legal principles, it is equally important that it went through
this crucible of a democratic process, if only to discover that it can resolve differences without
the use of force and aggression upon each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment

Proceedings which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario
G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on
October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.

SO ORDERED.

rancisco vs House of Representatives

Impeachment; Political Question; Judicial Branch

FRANCISCO VS. HOUSE OF REPRESENTATIVES

G.R. NO. 160261. November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO,
INC., ITS OFFICERS AND MEMBERS,petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE
VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M.
DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

Facts:

1. On 28 November 2001, the 12th Congress of the House of Representatives adopted and
approved the Rules of Procedure in Impeachment Proceedings, superseding the previous
House Impeachment Rules approved by the 11th Congress.
2. On 22 July 2002, the House of Representatives adopted a Resolution, which directed the
Committee on Justice “to conduct an investigation, in aid of legislation, on the manner of
disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary
Development Fund (JDF).
3. On 2 June 2003, former President Joseph E. Estrada filed an impeachment complaint (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices of the Supreme Court for “culpable violation of the Constitution, betrayal of the
public trust and other high crimes.” The complaint was endorsed by House Representatives,
and was referred to the House Committee on Justice on 5 August 2003 in accordance with
Section 3(2) of Article XI of the Constitution. The House Committee on Justice ruled on 13
October 2003 that the first impeachment complaint was “sufficient in form,” but voted to
dismiss the same on 22 October 2003 for being insufficient in substance.
4. The following day or on 23 October 2003, the second impeachment complaint was filed with
the Secretary General of the House by House Representatives against Chief Justice Hilario
G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-
mentioned House Resolution. The second impeachment complaint was accompanied by a
“Resolution of Endorsement/Impeachment” signed by at least 1/3 of all the Members of the
House of Representatives.
5. Various petitions for certiorari, prohibition, and mandamus were filed with the Supreme
Court against the House of Representatives, et. al., most of which petitions contend that the
filing of the second impeachment complaint is unconstitutional as it violates the provision of
Section 5 of Article XI of the Constitution that “[n]o impeachment proceedings shall be
initiated against the same official more than once within a period of one year.”

Issues:

1. Whether or not the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.
2. Whether or not Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the
12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the
Constitution.
3. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the
Constitution.

Rulings:

1. This issue is a non-justiciable political question which is beyond the scope of the judicial
power of the Supreme Court under Section 1, Article VIII of the Constitution.
1. Any discussion of this issue would require the Court to make a determination of what
constitutes an impeachable offense. Such a determination is a purely political question
which the Constitution has left to the sound discretion of the legislation. Such an intent
is clear from the deliberations of the Constitutional Commission.
2. Courts will not touch the issue of constitutionality unless it is truly unavoidable and is the
very lis mota or crux of the controversy.
2. The Rule of Impeachment adopted by the House of Congress is unconstitutional.
 1. Section 3 of Article XI provides that “The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section.” Clearly, its power to
promulgate its rules on impeachment is limited by the phrase “to effectively carry out the
purpose of this section.” Hence, these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively carry out. Moreover, Section 3
of Article XI clearly provides for other specific limitations on its power to make rules.
2. It is basic that all rules must not contravene the Constitution which is the fundamental
law. If as alleged Congress had absolute rule making power, then it would by necessary
implication have the power to alter or amend the meaning of the Constitution without
need of referendum.
3. It falls within the one year bar provided in the Constitution.
1. Having concluded that the initiation takes place by the act of filing of the impeachment
complaint and referral to the House Committee on Justice, the initial action taken
thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an
impeachment complaint has been initiated in the foregoing manner, another may not be
filed against the same official within a one year period following Article XI, Section 3(5)
of the Constitution.
2. Considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this
Court, on June 2, 2003 and referred to the House Committee on Justice on August 5,
2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro,
Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates
the constitutional prohibition against the initiation of impeachment proceedings against
the same impeachable officer within a one-year period.

Hence, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings

which were approved by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario
G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on
October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.
5 U.S. 137
14. Marbury v. Madison ()
Argued:
Decided:
___

 Syllabus
 Opinion, Marshall

Syllabus
The clerks of the Department of State of the United States may be called upon to give evidence
of transactions in the Department which are not of a confidential character.
The Secretary of State cannot be called upon as a witness to state transactions of a confidential
nature which may have occurred in his Department. But he may be called upon to give
testimony of circumstances which were not of that character.
Clerks in the Department of State were directed to be sworn, subject to objections to questions
upon confidential matters.
Some point of time must be taken when the power of the Executive over an officer, not
removable at his will, must cease. That point of time must be when the constitutional power of
appointment has been exercised. And the power has been exercised when the last act required
from the person possessing the power has been performed. This last act is the signature of the
commission.
If the act of livery be necessary to give validity to the commission of an officer, it has been
delivered when executed, and given to the Secretary of State for the purpose of being sealed,
recorded, and transmitted to the party.
In cases of commissions to public officers, the law orders the Secretary of State to record them.
When, therefore, they are signed and sealed, the order for their being recorded is given, and,
whether inserted inserted into the book or not, they are recorded.
When the heads of the departments of the Government are the political or confidential officers
of the Executive, merely to execute the will of the President, or rather to act in cases in which
the Executive possesses a constitutional or legal discretion, nothing can be more perfectly clear
than that their acts are only politically examinable. But where a specific duty is assigned by law,
and individual rights depend upon the performance of that duty, it seems equally clear that the
individual who considers himself injured has a right to resort to the laws of his country for a
remedy.
The President of the United States, by signing the commission, appointed Mr. Marbury a justice
of the peace for the County of Washington, in the District of Columbia, and the seal of the
United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of
the signature, and of the completion of the appointment; and the appointment conferred on him
a legal right to the office for the space of five years. Having this legal right to the office, he has a
consequent right to the commission, a refusal to deliver which is a plain violation of that right for
which the laws of the country afford him a remedy.
To render a mandamus a proper remedy, the officer to whom it is directed must be one to
whom, on legal principles, such writ must be directed, and the person applying for it must be
without any other specific remedy.
Where a commission to a public officer has been made out, signed, and sealed, and is withheld
from the person entitled to it, an action of detinue for the commission against the Secretary of
State who refuses to deliver it is not the proper remedy, as the judgment in detinue is for the
thing itself, or its value. The value of a public office, not to be sold, is incapable of being
ascertained. It is a plain case for a mandamus, either to deliver the commission or a copy of it
from the record.
To enable the Court to issue a mandamus to compel the delivery of the commission of a public
office by the Secretary of State, it must be shown that it is an exercise of appellate jurisdiction,
or that it be necessary to enable them to exercise appellate jurisdiction.
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in
a cause already instituted, and does not create the cause.
The authority given to the Supreme Court by the act establishing the judicial system of the
United States to issue writs of mandamus to public officers appears not to be warranted by the
Constitution.
It is emphatically the duty of the Judicial Department to say what the law is. Those who apply
the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict
with each other, the Court must decide on the operation of each.
If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the
legislature, the Constitution, and not such ordinary act, must govern the case to which they both
apply.
At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and
William Harper, by their counsel,[p138] severally moved the court for a rule to James Madison,
Secretary of State of the United States, to show cause why a mandamus should not issue
commanding him to cause to be delivered to them respectively their several commissions as
justices of the peace in the District of Columbia. This motion was supported by affidavits of the
following facts: that notice of this motion had been given to Mr. Madison; that Mr. Adams, the
late President of the United States, nominated the applicants to the Senate for their advice and
consent to be appointed justices of the peace of the District of Columbia; that the Senate
advised and consented to the appointments; that commissions in due form were signed by the
said President appointing them justices, &c., and that the seal of the United States was in due
form affixed to the said commissions by the Secretary of State; that the applicants have
requested Mr. Madison to deliver them their said commissions, who has not complied with that
request; and that their said commissions are withheld from them; that the applicants have made
application to Mr. Madison as Secretary of State of the United States at his office, for
information whether the commissions were signed and sealed as aforesaid; that explicit and
satisfactory information has not been given in answer to that inquiry, either by the Secretary of
State or any officer in the Department of State; that application has been made to the secretary
of the Senate for a certificate of the nomination of the applicants, and of the advice and consent
of the Senate, who has declined giving such a certificate; whereupon a rule was made to show
cause on the fourth day of this term. This rule having been duly served,[p139]
Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court, and
were required to give evidence, objected to be sworn, alleging that they were clerks in the
Department of State, and not bound to disclose any facts relating to the business or
transactions of the office.
The court ordered the witnesses to be sworn, and their answers taken in writing, but informed
them that, when the questions were asked, they might state their objections to answering each
particular question, if they had any.
Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated in the
affidavits occurred, was called upon to give testimony. He objected to answering. The questions
were put in writing.
The court said there was nothing confidential required to be disclosed. If there had been, he
was not obliged to answer it, and if he thought anything was communicated to him
confidentially, he was not bound to disclose, nor was he obliged to state anything which would
criminate himself.
The questions argued by the counsel for the relators were, 1. Whether the Supreme Court can
award the writ of mandamus in any case. 2. Whether it will lie to a Secretary of State, in any
case whatever. 3. Whether, in the present case, the Court may award a mandamus to James
Madison, Secretary of State.

TOP

Opinion
MARSHALL, C.J., Opinion of the Court
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
At the last term, on the affidavits then read and filed with the clerk, a rule was granted in this
case requiring the Secretary of State to show cause why a mandamus[p154] should not issue
directing him to deliver to William Marbury his commission as a justice of the peace for the
county of Washington, in the District of Columbia.
No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of
this case, the novelty of some of its circumstances, and the real difficulty attending the points
which occur in it require a complete exposition of the principles on which the opinion to be given
by the Court is founded.
These principles have been, on the side of the applicant, very ably argued at the bar. In
rendering the opinion of the Court, there will be some departure in form, though not in
substance, from the points stated in that argument.
In the order in which the Court has viewed this subject, the following questions have been
considered and decided.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of his country afford him a
remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is:
1. Has the applicant a right to the commission he demands?
His right originates in an act of Congress passed in February, 1801, concerning the District of
Columbia.
After dividing the district into two counties, the eleventh section of this law enacts,
that there shall be appointed in and for each of the said counties such number of discreet
persons to be justices of the peace as the President of the United States shall, from time to
time, think expedient, to continue in office for five years.[p155]
It appears from the affidavits that, in compliance with this law, a commission for William Marbury
as a justice of peace for the County of Washington was signed by John Adams, then President
of the United States, after which the seal of the United States was affixed to it, but the
commission has never reached the person for whom it was made out.
In order to determine whether he is entitled to this commission, it becomes necessary to inquire
whether he has been appointed to the office. For if he has been appointed, the law continues
him in office for five years, and he is entitled to the possession of those evidences of office,
which, being completed, became his property.
The second section of the second article of the Constitution declares,
The President shall nominate, and, by and with the advice and consent of the Senate, shall
appoint ambassadors, other public ministers and consuls, and all other officers of the United
States, whose appointments are not otherwise provided for.
The third section declares, that "He shall commission all the officers of the United States."
An act of Congress directs the Secretary of State to keep the seal of the United States,
to make out and record, and affix the said seal to all civil commissions to officers of the
United States to be appointed by the President, by and with the consent of the Senate, or by
the President alone; provided that the said seal shall not be affixed to any commission before
the same shall have been signed by the President of the United States.
These are the clauses of the Constitution and laws of the United States which affect this part of
the case. They seem to contemplate three distinct operations:
1. The nomination. This is the sole act of the President, and is completely voluntary.
2. The appointment. This is also the act of the President, and is also a voluntary act, though it
can only be performed by and with the advice and consent of the Senate.[p156]
3. The commission. To grant a commission to a person appointed might perhaps be deemed a
duty enjoined by the Constitution. "He shall," says that instrument, "commission all the officers
of the United States."
The acts of appointing to office and commissioning the person appointed can scarcely be
considered as one and the same, since the power to perform them is given in two separate and
distinct sections of the Constitution. The distinction between the appointment and the
commission will be rendered more apparent by adverting to that provision in the second section
of the second article of the Constitution which authorises Congress
to vest by law the appointment of such inferior officers as they think proper in the President
alone, in the Courts of law, or in the heads of departments;
thus contemplating cases where the law may direct the President to commission an officer
appointed by the Courts or by the heads of departments. In such a case, to issue a commission
would be apparently a duty distinct from the appointment, the performance of which perhaps
could not legally be refused.
Although that clause of the Constitution which requires the President to commission all the
officers of the United States may never have been applied to officers appointed otherwise than
by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of
consequence, the constitutional distinction between the appointment to an office and the
commission of an officer who has been appointed remains the same as if in practice the
President had commissioned officers appointed by an authority other than his own.
It follows too from the existence of this distinction that, if an appointment was to be evidenced
by any public act other than the commission, the performance of such public act would create
the officer, and if he was not removable at the will of the President, would either give him a right
to his commission or enable him to perform the duties without it.
These observations are premised solely for the purpose of rendering more intelligible those
which apply more directly to the particular case under consideration.[p157]
This is an appointment made by the President, by and with the advice and consent of the
Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the
commission and the appointment seem inseparable, it being almost impossible to show an
appointment otherwise than by proving the existence of a commission; still, the commission is
not necessarily the appointment; though conclusive evidence of it.
But at what stage does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment, being the sole act of the
President, must be completely evidenced when it is shown that he has done everything to be
performed by him.
Should the commission, instead of being evidence of an appointment, even be considered as
constituting the appointment itself, still it would be made when the last act to be done by the
President was performed, or, at furthest, when the commission was complete.
The last act to be done by the President is the signature of the commission. He has then acted
on the advice and consent of the Senate to his own nomination. The time for deliberation has
then passed. He has decided. His judgment, on the advice and consent of the Senate
concurring with his nomination, has been made, and the officer is appointed. This appointment
is evidenced by an open, unequivocal act, and, being the last act required from the person
making it, necessarily excludes the idea of its being, so far as it respects the appointment, an
inchoate and incomplete transaction.
Some point of time must be taken when the power of the Executive over an officer, not
removable at his will, must cease. That point of time must be when the constitutional power of
appointment has been exercised. And this power has been exercised when the last act required
from the person possessing the power has been performed. This last act is the signature of the
commission. This idea seems to have prevailed with the Legislature when the act passed
converting the Department[p158] of Foreign Affairs into the Department of State. By that act, it
is enacted that the Secretary of State shall keep the seal of the United States,
and shall make out and record, and shall affix the said seal to all civil commissions to officers
of the United States, to be appointed by the President: . . . provided that the said seal shall
not be affixed to any commission before the same shall have been signed by the President of
the United States, nor to any other instrument or act without the special warrant of the
President therefor.
The signature is a warrant for affixing the great seal to the commission, and the great seal is
only to be affixed to an instrument which is complete. It attests, by an act supposed to be of
public notoriety, the verity of the Presidential signature.
It is never to be affixed till the commission is signed, because the signature, which gives force
and effect to the commission, is conclusive evidence that the appointment is made.
The commission being signed, the subsequent duty of the Secretary of State is prescribed by
law, and not to be guided by the will of the President. He is to affix the seal of the United States
to the commission, and is to record it.
This is not a proceeding which may be varied if the judgment of the Executive shall suggest one
more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued.
It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the
United States, bound to obey the laws. He acts, in this respect, as has been very properly
stated at the bar, under the authority of law, and not by the instructions of the President. It is a
ministerial act which the law enjoins on a particular officer for a particular purpose.
If it should be supposed that the solemnity of affixing the seal is necessary not only to the
validity of the commission, but even to the completion of an appointment, still, when the seal is
affixed, the appointment is made, and[p159] the commission is valid. No other solemnity is
required by law; no other act is to be performed on the part of government. All that the
Executive can do to invest the person with his office is done, and unless the appointment be
then made, the Executive cannot make one without the cooperation of others.
After searching anxiously for the principles on which a contrary opinion may be supported, none
has been found which appear of sufficient force to maintain the opposite doctrine.
Such as the imagination of the Court could suggest have been very deliberately examined, and
after allowing them all the weight which it appears possible to give them, they do not shake the
opinion which has been formed.
In considering this question, it has been conjectured that the commission may have been
assimilated to a deed to the validity of which delivery is essential.
This idea is founded on the supposition that the commission is not merely evidence of an
appointment, but is itself the actual appointment -- a supposition by no means unquestionable.
But, for the purpose of examining this objection fairly, let it be conceded that the principle
claimed for its support is established.
The appointment being, under the Constitution, to be made by the President personally, the
delivery of the deed of appointment, if necessary to its completion, must be made by the
President also. It is not necessary that the livery should be made personally to the grantee of
the office; it never is so made. The law would seem to contemplate that it should be made to the
Secretary of State, since it directs the secretary to affix the seal to the commission after it shall
have been signed by the President. If then the act of livery be necessary to give validity to the
commission, it has been delivered when executed and given to the Secretary for the purpose of
being sealed, recorded, and transmitted to the party.
But in all cases of letters patent, certain solemnities are required by law, which solemnities are
the evidences[p160] of the validity of the instrument. A formal delivery to the person is not
among them. In cases of commissions, the sign manual of the President and the seal of the
United States are those solemnities. This objection therefore does not touch the case.
It has also occurred as possible, and barely possible, that the transmission of the commission
and the acceptance thereof might be deemed necessary to complete the right of the plaintiff.
The transmission of the commission is a practice directed by convenience, but not by law. It
cannot therefore be necessary to constitute the appointment, which must precede it and which
is the mere act of the President. If the Executive required that every person appointed to an
office should himself take means to procure his commission, the appointment would not be the
less valid on that account. The appointment is the sole act of the President; the transmission of
the commission is the sole act of the officer to whom that duty is assigned, and may be
accelerated or retarded by circumstances which can have no influence on the appointment. A
commission is transmitted to a person already appointed, not to a person to be appointed or not,
as the letter enclosing the commission should happen to get into the post office and reach him
in safety, or to miscarry.
It may have some tendency to elucidate this point to inquire whether the possession of the
original commission be indispensably necessary to authorize a person appointed to any office to
perform the duties of that office. If it was necessary, then a loss of the commission would lose
the office. Not only negligence, but accident or fraud, fire or theft might deprive an individual of
his office. In such a case, I presume it could not be doubted but that a copy from the record of
the Office of the Secretary of State would be, to every intent and purpose, equal to the original.
The act of Congress has expressly made it so. To give that copy validity, it would not be
necessary to prove that the original had been transmitted and afterwards lost. The copy would
be complete evidence that the original had existed, and that the appointment had been made,
but not that the original had been transmitted. If indeed it should appear that[p161] the original
had been mislaid in the Office of State, that circumstance would not affect the operation of the
copy. When all the requisites have been performed which authorize a recording officer to record
any instrument whatever, and the order for that purpose has been given, the instrument is in law
considered as recorded, although the manual labour of inserting it in a book kept for that
purpose may not have been performed.
In the case of commissions, the law orders the Secretary of State to record them. When,
therefore, they are signed and sealed, the order for their being recorded is given, and, whether
inserted in the book or not, they are in law recorded.
A copy of this record is declared equal to the original, and the fees to be paid by a person
requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a
commission which has been recorded? Or can he refuse a copy thereof to a person demanding
it on the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of peace to proceed in the
performance of his duty, because it would, equally with the original, attest his appointment.
If the transmission of a commission be not considered as necessary to give validity to an
appointment, still less is its acceptance. The appointment is the sole act of the President; the
acceptance is the sole act of the officer, and is, in plain common sense, posterior to the
appointment. As he may resign, so may he refuse to accept; but neither the one nor the other is
capable of rendering the appointment a nonentity.
That this is the understanding of the government is apparent from the whole tenor of its conduct.
A commission bears date, and the salary of the officer commences from his appointment, not
from the transmission or acceptance of his commission. When a person appointed to any office
refuses to accept that office, the successor is nominated in the place of the person
who[p162] has declined to accept, and not in the place of the person who had been previously
in office and had created the original vacancy.
It is therefore decidedly the opinion of the Court that, when a commission has been signed by
the President, the appointment is made, and that the commission is complete when the seal of
the United States has been affixed to it by the Secretary of State.
Where an officer is removable at the will of the Executive, the circumstance which completes his
appointment is of no concern, because the act is at any time revocable, and the commission
may be arrested if still in the office. But when the officer is not removable at the will of the
Executive, the appointment is not revocable, and cannot be annulled. It has conferred legal
rights which cannot be resumed.
The discretion of the Executive is to be exercised until the appointment has been made. But
having once made the appointment, his power over the office is terminated in all cases, where
by law the officer is not removable by him. The right to the office is then in the person appointed,
and he has the absolute, unconditional power of accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the President and sealed by the
Secretary of State, was appointed, and as the law creating the office gave the officer a right to
hold for five years independent of the Executive, the appointment was not revocable, but vested
in the officer legal rights which are protected by the laws of his country.
To withhold the commission, therefore, is an act deemed by the Court not warranted by law, but
violative of a vested legal right.
This brings us to the second inquiry, which is:
2. If he has a right, and that right has been violated, do the laws of his country afford him a
remedy?[p163]
The very essence of civil liberty certainly consists in the right of every individual to claim the
protection of the laws whenever he receives an injury. One of the first duties of government is to
afford that protection. In Great Britain, the King himself is sued in the respectful form of a
petition, and he never fails to comply with the judgment of his court.
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a
remedy is afforded by mere operation of law.
"In all other cases," he says,
it is a general and indisputable rule that where there is a legal right, there is also a legal
remedy by suit or action at law whenever that right is invaded.
And afterwards, page 109 of the same volume, he says,
I am next to consider such injuries as are cognizable by the Courts of common law. And
herein I shall for the present only remark that all possible injuries whatsoever that did not fall
within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals are,
for that very reason, within the cognizance of the common law courts of justice, for it is a
settled and invariable principle in the laws of England that every right, when withheld, must
have a remedy, and every injury its proper redress.
The Government of the United States has been emphatically termed a government of laws, and
not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy
for the violation of a vested legal right.
If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar
character of the case.
It behooves us, then, to inquire whether there be in its composition any ingredient which shall
exempt from legal investigation or exclude the injured party from legal redress. In pursuing this
inquiry, the first question which presents itself is whether this can be arranged[p164] with that
class of cases which come under the description of damnum absque injuria -- a loss without an
injury.
This description of cases never has been considered, and, it is believed, never can be
considered, as comprehending offices of trust, of honour or of profit. The office of justice of
peace in the District of Columbia is such an office; it is therefore worthy of the attention and
guardianship of the laws. It has received that attention and guardianship. It has been created by
special act of Congress, and has been secured, so far as the laws can give security to the
person appointed to fill it, for five years. It is not then on account of the worthlessness of the
thing pursued that the injured party can be alleged to be without remedy.
Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be
considered as a mere political act belonging to the Executive department alone, for the
performance of which entire confidence is placed by our Constitution in the Supreme Executive,
and for any misconduct respecting which the injured individual has no remedy?
That there may be such cases is not to be questioned. but that every act of duty to be
performed in any of the great departments of government constitutes such a case is not to be
admitted.
By the act concerning invalids, passed in June, 1794, the Secretary at War is ordered to place
on the pension list all persons whose names are contained in a report previously made by him
to Congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it
to be contended that where the law, in precise terms, directs the performance of an act in which
an individual is interested, the law is incapable of securing obedience to its mandate? Is it on
account of the character of the person against whom the complaint is made? Is it to be
contended that the heads of departments are not amenable to the laws of their country?
Whatever the practice on particular occasions may be, the theory of this principle will certainly
never be maintained.[p165] No act of the Legislature confers so extraordinary a privilege, nor
can it derive countenance from the doctrines of the common law. After stating that personal
injury from the King to a subject is presumed to be impossible, Blackstone, Vol. III. p. 255, says,
but injuries to the rights of property can scarcely be committed by the Crown without the
intervention of its officers, for whom, the law, in matters of right, entertains no respect or
delicacy, but furnishes various methods of detecting the errors and misconduct of those
agents by whom the King has been deceived and induced to do a temporary injustice.
By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river,
the purchaser, on paying his purchase money, becomes completely entitled to the property
purchased, and, on producing to the Secretary of State the receipt of the treasurer upon a
certificate required by the law, the President of the United States is authorized to grant him a
patent. It is further enacted that all patents shall be countersigned by the Secretary of State, and
recorded in his office. If the Secretary of State should choose to withhold this patent, or, the
patent being lost, should refuse a copy of it, can it be imagined that the law furnishes to the
injured person no remedy?
It is not believed that any person whatever would attempt to maintain such a proposition.
It follows, then, that the question whether the legality of an act of the head of a department be
examinable in a court of justice or not must always depend on the nature of that act.
If some acts be examinable and others not, there must be some rule of law to guide the Court in
the exercise of its jurisdiction.
In some instances, there may be difficulty in applying the rule to particular cases; but there
cannot, it is believed, be much difficulty in laying down the rule.
By the Constitution of the United States, the President is invested with certain important political
powers, in the[p166] exercise of which he is to use his own discretion, and is accountable only
to his country in his political character and to his own conscience. To aid him in the performance
of these duties, he is authorized to appoint certain officers, who act by his authority and in
conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in
which executive discretion may be used, still there exists, and can exist, no power to control that
discretion. The subjects are political. They respect the nation, not individual rights, and, being
entrusted to the Executive, the decision of the Executive is conclusive. The application of this
remark will be perceived by adverting to the act of Congress for establishing the Department of
Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to
the will of the President. He is the mere organ by whom that will is communicated. The acts of
such an officer, as an officer, can never be examinable by the Courts.
But when the Legislature proceeds to impose on that officer other duties; when he is directed
peremptorily to perform certain acts; when the rights of individuals are dependent on the
performance of those acts; he is so far the officer of the law, is amenable to the laws for his
conduct, and cannot at his discretion, sport away the vested rights of others.
The conclusion from this reasoning is that, where the heads of departments are the political or
confidential agents of the Executive, merely to execute the will of the President, or rather to act
in cases in which the Executive possesses a constitutional or legal discretion, nothing can be
more perfectly clear than that their acts are only politically examinable. But where a specific duty
is assigned by law, and individual rights depend upon the performance of that duty, it seems
equally clear that the individual who considers himself injured has a right to resort to the laws of
his country for a remedy.
If this be the rule, let us inquire how it applies to the case under the consideration of the
Court.[p167]
The power of nominating to the Senate, and the power of appointing the person nominated, are
political powers, to be exercised by the President according to his own discretion. When he has
made an appointment, he has exercised his whole power, and his discretion has been
completely applied to the case. If, by law, the officer be removable at the will of the President,
then a new appointment may be immediately made, and the rights of the officer are terminated.
But as a fact which has existed cannot be made never to have existed, the appointment cannot
be annihilated, and consequently, if the officer is by law not removable at the will of the
President, the rights he has acquired are protected by the law, and are not resumable by the
President. They cannot be extinguished by Executive authority, and he has the privilege of
asserting them in like manner as if they had been derived from any other source.
The question whether a right has vested or not is, in its nature, judicial, and must be tried by the
judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate and
proceeded to act as one, in consequence of which a suit had been instituted against him in
which his defence had depended on his being a magistrate; the validity of his appointment must
have been determined by judicial authority.
So, if he conceives that, by virtue of his appointment, he has a legal right either to the
commission which has been made out for him or to a copy of that commission, it is equally a
question examinable in a court, and the decision of the Court upon it must depend on the
opinion entertained of his appointment.
That question has been discussed, and the opinion is that the latest point of time which can be
taken as that at which the appointment was complete and evidenced was when, after the
signature of the President, the seal of the United States was affixed to the commission.
It is then the opinion of the Court:
1. That, by signing the commission of Mr. Marbury, the President of the United States appointed
him a justice[p168] of peace for the County of Washington in the District of Columbia, and that
the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony
of the verity of the signature, and of the completion of the appointment, and that the
appointment conferred on him a legal right to the office for the space of five years.
2. That, having this legal title to the office, he has a consequent right to the commission, a
refusal to deliver which is a plain violation of that right, for which the laws of his country afford
him a remedy.
It remains to be inquired whether,
3. He is entitled to the remedy for which he applies. This depends on:
1. The nature of the writ applied for, and
2. The power of this court.
1. The nature of the writ.
Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be
a command issuing in the King's name from the Court of King's Bench, and directed to any
person, corporation, or inferior court of judicature within the King's dominions requiring them
to do some particular thing therein specified which appertains to their office and duty, and
which the Court of King's Bench has previously determined, or at least supposes, to be
consonant to right and justice.
Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al., states with much
precision and explicitness the cases in which this writ may be used.
"Whenever," says that very able judge,
there is a right to execute an office, perform a service, or exercise a franchise (more
especially if it be in a matter of public concern or attended with profit), and a person is kept
out of possession, or dispossessed of such right, and[p169] has no other specific legal
remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ
expresses, and upon reasons of public policy, to preserve peace, order and good
government.
In the same case, he says,
this writ ought to be used upon all occasions where the law has established no specific
remedy, and where in justice and good government there ought to be one.
In addition to the authorities now particularly cited, many others were relied on at the bar which
show how far the practice has conformed to the general doctrines that have been just quoted.
This writ, if awarded, would be directed to an officer of government, and its mandate to him
would be, to use the words of Blackstone,
to do a particular thing therein specified, which appertains to his office and duty and which the
Court has previously determined or at least supposes to be consonant to right and justice.
Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of
public concern, and is kept out of possession of that right.
These circumstances certainly concur in this case.
Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must be
one to whom, on legal principles, such writ may be directed, and the person applying for it must
be without any other specific and legal remedy.
1. With respect to the officer to whom it would be directed. The intimate political relation,
subsisting between the President of the United States and the heads of departments,
necessarily renders any legal investigation of the acts of one of those high officers peculiarly
irksome, as well as delicate, and excites some hesitation with respect to the propriety of
entering into such investigation. Impressions are often received without much reflection or
examination, and it is not wonderful that, in such a case as this, the assertion by an individual of
his legal claims in a court of justice, to which claims it is the duty of that court to attend, should,
at first view, be considered[p170] by some as an attempt to intrude into the cabinet and to
intermeddle with the prerogatives of the Executive.
It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An
extravagance so absurd and excessive could not have been entertained for a moment. The
province of the Court is solely to decide on the rights of individuals, not to inquire how the
Executive or Executive officers perform duties in which they have a discretion. Questions, in
their nature political or which are, by the Constitution and laws, submitted to the Executive, can
never be made in this court.
But, if this be not such a question; if so far from being an intrusion into the secrets of the
cabinet, it respects a paper which, according to law, is upon record, and to a copy of which the
law gives a right, on the payment of ten cents; if it be no intermeddling with a subject over which
the Executive can be considered as having exercised any control; what is there in the exalted
station of the officer which shall bar a citizen from asserting in a court of justice his legal rights,
or shall forbid a court to listen to the claim or to issue a mandamus directing the performance of
a duty not depending on Executive discretion, but on particular acts of Congress and the
general principles of law?
If one of the heads of departments commits any illegal act under colour of his office by which an
individual sustains an injury, it cannot be pretended that his office alone exempts him from being
sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law.
How then can his office exempt him from this particular mode of deciding on the legality of his
conduct if the case be such a case as would, were any other individual the party complained of,
authorize the process?
It is not by the office of the person to whom the writ is directed, but the nature of the thing to be
done, that the propriety or impropriety of issuing a mandamus is to be determined. Where the
head of a department acts in a case in which Executive discretion is to be exercised, in which
he is the mere organ of Executive will, it is[p171] again repeated, that any application to a court
to control, in any respect, his conduct, would be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in
the performance of which he is not placed under the particular direction of the President, and
the performance of which the President cannot lawfully forbid, and therefore is never presumed
to have forbidden -- as for example, to record a commission, or a patent for land, which has
received all the legal solemnities; or to give a copy of such record -- in such cases, it is not
perceived on what ground the Courts of the country are further excused from the duty of giving
judgment that right to be done to an injured individual than if the same services were to be
performed by a person not the head of a department.
This opinion seems not now for the first time to be taken up in this country.
It must be well recollected that, in 1792, an act passed, directing the secretary at war to place
on the pension list such disabled officers and soldiers as should be reported to him by the
Circuit Courts, which act, so far as the duty was imposed on the Courts, was deemed
unconstitutional; but some of the judges, thinking that the law might be executed by them in the
character of commissioners, proceeded to act and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed, and a different system
was established; but the question whether those persons who had been reported by the judges,
as commissioners, were entitled, in consequence of that report, to be placed on the pension list
was a legal question, properly determinable in the Courts, although the act of placing such
persons on the list was to be performed by the head of a department.
That this question might be properly settled, Congress passed an act in February, 1793, making
it the duty of the Secretary of War, in conjunction with the Attorney General, to take such
measures as might be necessary to obtain an adjudication of the Supreme Court of the
United[p172] States on the validity of any such rights, claimed under the act aforesaid.
After the passage of this act, a mandamus was moved for, to be directed to the Secretary of
War, commanding him to place on the pension list a person stating himself to be on the report of
the judges.
There is, therefore, much reason to believe that this mode of trying the legal right of the
complainant was deemed by the head of a department, and by the highest law officer of the
United States, the most proper which could be selected for the purpose.
When the subject was brought before the Court, the decision was not that a mandamus would
not lie to the head of a department directing him to perform an act enjoined by law, in the
performance of which an individual had a vested interest, but that a mandamus ought not to
issue in that case -- the decision necessarily to be made if the report of the commissioners did
not confer on the applicant a legal right.
The judgment in that case is understood to have decided the merits of all claims of that
description, and the persons, on the report of the commissioners, found it necessary to pursue
the mode prescribed by the law subsequent to that which had been deemed unconstitutional in
order to place themselves on the pension list.
The doctrine, therefore, now advanced is by no means a novel one.
It is true that the mandamus now moved for is not for the performance of an act expressly
enjoined by statute.
It is to deliver a commission, on which subjects the acts of Congress are silent. This difference
is not considered as affecting the case. It has already been stated that the applicant has, to that
commission, a vested legal right of which the Executive cannot deprive him. He has been
appointed to an office from which he is not removable at the will of the Executive, and, being
so[p173] appointed, he has a right to the commission which the Secretary has received from
the President for his use. The act of Congress does not, indeed, order the Secretary of State to
send it to him, but it is placed in his hands for the person entitled to it, and cannot be more
lawfully withheld by him than by another person.
It was at first doubted whether the action of detinue was not a specific legal remedy for the
commission which has been withheld from Mr. Marbury, in which case a mandamus would be
improper. But this doubt has yielded to the consideration that the judgment in detinue is for the
thing itself, or its value. The value of a public office not to be sold is incapable of being
ascertained, and the applicant has a right to the office itself, or to nothing. He will obtain the
office by obtaining the commission or a copy of it from the record.
This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from
the record, and it only remains to be inquired:
Whether it can issue from this Court.
The act to establish the judicial courts of the United States authorizes the Supreme Court
to issue writs of mandamus, in cases warranted by the principles and usages of law, to any
courts appointed, or persons holding office, under the authority of the United States.
The Secretary of State, being a person, holding an office under the authority of the United
States, is precisely within the letter of the description, and if this Court is not authorized to issue
a writ of mandamus to such an officer, it must be because the law is unconstitutional, and
therefore absolutely incapable of conferring the authority and assigning the duties which its
words purport to confer and assign.
The Constitution vests the whole judicial power of the United States in one Supreme Court, and
such inferior courts as Congress shall, from time to time, ordain and establish. This power is
expressly extended to all cases arising under the laws of the United States; and consequently,
in some form, may be exercised over the present[p174] case, because the right claimed is
given by a law of the United States.
In the distribution of this power. it is declared that
 The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other
public ministers and consuls, and those in which a state shall be a party. In all other cases,
the Supreme Court shall have appellate jurisdiction.
It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and
inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court
contains no negative or restrictive words, the power remains to the Legislature to assign original
jurisdiction to that Court in other cases than those specified in the article which has been
recited, provided those cases belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the Legislature to apportion the judicial
power between the Supreme and inferior courts according to the will of that body, it would
certainly have been useless to have proceeded further than to have defined the judicial power
and the tribunals in which it should be vested. The subsequent part of the section is mere
surplusage -- is entirely without meaning -- if such is to be the construction. If Congress remains
at liberty to give this court appellate jurisdiction where the Constitution has declared their
jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall
be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed,
and, in this case, a negative or exclusive sense must be given to them or they have no
operation at all.
It cannot be presumed that any clause in the Constitution is intended to be without effect, and
therefore such construction is inadmissible unless the words require it.[p175]
If the solicitude of the Convention respecting our peace with foreign powers induced a provision
that the Supreme Court should take original jurisdiction in cases which might be supposed to
affect them, yet the clause would have proceeded no further than to provide for such cases if no
further restriction on the powers of Congress had been intended. That they should have
appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no
restriction unless the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system divides it into one Supreme and
so many inferior courts as the Legislature may ordain and establish, then enumerates its
powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court
by declaring the cases in which it shall take original jurisdiction, and that in others it shall take
appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its
jurisdiction is original, and not appellate; in the other, it is appellate, and not original. ,If any
other construction would render the clause inoperative, that is an additional reason for rejecting
such other construction, and for adhering to the obvious meaning.
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate
jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of
forms, and that, if it be the will of the Legislature that a mandamus should be used for that
purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not
original.
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in
a cause already instituted, and does not create that case. Although, therefore, a mandamus
may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in
effect, the same as to sustain an original action for that paper, and therefore seems not to
belong to[p176] appellate, but to original jurisdiction. Neither is it necessary in such a case as
this to enable the Court to exercise its appellate jurisdiction.
The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of
the United States to issue writs of mandamus to public officers appears not to be warranted by
the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be
exercised.
The question whether an act repugnant to the Constitution can become the law of the land is a
question deeply interesting to the United States, but, happily, not of an intricacy proportioned to
its interest. It seems only necessary to recognise certain principles, supposed to have been long
and well established, to decide it.
That the people have an original right to establish for their future government such principles as,
in their opinion, shall most conduce to their own happiness is the basis on which the whole
American fabric has been erected. The exercise of this original right is a very great exertion; nor
can it nor ought it to be frequently repeated. The principles, therefore, so established are
deemed fundamental. And as the authority from which they proceed, is supreme, and can
seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments
their respective powers. It may either stop here or establish certain limits not to be transcended
by those departments.
The Government of the United States is of the latter description. The powers of the Legislature
are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution
is written. To what purpose are powers limited, and to what purpose is that limitation committed
to writing, if these limits may at any time be passed by those intended to be restrained? The
distinction between a government with limited and unlimited powers is abolished if those limits
do not confine the persons on whom they are imposed, and if acts prohibited[p177] and acts
allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution
controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by
an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior,
paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative
acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is
not law; if the latter part be true, then written Constitutions are absurd attempts on the part of
the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the
fundamental and paramount law of the nation, and consequently the theory of every such
government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be
considered by this Court as one of the fundamental principles of our society. It is not, therefore,
to be lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its
invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not
law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact
what was established in theory, and would seem, at first view, an absurdity too gross to be
insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the law is. Those
who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two
laws conflict with each other, the Courts must decide on the operation of each.[p178]
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a
particular case, so that the Court must either decide that case conformably to the law,
disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court
must determine which of these conflicting rules governs the case. This is of the very essence of
judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any
ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the
case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a
paramount law are reduced to the necessity of maintaining that courts must close their eyes on
the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that
an act which, according to the principles and theory of our government, is entirely void, is yet, in
practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly
forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be
giving to the Legislature a practical and real omnipotence with the same breath which professes
to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits
may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political
institutions -- a written Constitution, would of itself be sufficient, in America where written
Constitutions have been viewed with so much reverence, for rejecting the construction. But the
peculiar expressions of the Constitution of the United States furnish additional arguments in
favour of its rejection.
The judicial power of the United States is extended to all cases arising under the
Constitution.[p179]
Could it be the intention of those who gave this power to say that, in using it, the Constitution
should not be looked into? That a case arising under the Constitution should be decided without
examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the judges. And if they can open it
at all, what part of it are they forbidden to read or to obey?
There are many other parts of the Constitution which serve to illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a
duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought
judgment to be rendered in such a case? ought the judges to close their eyes on the
Constitution, and only see the law?
The Constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it, must the
Court condemn to death those victims whom the Constitution endeavours to preserve?
"No person," says the Constitution, "shall be convicted of treason unless on the testimony of two
witnesses to the same overt act, or on confession in open court."
Here. the language of the Constitution is addressed especially to the Courts. It prescribes,
directly for them, a rule of evidence not to be departed from. If the Legislature should change
that rule, and declare one witness, or a confession out of court, sufficient for conviction, must
the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is apparent that the framers of
the Constitution[p180] contemplated that instrument as a rule for the government of courts, as
well as of the Legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies
in an especial manner to their conduct in their official character. How immoral to impose it on
them if they were to be used as the instruments, and the knowing instruments, for violating what
they swear to support!
The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative
opinion on this subject. It is in these words:
I do solemnly swear that I will administer justice without respect to persons, and do equal
right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties
 incumbent on me as according to the best of my abilities and understanding, agreeably to the
Constitution and laws of the United States.
Why does a judge swear to discharge his duties agreeably to the Constitution of the United
States if that Constitution forms no rule for his government? if it is closed upon him and cannot
be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe or to take
this oath becomes equally a crime.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of
the land, the Constitution itself is first mentioned, and not the laws of the United States
generally, but those only which shall be made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written Constitutions, that a law
repugnant to the Constitution is void, and that courts, as well as other departments, are bound
by that instrument.
The rule must be discharged.