G. R. No.

45685, November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS AND THE HONGKONG & SHANGHAI BANKING
CORPORATION, PETITIONERS, VS. JOSE O. VERA, JUDGE AD INTERIM OF THE COURT OF
FIRST INSTANCE OF MANILA, AND MARIANO CIR UNJIENG, RESPONDENTS.

DECISION

LAUREL, J.:

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

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

The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on
October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case
as private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both in
the length of time spent by the court as well as in the volume of the testimony and the bulk of exhibits
presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment of conviction
sentencing the defendant Mariano Cu Unjieng to an indeterminate penalty ranging from four years and
two months of prision correccional to eight years of 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 to the Insular Probation Office which recommended denial
of the same on June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh branch, Judge
Jose O. Vera presiding, set the petition for hearing on April 5, 1937.

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

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

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

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

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

On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as
amici curiae aforementioned, asking that a date be set for the hearing of the same and that, at all events,
said motion should be denied with respect 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 bef6re the trial court was accordingly suspended upon the issuance of a
temporary restraining order by this court on August 21, 1937.

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

I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under
probation for the following reasons:
(1) Under section 11 of Act No. 4221, the said Act of the Philippine Legislature is made to apply only to
the provinces of the Philippines; it nowhere states that it is to be made applicable to chartered cities like
the City of Manila.

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

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

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

(1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or
denying of applications for probation.

(2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it
became final and executory at the moment of its rendition.

(3) No right of appeal exists in such cases.

(4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the
same.

III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for
which he was convicted by final judgment of this court, which finding is not only presumptuous but without
foundation in fact and in law, and is furthermore in contempt of this court and a violation of the
respondent's oath of office as ad interim judge of first instance.

IV. Because the respondent judge has violated and continues to violate his duty, which
became/imperative when he issued his order of June 28, 1937, denying the application for probation, to
commit his co-respondent to jail.
Petitioners also aver that they have no other plain, speedy and adequate remedy in the ordinary course of
law.

In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking
Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a system of
probation for persons eighteen years of age or over who are convicted of crime, is unconstitutional
because it is violative of section 1, subsection (1), Article III, of, the Constitution of the Philippines
guaranteeing equal protection of the laws because it confers upon the provincial board of each province
the absolute discretion to make said law operative or 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 Courts of First Instance of the different provinces without uniformity. In another
supplementary petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the
petitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by the
other petitioner regarding the constitutionality of Act No. 4221, and in the oral argument held on Qctober
6, 1937, further elaborated on the theory that probation is a form of reprieve and therefore Act No. 4221 is
an encroachment oh the exclusive power of the Chief Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221 not
only encroaches upon the pardoning power of the executive, but also constitutes an unwarranted
delegation of legislative power and a denial of the equal protection of the laws. On Octooer 9, 1937, two
memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People;
of the Philippine Islands, and by counsel for the other petitioner, the Hongkong and Shanghai Banking
Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other
contending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented.
Another joint memorandum was filed by the same; persons on the same day, October 9, 1937, alleging
that Act No. 4221 is unconstitutional because it denies the equal protection of the laws and constitutes an
unlawfull delegation of legislative power and, further, that the whole Act is void; that the Commonwealth is
not estopped from questioning the validity of its laws; that the private prosecution may intervene in
probation proceedings and may attack the probation law as unconstitutional; and that this court may pass
upon the constitutional question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in their oral argument and
memorandums, challenge each and every one of the foregoing proposition raised by the petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of
certiorari or of prohibition.
(2) 'That the aforesaid petition is premature because the remedy sought by the petitioners is the very
same remedy prayed for by them before the trial court and was still pending resolution before the trial
court when the present petition was filed with this court.

(3) That the petitioners having themselves raised the Question as to the execution of judgment before the
trial court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory that its
resolution denying probation is unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to
decide the question as to whether or not execution will lie, this court nevertheless cannot exercise said
jurisdiction while the Court of First Instance has assumed jurisdiction over the same upon motion of
herein petitioners themselves.

(5) that the procedure followed by the herein petitioners in seeking to deprive the trial court of "its
jurisdiction over the case and elevate the proceedings to this court, should not be tolerated because it
impairs the authority and dignity of the trial court which court while sitting in probation cases is "a court of
limited jurisdiction but of great dignity."

(6) That under the supposition that this court has jurisdiction to resolve the question submitted to and
pending resolution by the trial court, the present action would not lie because the resolution of the trial
court denying probation is appealable; for although the Probation Law does not specifically provide that
an applicant for probation may appeal from a resolution of the Court of First Instance denying probation,
still it is a general rule in this jurisdiction that a final order, resolution or decision of an inferior court is
appealable to the superior court.

(7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being
appealable, the same had not yet become final and executory for the reason that the said respondent had
filed an alternative motion for reconsideration and new trial within the requisite period of fifteen days,
which motion the trial court was not able to resolve in view of the restraining order improvidently and
erroneously issued by this court.

(8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court
denying probation is not final and unappealable when he presented his answer to the motion for
reconsideration and agreed to the postponement of the hearing of the said motion.

(9) That under the supposition that the order of the trial court denying probation is not appealable, it is
incumbent upon the accused to file an action for the issuance of the writ of certiorari with mandamus, it
appearing that the trial court, although it believed that the accused was entitled to probation, nevertheless
denied probation for fear of criticism because the accused is a rich man; and that, before a petition for
certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon
the petitioner to file a motion for reconsideration specifying the error committed so that the trial court
could have an opportunity to correct or cure the same.
(10) That on the hypothesis that the resolution of the trial court is not appealable, the trial court retains its
jurisdiction within a reasonable time to correct or modify it in accordance with law and justice; that this
power to alter or modify an order or resolution is inherent in the courts and may be exercised either motu
proprio or upon petition of the proper party, the petition in the latter case taking the form of a motion for
reconsideration.

(11) That on the hypothesis that the resolution of the trial court is appealable as respondents allege, said
court cannot order execution of the same while it is on appeal, for then the appeal would not be availing
because the doors of. probation would be closed from the moment the accused commences to serve his
sentence (Act No:. 4221, sec. 1; U. S. vs. Cook, 19 Fed. [2d], 827).

In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221
is constitutional because, contrary to the allegations of the petitioners, it does not constitute an undue
delegation of legislative power, does not infringe the equal protection clause of the Constitution, and does
not encroach upon the pardoning power of the Executive. In. an additional memorandum filed on the
same date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free from
constitutional objections and contend, in addition, that the private prosecution may not intervene in
probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the
Solicitor-General are estopped from questioning the validity of the Act; that the validity of the Act cannot
be attacked for the first time before this court; that prohibition is unavailable; and that, in any event,
section 11 of Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondent
Mariano Cu Unijeng 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 the said application assumed the task not only of considering the merits of the application, but
of passing upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by this
court. (G. R. No. 41200.) Probation implies guilt by final judgment. While a probation court hearing a
probation case may look into the circumstances attending the commission of the offense, this does not
authorize it to reverse the findings and conclusions of this court, either directly or indirectly, especially
where from its own admission reliance was merely had on the printed briefs, averments, and pleadings of
the parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 33a, 337), and
reiterated in subsequent cases, "if each and every Court of First Instance could enjoy the privilege of
overruling decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would
result." A becoming modesty of inferior courts demands conscious realization of the position that they
occupy in the interrelation and operation of the integrated judicial system of the nation.

After threshing carefully the multifarious issues raised by both counsel for the petitioners and the
respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been properly
raised in these proceedings; and (2) in the affirmative, whether or not said Act is constitutional.
Consideration of these issues will involve a discussion of certain incidental questions raised by the
parties.

To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is
a well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts
unless that question is properly raised and presented in appropriate cases and is necessary to a
determination of the case; i. e., the issue of constitutionality mu3t 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 ([1927J, 50 Phil., 259 [affirmed in Springer vs. Government of the
Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the legislature
unconstitutional in an action of quo warranto brought in the name of the Government of the Philippines. It
has also been held that the constitutionality of a statute may be questioned in habeas corpus proceedings
(12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the
contrary; on an application for injunction to restrain action under the challenged statute (mandatory, see
Cruz vs. Youngberg [1931], 56 Phil., 234) ; and even on an application for preliminary injunction where
the determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.)
The same may be said as regards prohibition and certiorari. (Yu Cong Eng vs. Trinidad [1925], 47 Phil.,
385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280;
81 Pac, 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu
Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an
original action for certiorari and prohibition. The constitutionality of Act No. 2972, popularly known as the
Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue was met
squarely by the respondents in a demurrer. A point was raised "relating to the propriety of the
constitutional question being decided in original proceedings in prohibition." This court decided to take up
the constitutional question and, with two justices dissenting, held that Act No. 2972 was constitutional.
The case was elevated on writ of certiorari to the Supreme Court of the United States which reversed the
judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the
question of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said:

"By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is
granted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons,
and original jurisdiction over courts of first instance, when such courts are exercising functions without or
in excess of their jurisdiction. It has been held by that court that the question of the validity of a criminal
statute' must usually be raised by a defendant in the trial court and be carried regularly in review to the
Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Eosario, 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 of the act's validity
promptly before it and decide it in the interest of the orderly administration of justice. The court relied by
analogy upon the cases of Ex parte Young (209 U. S., 123; 52Law. ed., 714; 13 L. R. A. [N. S.], 932; 28
Sup. Ct. Rep., 441; 14 Ann. Cas., 764; Traux vs. Raidh, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D,
545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755;
L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas., 1918A, 1024). Although objection to the
jurisdiction was raised by demurrer to the petition, this is now disclaimed on behalf of the respondents,
and both parties ask a decision on the merits. In view of broad powers in prohibition granted to that court
under the Island Code, we acquiesce in the desire of the parties."

The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and
directed to an inferior court, for the purpose of, preventing the inferior tribunal from usurping a jurisdiction
with which it is not legally vested.) (High, Extraordinary Legal Remedies, p. 705.) The general rule,
although there is a conflict in the cases, is that the Writ of prohibition will not lie where the inferior court
has jurisdiction independent of the statute the constitutionality of which is questioned, because in such
cases the inferior court having jurisdiction may itself determine the constitutionality of the statute, and its
decision may be subject to review, and consequently the complainant in such cases ordinarily has
adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal
derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of
prohibition from enforcing that statute. (50 C. J., 670. Ex parte Roundtree [1874], 51 Ala., 42; In re
Macfarland, 30 App. [D. C], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs.
Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. EL, 185; Arnold vs. Shields
[1837], 5 Dana, 19; 30 Am. Dec, 669.)

Courts of First Instance sitting in probation proceedings derive their jurisdiction solely from Act No. 4221
which prescribes in detailed manner the procedure for granting probation to accused persons after their
conviction has become final and before they have served their sentence. It is true that at common law the
authority of the courts to suspend temporarily the execution of a sentence is recognized and, according to
a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio, the power is
inherent in the courts. (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel
[1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Sessions [1894], 141 N[. Y.,
288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States ([1916],
242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the
Supreme Court of the United States expressed the opinion that under the common law the power of the
court was limited to temporary suspension, and brushed aside the contention as to inherent judicial power
saying, through Chief Justice White:

"Indisputably under our constitutional system the right to try offenses against the criminal laws and upon
conviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, in
exerting the powers vested in them on such subject, courts inherently possess ample right to exercise
reasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these
concessions afford no ground for the contention as to power here made, since it must rest upon the
proposition that the power to enforce begets inherently a discretion to permanently refuse to do so. And
the effect of the proposition urged upon the distribution of powers made by the Constitution will become
apparent when it is observed that indisputable also is it that the authority to define and fix the punishment
for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose
of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial
authority, and that the right to relieve from the punishment, fixed by law and ascertained according' to the
methods by it provided belongs to the executive department."

Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First
Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the
power to suspend the execution of sentences pronounced in criminal cases is not inherent in the judicial
function. "All are agreed", he said, "that in the absence of statutory authority, it does not lie within the
power of the courts to grant .such suspensions." (at p. 278.) Both petitioners and respondents are correct,
therefore, when they argue that a Court of First Instance sitting in probation proceedings is a court of
limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the
Philippine Legislature.

It is, of course, true that the constitutionality of a statute will not be considered on application for
prohibition where the question has not been properly brought to the attention of the court by objection of
some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo.,
120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue has been
squarely presented not only before this court by the petitioners but also before the trial court by the
private prosecution. The respondent, Hon. Jose O. Vera, however, acting as judge of the court below,
declined to pass upon the question on the ground that the private prosecutor, not being a party whose
rights are affected by the statute, may not raise said question. The respondent judge cited Cooley on
Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and Mc Glue 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 reiterate this view. The argument is advanced that the
private prosecution has no personality to appear in the hearing of the application for probation of
defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and
hence the issue of constitutionality was not properly raised in the lower court. Although, as a general rule,
only those who are parties to a suit may question the constitutionality of a statute involved in a judicial
decision, it has been held that since the decree pronounced by a court without jurisdiction is void, where
the jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality
will be considered on its being brought to the attention of the court by persons interested in the effect to
be given the statute. (12 C J., sec. 184, p. 766.) And, even if we were to concede that the issue was not
properly raised in the court below by the proper party, it does not follow that the issue may not be here
raised in an original action of certiorari and prohibition. It is true that, as a general rule, the question of
constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily
it may not be raised at the trial, and if not raised in the trial court, it will not be considered on appeal. (12
C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we
must state that the general rule admits of exceptions. Courts, in the exercise of sound discretion, may
determine the time when a question affecting the constitutionality of a statute should be presented. (In re
Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of
authorities, it is said that the question may be raised for the first time at any stage of the proceedings,
either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the
duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it
appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs.
Maysville & B. S. R. Co.[1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co.
[1908], 214 Mo., 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W.,
913.) And it has been held that a constitutional question will be considered by an appellate court at any
time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S.,
870) As to the power of this court to consider the constitutional question raised for the first time before
this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs.
Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented
by the private prosecution, is not the proper party to raise the constitutional question here—a point we do
not now have to decide—we are of the opinion that the People of the Philippines, represented by the
Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings.
The unchallenged rule is that the person who impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the
Philippines, in whose name the present action is brought, has a substantial interest in having it set aside.
Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule
that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs.
Springer ([1927], 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277
U. S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73
Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation,
alleging that the statute under which the respondents base their right was unconstitutional because it
impaired the obligation of contracts. The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through
Champlin, J.:

"* * * The idea seems to be that the people are estopped from questioning the validity of a law enacted by
their representatives; that to an accusation by the people of Michigan of usurpation upon their
government, a statute enacted by the people of Michigan is an adequate answer. The last proposition is
true, but, if the statute relied on in justification is unconstitutional, it is a statute only in form, and lacks the
force of law, and is of no more saving effect to justify action under it than if it had never been enacted.
The constitution is the supreme law, and to its behests the courts, the legislature, and the people must
bow. * * * The legislature and the respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party affected by
an unconstitutional act of the legislature: 'The people have a deep and vested interest in maintaining all
the constitutional limitations upon the exercise of legislative powers.' (Allen vs. Mckeen, 1 Sum., 314.)"

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac, 38, 40), an original action (mandamus) was brought
by the Attorney-General of Kansas to test the 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, 113]'). (State vs. Lawrence, 80 Kan., 707; 103 Pac, 839.)

"Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county
attorney, may exercise his best judgment as to what sort of action he will bring to have the matter
determined, either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac,
1068; 49 L. K. 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. By. Co. [1917], 197 S. W.,
1006; State vs. S. H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S.,
91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State
[1917], 221 N. Y., 295; 116 N. E., 1020; Bush vs. State [1918], 187 Ind., 339; 119 N. E., 417; State vs.
Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Louisiana
said:

"It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of
enforcing the laws, has no right to plead that a law is unconstitutional. In support of the argument, three
decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La.
Ann., 1222) ; State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 La. Ann., 156;
6 So., 592) ; and State ex rel. Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L.
K. A., 512). These decisions do not forbid a district attorney to plead that a statute is unconstitutional if he
finds it in conflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge,
etc., the ruling was that the judge should not, merely because he believed a certain statute to be
unconstitutional, forbid the district attorney to file a bill of information charging a person with a violation of
the statute. In other words, a judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it must be decided in order to determine
the right of a party litigant. State ex rel. Nicholls, Governor, etc., is authority for the proposition merely that
an officer on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon the
ground that he considers the statute unconstitutional, and hence in enforcing the statute he is immune
from responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for the
proposition merely that executive officers, e. g., the state auditor and state treasurer, should not decline to
perform ministerial duties imposed upon them by a statute, on the ground that they believe the statute is
unconstitutional.

"It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the
Constitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other,
or one which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his
duty to enforce the other; and, in order to do so, he is compelled to submit to the court, by way of a plea,
that one of the statutes is unconstitutional. If it were not so, the power of the Legislature would be free
from constitutional limitations in the enactment of criminal laws."

The respondents do not seem to doubt seriously the correctness of the general proposition that the state
may impugn the validity of its laws. They have not cited any authority running clearly in the opposite
direction. In fact, they appear to have proceeded on the assumption that the rule as stated is sound but
that it has no application in the present case, nor may it be invoked by the City Fiscal in behalf of the
People of the Philippines, one of the petitioners herein, the principal reasons being that the validity of the
Probation Act cannot be attacked for the first time before this court, that the City Fiscal is estopped from
attacking the validity of the Act and, not being authorized to enforce laws outside of the City of Manila,
cannot challenge the validity of the Act in its application outside said city. (Additional memorandum of
respondents, October 23, 1937, pp. 8, 10, 17 and 23.)

The mere fact that the Probation Act has been repeatedly relied upon in the past and all that time has not
been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly
regarded by him as constitutional, is no reason for considering the People of the Philippines estopped
from now assailing its validity. For courts will pass upon a constitutional question only when presented
before it in bona fide cases for determination, and the fact that the question has not been raised before is
not a valid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying
upon the statute and treating it as valid until it is held void by the courts in proper cases.

It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to
the resolution of the instant .case. For, "* * * while the court will meet the question with firmness, where its
decision is indispensable, it is the part of wisdom, and a just respect for the legislature, renders it proper,
to waive it, if the case in which it arises, can be decided on other points." (Ex parte Randolph [1833], 20
F. Cas. No. 11,558; 2 Brock.. 447. Vide, also, Hoover vs. Wood [1857], 9 Ind., 286, 287.) It has been held
that the determination of a constitutional question is necessary whenever it is essential to the decision of
the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y.
Supp., 454 [aff. 212 N. Y., 1; 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U. S., 272]; Hesse
vs. Ledesma, 7 Porto Rico Fed., 520 Cowan vs. Doddridge, 22 Gratt [63 Va.], 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. Niagara F. Ins.
Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N. E., 306). There is no doubt that
the respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed.

Apart from the foregoing considerations, this court will also take cognizance of the fact that the Probation
Act is a new addition to our statute books and its validity has never before been passed upon by the
courts; that many persons accused and convicted of crime in the City of Manila have applied for
probation; that some of them are already on probation; that more people will likely take advantage of the
Probation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period of
about four years since his first conviction. All await the decision of this court on the constitutional
question. Considering, therefore, the importance which the instant case has assumed and to prevent
multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be
now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. od., 1059.
See 6 K. 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. E. A. [N. S.], 489;
Dimayuga and Pajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng O. Trinidad, supra, an
analogous situation confronted us. We said: "Inasmuch as the property and personal rights of nearly
twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new
law not yet interpreted by the courts, in the interest of the public welfare and for the advancement of
public policy, we have determined to overrule the defense of want of jurisdiction in order that we may
decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general
rule." Our ruling on this point was sustained by the Supreme Court of the United States. A more binding
authority in support of the view we have taken can not be found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been
properly raised. Now for the main inquiry: Is the Act unconstitutional?

Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution.
This court, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article
VIII of the Constitution, may declare an act of the national legislature invalid because in conflict with the
fundamental law. It will not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will
not hesitate to give effect to the supreme law by setting aside a statute in conflict therewith. This is of the
essence of judicial duty.

This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts
should be resolved in favor of the constitutionality of a statute. An act of the legislature approved by the
executive, is presumed to be within constitutional limitations. The responsibility of upholding" the
Constitution rests not on the courts alone but on the legislature as well. "The question of the validity of
every statute is first determined by the legislative department of the government itself." (U. S. vs. Ten Yu
[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U. S. vs. Joson
[1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the
executive. The members of the Legislature and the Chief Executive have taken an oath to support the
Constitution and it must be presumed that they have been true to this oath and that in enacting and
sanctioning a particular law they, did not intend to violate the Constitution. The courts cannot but
cautiously exercise its power to overturn the solemn declarations of two of the three grand departments of
the government. (6 R. C. L., p. 101.) Then, there is that peculiar political philosophy which bids the
judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective
Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitution
except in a clear case. This is a proposition too plain to require a citation of authorities.

One of the counsel for respondents, in the course of his impassioned argument, called attention to the
fact that the President of the Philippines had already expressed his opinion against the constitutionality of
the Probation Act, adverting that as to the Executive the resolution of this question was a foregone
conclusion. Counsel, however, reiterated his confidence in the integrity and independence of this court.
We take notice of the fact that the President in his message dated September 1, 1937, recommended to
the National Assembly the immediate repeal of the Probation Act (No, 4221); that this message resulted
in the approval of Bill No. 2417 of the National Assembly repealing the Probation Act, subject to certain
conditions therein mentioned; but that said bill was vetoed by the President on September 13, 1937,
much against his wish, "to have stricken out from the statute books of the Commonwealth a law * * *
unfair and very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill
referred to, the President exercised his constitutional prerogative. He may express the reasons which he
may deem proper for taking such a step, but his reasons are not binding upon us in the determination of
actual controversies submitted for our determination. Whether or not the Executive should express or in
any manner insinuate his opinion on a matter encompassed within his broad constitutional power of veto
but which happens to be at the same time pending determination in this court is a question of propriety for
him exclusively to decide or determine. Whatever opinion is expressed by him under these
circumstances, however, cannot sway our judgment one way or another and prevent us from taking what
in our opinion is the proper course of action to take in a given case. If it is ever necessary for us to make
any vehement affirmance during this formative period of our political history, it is that we are independent
of the Executive no less than of the Legislative department of our government—independent in the
performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity,
and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it.

The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act
encroaches upon the pardoning power of the Executive; (2) that it constitutes an undue delegation of
legislative power; and (3) that it denies the equal protection of the laws.

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones
Law, in force at the time of the approval of Act No. 4221, otherwise known as the
Probation Act, vests in the Governor-General of the Philippines "the exclusive power to
grant pardons and reprieves and remit fines and forfeitures". This power is now vested in
the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the
Jones Law and the Constitution differ in some respects. The adjective "exclusive" found
in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at
common law, pardon could be granted any time after the commission of the offense,
either before or after conviction Vide Constitution of the United States, Art. II, sec. 2; In re
Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus
 empowered, like the President of the United States, to pardon a person before the facts
of the case were fully brought to light. The framers of our Constitution thought this
undesirable and, following most of the state constitutions, provided that the pardoning
power can only be exercised "after conviction". So, too, under the new Constitution, the
pardoning power does not extend to "cases of impeachment". This is also the rule
generally followed in the United States ( Vide Constitution of the United States, Art. II,
sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar
of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's royal grace is further restrained
or abridged." ( Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com., vs.
Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs.. Drake [1876], 29 Ohio
St., 457; 23 Am. Rep., 762.) The reason for the distinction is obvious. In England,
judgment on impeachment is not confined to mere "removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole
punishment attached by law to the offense committed. The House of Lords, on a
conviction may, by its sentence, inflict capital punishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the offense committed, together with
removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our
Constitution also makes specific mention of "commutation" and of the power of the
executive to impose, in the pardons he may grant, such conditions, restrictions and
limitations as he may deem proper. Amnesty may be granted by the President under the
Constitution but only with the concurrence of the National Assembly. We need not dwell
at length on the significance of these fundamental changes. It is sufficient for our
purposes to state that the pardoning power has remained essentially the same. The
question is: Has the pardoning power of the Chief Executive under the Jones Law been
impaired by the Probation Act?

As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The
exercise of the power may not, therefore, be vested in anyone else. "* * * The benign prerogative of
mercy reposed in the executive cannot be taken away nor fettered by any legislative restrictions, nor can
like power be given by the legislature to any other officer or authority. The coordinate departments of
government have nothing to do with the pardoning power, since no person properly belonging to one of
the departments can exercise any powers appertaining to either of the others except in cases expressly
provided for by the constitution." (20 R. C. L., pp. 540, 541, and cases cited.) "* * * where the pardoning
power is conferred on the executive without express or implied limitations, the grant is exclusive, and the
legislature can neither exercise such power itself nor delegate it elsewhere, nor interfere with or control
the proper exercise thereof, * * *." (12 C. J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers
any pardoning power upon the courts it is for that reason unconstitutional and void. But does it?

In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States
ruled in 1916 that an order indefinitely suspending sentence was void. (Ex parte United States [1916],
242 U. S., 27; 61 Law. ed., 129; L. R. A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.)
Chief Justice White, after an exhaustive review of the authorities, expressed the opinion of the court that
under the common law the power of the court was limited to temporary suspension and that the right to
suspend sentence absolutely and permanently was vested in the executive branch of the government and
not in the judiciary. But, the right of Congress to establish probation by statute was conceded. Said the
court through its Chief Justice: " * * * and so far as the future is concerned, that is, the causing of the
imposition of penalties as fixed to be subject, by probation legislation or such other means as the
legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet by
the exercise of an enlarged but wise discretion the infinite variations which may be presented to them for
judgment, recourse must be had to Congress whose legislative power on the subject is in the very nature
of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision
led the National Probation Association and others to agitate for the enactment by Congress of a federal
probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. at L. 1259, U. S. C.
title 18, see. 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, 2d Session) the following statement:

"Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of
probation either, by suspending sentence or by placing the defendants under state probation officers or
volunteers. In this case, however (Ex parte United States, 242 U. S., 27; 61 L. ed., 129; L. R. A., 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district
courts to suspend sentence. In the same opinion the court pointed out the necessity for action by
Congress if the courts were to exercise probation powers in the future. * * *

"Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917,
a bill was favorably reported by the. Judiciary Committee and passed the House. In 1920, the Judiciary
Committee again favorably reported a probation bill to the House, but it was never reached for definite
action.

"If this bill is enacted into law, it will bring the policy of the Federal government with reference to its
treatment of those convicted of violations of its criminal laws in harmony with that of the states of the
Union. At the present time every state has a probation law, and in all but twelve states the law applies
both to adult and juvenile offenders." (See, also, Johnson, Probation for juveniles and Adults [1928],
Chap. I.)
The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs
vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said:

"Since the passage of the Probation Act of March 4,1925, the questions under consideration have been
reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of
the act fully sustained, and the same held in no manner to encroach upon the pardoning power of the
President. This case will be found to contain an able and comprehensive review of the law applicable
here. It arose under the act we have to consider, and to it and the authorities cited therein special
reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of
Appeals of the Seventh Circuit (Kriebel vs. U. S., 10 F. [2d], 762), likewise construing the Probation Act."

We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language,
pointed to Congress as possessing the requisite power to enact probation laws, that a federal probation
law was actually enacted in 1925, and that the constitutionality of the Act has been assumed by the
Supreme Court of the United States in 1928 and consistently sustained by the inferior federal courts in a
number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally
enact a probation law under its broad power to fix the punishment of any and all penal offenses. This
conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L. R. A. 1916A,
1285; 151 Pac, 698, the court said: "It is clearly within the province of the Legislature to denominate and
define all classes of crime, and to prescribe for each a minimum and maximum punishment." And in State
vs. Abbott ([1910], 87 S. C., 466; 33 L, R. A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court
said: "The legislative power to set punishment for crime is very broad, and in the exercise of this power
the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to
foe imposed, as to the beginning and end of the punishment and whether it should be certain or
indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the
Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the
legislature has demonstrated the desire to vest in the courts—particularly the trial courts—large discretion
in imposing the penalties which the law prescribes in particular cases. It is believed that justice can best
be served by vesting this power in the courts, they being in a position to best determine the penalties
which an individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to
refrain from imposing a sentence merely because, taking into consideration the degree of malice and the
injury caused by the offense, the penalty provided by law is clearly excessive, the courts being allowed in
such cases to submit to the Chief Executive, through the Department of Justice, such statement as it may
deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the law provides for a penalty composed of
two indivisible penalties, the courts may allow such circumstances to offset one another in consideration
of their number and importance, and to apply the penalty according to the result of such compensation.
(Art. 63, rule 4, Revised Penal Code; U. S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again,
article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of
each period, in case the penalty prescribed by law contains three periods, the extent of the penalty
according to the number and nature of the aggravating and mitigating circumstances and the extent of the
evil produced by the crime. In the imposition of fines, the courts are allowed to fix any amount within the
limits established by law, considering not only the mitigating and aggravating circumstances, but more
particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of
the same Code provides that "a discretionary penalty shall be imposed" upon a person under fifteen but
over nine years of age, who has not acted without discernment, but always lower by two degrees at least
than that prescribed by law for the crime which he has committed. Article 69 of the same Code provides
that in case of "incomplete self-defense", i. e., when the crime committed is not wholly excusable by
reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability
in the several cases mentioned in articles 11 and 12 of the Code, "the courts shall impose the penalty in
the period which may be deemed proper, in view of the number and nature of the conditions of exemption
present or lacking." And, in case the commission of what are known as "impossible" crimes, "the court,
having in mind the social danger and the degree of criminality shown by the offender," shall impose upon
him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.)

Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted from
the entire term of imprisonment, except in certain cases expressly mentioned (art. 29) ; the death penalty
is not imposed when the guilty person is more than seventy years of age, or where upon appeal or
revision of the case by the Supreme Court, all the members thereof are not unanimous in their voting as
to the propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative
Code, as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman
within the three years next following the date of the sentence or while she is pregnant, or upon any
person over seventy years of age (art. 83); and when a convict shall become insane or an imbecile after
final sentence has been pronounced, or while he is serving his sentence, the execution of said sentence
shall be suspended with regard to the personal penalty during the period of such insanity or imbecility
(art. 79).

But the desire of the legislature to relax what might result in the undue harshness of the penal laws is
more clearly demonstrated in various other enactments, including the probation Act. There is the
Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No.
4225, establishing a system of parole (sees. 5 to 10) and granting the courts large discretion in imposing
the penalties of the law. Section 1 of the law as amended provides: "Hereafter, in imposing a prison
sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in
view of the attending circumstances, could be properly imposed under the rules of the said Code, and to
a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the
offense; and if the offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and
the minimum shall not be less than the minimum term prescribed by the same." Certain classes of
convicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has also
enacted the Juvenile Delinquency Law (Act No. 3203) which was subsequently amended by Act No.
3559. Section 7 of the original Act and section 1 of the amendatory Act have become article 80 of the
Revised Penal Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended by
Commonwealth Act No. 99, of the National Assembly. Finally came the (Adult) Probation Act now in
Question. In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It
allows, in effect, the modification in particular cases of the penalties prescribed by law by permitting the
suspension of the execution of the judgment, in the discretion ox the trial court, after due hearing and
after investigation of the particular circumstances of the offense, the criminal record, if any, of the convict,
and his social history. The Legislature has in reality decreed that in certain cases no punishment at all
shall be suffered by the convict as long as the conditions of probation are faithfully observed. If this be so,
then, it cannot be said that the Probation Act conies in conflict with the power of the Chief Executive to
grant pardons and reprieves, because, to use the language of the Supreme Court of New Mexico, "the
element of punishment or the penalty for the commission of a wrong, while to be declared by the courts
as a judicial function under and within the limits of law as announced by legislative acts, concerns solely
the procedure and conduct of criminal causes, with which the executive can have nothing to do," (Ex
parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S. E., 843), the court upheld the
constitutionality of the Georgia probation statute against the contention that it attempted to delegate to the
courts the pardoning power lodged by the constitution in the governor of the state and observed that
"while the governor alone is vested with the power to pardon after final sentence has been imposed by
the courts, the power of the courts to impose any penalty which may be from time to time prescribed by
law and in such manner as may be defined cannot be questioned."

We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawuful for
the legislature to vest in the courts the power to suspend the operation of a sentence, by probation or
otherwise, as to do so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89
Wis., 354; 27 L. R. A., 356; 46 Am. St. Kep., 846; 62 N. W., 177; 9 Am. Crim. Rep., 7O.; State ex rel.
Summer-field vs. Moran [1919], 43 Nev., 150; 182 Pac, 927; Ex parte Clendenning [1908], 22 Okla., 108;
1 Okla. Crim. Rep., 227; 19 L. R. A. [N. S.], 1041; 132 Am. St. Rep., 628; 97 Pac, 650; People vs. Barrett
[1903], 202 111., 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., 1902; 69 Am. St. Rep., 175; 30 S. E., 858;
State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15;
19 N. W., 571; State vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.)

Other cases, however, hold contra (Nix vs. James [1925; C C. A., 9th], 7 F. [2d], 590; Archer vs. Snook
[1926; D. C], 10 F. [2d], 567; Riggs. vs..United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. State
[1926], 171 Ark., 62O. 286 3. 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 Be 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], 257 111., 443; 100 N. E., 1000; Parker vs. State
[1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hilarie, Petitioner [1909], 101 Me., 522; 64 Atl.,
882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn.,
529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac, 525; State vs. Everitt
[1913], 164 N. C, 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel Buckley vs. Drew [1909], 75 N.
H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20
N. M., 542; L. R. A., 1916 A, 1285; 151 Pac, 698; People ex rel. Forsyth vs. Court of Sessions [1894], 141
N. Y., 288; 23 L: R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn
[1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs.
Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal
[1918], 108 S. C, 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C, 466; 33 L. R. A. [N. S.], 112; 70 S. E.,
6; Ann. Cas., 1912B, 1189; Fults vs. State [1854], 34 Tenn., 232; Woods vs. State [1814], 130 Tenn.,
100; 169 S. W., 558; Baker vs. State [1913], 70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State
[1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S.
W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt.,
197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S. E., 460; State vs. Mallahan [1911], 65
Wash., 287; 118 Pac, 42; State ex rel. Tingstad vs. Starwich [1922], 119 Wash., 561; 206 Pac, 29; 26 A.
L. R., 393; 396.) We elect to follow this long catena of authorities holding that the courts may be legally
authorized by the legislature to suspend sentence by their establishment of a system of probation
however characterized. State ex rel. Tingstad vs. Starwich ([1922], 119 Wash., 561; 206 Pac, 29; 26 A. L.
R., 393), deserved particular mention. In that case, a statute enacted in 1921 which provided for the
suspension of the execution of a sentence until otherwise ordered by the court, and required that the
convicted person be placed under the charge of a parole or peace officer during the term of such
suspension, on such terms as the court may determine, was held constitutional and as not giving the
court a power in violation of the constitutional provision vesting the pardoning power in the chief executive
of the state. (Vide, also, Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831.)

Probation and pardon are not coterminous; nor are they the same. They are actually distinct and different
from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141
N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of
New York said:

"* * * The power to suspend sentence and the power to grant reprieves and pardons, as understood when
the constitution was adopted, are totally distinct and different in their origin and nature. The former was
always a part of the judicial power; the latter was always a part of the executive power. The suspension of
the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and
liability following it, and all civil disabilities, remain and become operative when judgment is rendered. A
pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases
the punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as
innocent as if he had never committed the offense. It removes the penalties and disabilities, and restores
him to alt his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity.
(Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20
Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)

"The framers of the federal and state constitutions were perfectly familiar with the principles governing the
power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge
of the law upon the subject, and the words of the constitution were used to express the authority formerly
exercised by the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18
How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any part of the
judicial functions to suspend sentence, and it was never intended that the authority to grant reprieves and
pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own
judgments, that criminal courts had so long maintained. The two powers, so distinct and different in their
nature and character, were still left separate and distinct, the one to be exercised by the executive, and
the other by the judicial department. We therefore conclude that a statute which, in terms, authorizes -
courts of criminal jurisdiction to suspend sentence in certain cases after conviction,—a power inherent in
such courts at common law, which was understood when the constitution was adopted to be an ordinary
judicial function, and which, ever since its adoption, has been exercised by the courts, is a valid exercise
of legislative power under the constitution. It does not encroach, in any just sense, upon the powers of the
executive, as they have been understood and practiced from the earliest times." (Quoted with approval in
Director of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at
pp. 294, 295.)

In probation, the probationer is "in no true sense, as In pardon, a free man. He is not finally and
completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under the
Probation Act, the probationer's case is not terminated by the mere fact that he is placed on probation.
Section 4 of the Act provides that the probation may be definitely terminated and the probationer finally
discharged from supervision only after the period of probation shall have been terminated and the
probation officer shall have submitted a report, and the court shall have found that the probationer has
complied with the conditions of probation. The probationer, then, during the period of probation, remains
in legal custody— subject to the control of the probation officer and of the court; and, he may be
rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be
committed to prison to serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No.
4221.)

"The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is
really a new mode of punishment, to be applied by the judge in a proper case, in substitution of the
imprisonment and fine prescribed by the criminal laws. For this reason its application is as purely a
judicial act as any other sentence carrying out the law deemed applicable to the offense. The executive
act of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or rather is
outside of and above it. There is thus no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause." (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)

Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass
vs. State ([1912], 67 Tex. Crim. Rep., 615 ; 41 L. R. A. [N. S.], 1144; 150 S. W.; 162), is relied upon moat
strongly by the petitioners as authority in support of their contention that the power to grant pardons and
reprieves, having been vested exclusively upon the Chief Executive by the Jones Law, may not be
conferred by the legislature upon the courts by means of a probation law authorizing the indefinite judicial
suspension of sentence. We have examined that case and found that although the Court of Criminal
Appeals of Texas held that the probation statute of the state in terms conferred on the district courts the
power to grant pardons to persons convicted of crime, it also distinguished between suspension of
sentence on the one hand, and reprieve and commutation of sentence on the other. Said the court,
through Harper, J.:
"That the power to suspend the sentence does not conflict with the power of the Governor to grant
reprieves is settled by the decisions of the various courts; it being held that the distinction between a
'reprieve' and a suspension of sentence is that a reprieve postpones the execution of the sentence to a
day certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re
Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words& Phrases, pp. 6115, 6116. This
law cannot be held in conflict with the power confiding in the Governor to grant commutations of
punishment, for a commutation is but to change the punishment assessed to a less punishment."

In State ex rel. Bottomly vs. District Court ([1925], 73 Mont., 541; 237 Pac, 525), the Supreme Court of
Montana had under consideration the validity of the adult probation law of the state enacted in 1913, now
found in sections 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 terms 'pardon,' 'commutation,' and 'respite' each had a wellunderstood meaning at the time our
Constitution was adopted, and no one of them was intended to comprehend the suspension of the
execution of a judgment as that phrase is employed in sections 12078-12086. A 'pardon' is an act of
grace, proceeding from the power intrusted with the execution of the laws which exempts the individual
on whom it is bestowed from the punishment the law inflicts for a crime he has committed (United States
vs. Wilson, 7 Pet., 150; 8 Law. ed., 640) ; It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So.,
816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73
Ala., 517; 49 Am. Rep., 71). 'Commutation' is a remission of a part of the punishment; a substitution of a
less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.], 789; 12 Am. Rep., 563; Rich
vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A 'reprieve' or 'respite' is the withholding of a sentence
for an interval of time (4 Blackstone's Commentaries, 394), a postponement of execution (Carnal vs.
People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of executon (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; 163 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 our constitutional system, the powers of government are distributed among three coordinate and
substantially independent organs: the legislative, the executive and the judicial. Each of these
departments of the government derives its authority from the Constitution which, in turn, is the highest
expression of popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is
supreme within its own sphere.

The power to make laws—the legislative power—is vested in a bicameral Legislature by the Jones Law
(sec. 12) and in a unicameral National Assembly by the Constitution (Art. VI, sec. 1, Constitution of the
Philippines). The Philippine Legislature or the National Assembly may not escape its duties and
responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power
is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is
said to have originated with the glossators, was introduced into English law through a misreading of
Bracton, there developed as a principle of agency, was established by Lord Coke in the English public
law in decisions forbidding the delegation of judicial power, and found its way into America as an
enlightened principle of free government. It has since become an accepted corollary of the principle of
separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of
Locke, namely: "The legislative neither must nor can transfer the power of making laws to anybody else,
or place it anywhere but where the people have." (Locke on Civil Government sec. 142.) Judge Cooley
enunciates the doctrine in the following oft-quoted language: "One of the settled maxims in constitutional
law is, that the power conferred upon the legislature to make laws cannot be delegated by that
department to any other body or authority. Where the sovereign power of the state has located the
authority, there it must remain; and by the constitutional agency alone the laws must be made until the
Constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative
has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the
power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for
those to which alone the people have seen fit to confide this sovereign trust." (Cooley on Constitutional
Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This
court posits the doctrine "on the ethical principle that such a delegated power constitutes not only a right
but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately
upon the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at
p. 330.)

The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It
admits of exceptions. An exception sanctioned by immemorial practice permits the central legislative body
to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil.,
660 U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law.
ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30.N. H., 279.) "It is a cardinal principle of our
system of government, that local affairs shall be managed by local authorities, and general affairs by the
central authority; and hence while the rule is also fundamental that the power, to make laws cannot be
delegated, the creation of municipalities exercising local self government has never been held to trench
upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the
grant of the authority to prescribe local regulations, according to immemorial practice, subject of course to
the interposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the
same principle, Congress is empowered to delegate legislative power to such agencies in the territories of
the United States as it may select. A territory stands in the same relation to Congress as a municipality or
city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742.;
51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U. S., 138; 24 Sup. Ct. Rep., 808;
49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the
people at large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p.
164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However,
the question of whether or not a state has ceased to be republican in form because of its adoption of the
initiative and referendum has been held not to be a judicial but a political question (Pacific States Tel. &
Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law, ed., 377; 32 Sup. Ct. Rep., 224), and as the
constitutionality of such laws has been looked upon with favor by certain progressive courts, the sting of
the decisions of the more conservative courts has been pretty well drawn. (Opinions of the Justices
[1894], 16O.Mass., 586; 36 N. E., 488; 23 L. R. A., US; Kiernan vs. Portland [1910], 57 Ore., 454; 111
Pac, 379; 112 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 prescribe, to
promulgate rules and regulations to carry out a declared national policy." It is beyond the scope of this
decision to determine whether or not, in the absence of the foregoing constitutional provisions, the
President could be authorized to exercise the powers thereby vested in him. Upon the other hand,
whatever doubt may have existed has been removed by the Constitution itself.

The case before us does not fall under any of the exceptions hereinabove mentioned.

The challenged section of Act No. 4221 is section 11 which reads as follows:

"This Act shall apply only in those provinces in which the respective provincial boards have provided for
the salary of a, probation officer at rates not lower than those now provided for provincial fiscals. Said
probation officers shall be appointed by the Secretary of Justice and shall be subject to the direction of
the Probation Office." (Underscoring ours.)

In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to
inquire •whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the legislature.
(6 R. C. L., p, 165.) In United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the
foregoing rule when it held an act of the legislature void in so far as it undertook to authorize the
Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make the sale of
it in violation of the proclamation a crime. (See and cf. Compania 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. 177179.)

For the purposes of the Probation Act, the provincial boards may be regarded as administrative bodies
endowed with power to determine when the Act should take effect in their respective provinces. They are
the agents or delegates of the legislature in this respect. The rules governing delegation of legislative
power to administrative and executive officers are applicable or are at least indicative of the rule which
should be here adopted. An examination of a variety of cases on delegation of power to administrative
bodies will show that the ratio decidendi is at variance but, it can be broadly asserted that the rationale
revolves around the presence or absence of a standard or rule of action—or the sufficiency thereof—in
the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the
standard is sufficient; in others that it is insufficient; and in still others that it is entirely lacking. As a rule,
an act of the legislature is incomplete and hence, invalid if it does not lay down any rule or definite
standard by which the administrative officer or board may be guided in the exercise of the discretionary
powers delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup.
Ct. Rep., 837; 97 A. L. R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 111., 406; 4 N. E. [2d],
847; 107 A. L. R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec. 174.) In the
case at bar, what rules are to guide the provincial boards in the exercise of their discretionary power to
determine whether or not the Probation Act shall apply in their respective provinces? What standards are
fixed by the Act? We do not find any and none has been pointed to us by the respondents. The probation
Act does not, by the force of any of its provisions, fix and impose upon the provincial boards any standard
or .guide in the exercise of their discretionary power. What is granted, if we may use the language of
Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which enables the
provincial boards to exercise arbitrary discretion. By section 11 of the Act, the legislature does seemingly
on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the
entire matter for the various provincial boards to determine. In other words, the provincial boards of the
various provinces are to determine for themselves, whether the Probation Law shall apply to their
provinces or not at all. The applicability and application of the Probation Act are entirely placed in the
hands of the provincial boards. If a provincial board does not wish to have the Act applied in its province,
all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The
plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual
surrender of legislative power to the provincial boards.

"The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its
execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no
valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St.,
77, 88. See also, Sutherland on Statutory Construction, sec. 68.) To the same effect are decisions of this
court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil, 547) ; Rubi vs. Provincial
Board of Mindoro ([1919], 39 Phil., 660), and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of
these cases, this court sustained the validity of a law conferring upon the Governor-General authority to
adjust provincial and municipal boundaries. In the second case, this court held it lawful for the legislature
to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be selected by the
provincial governor and approved by the provincial board. In the third case, it was held proper for the
legislature to vest in the Governor-General authority to suspend or not, at his discretion, the prohibition of
the importation of foreign cattle, such prohibition to be raised "if the conditions of the country make this
advisable or if disease among foreign cattle has ceased to be a menace to the agriculture and livestock of
the lands."

It should be observed that in the case at bar we are not concerned with the simple transference of details
of execution or the promulgation by executive or administrative officials of rules and regulations to carry
into effect the provisions of a law. If We were, recurrence to our own decisions would be sufficient. (U. S.
vs. Barrias [1908], 11 Phil., 327; U. S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs
[1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31
Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)

It is contended, however, that a legislative act may be made to the effect as law after it leaves the hands
of the legislature. It is true that laws may be made effective on certain contingencies, as by proclamation
of the executive or the adoption by the people of a particular community (6 R. C. L., 116. 17O.172;
Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1;
6 Law. ed;., 253), the Supreme Court of the United States ruled that the legislature may delegate a power
not legislative which it may itself rightfully exercise. (Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92
Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such 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 en Constitutional Limitations finds
restatement in Prof. Willoughby's treatise on the Constitution of the United States in the following
language—speaking of declaration of legislative power to administrative agencies: "The principle which
permits the legislature to provide that the administrative agent may determine when the circumstances
are such as require the application of a law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the legislative act, is determined by the
legislature. In other words, the legislature, as it is its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be taken, and that, under other
circumstances, different or no action at all is to be taken. What is thus left to the administrative official is
not the legislative determination of what public policy demands, but simply the ascertainment of what the
facts of the case require to be done according to the terms of the law by which he is governed."
(Willoughby on the Constitution of the United States, 2nd ed., Vol. Ill, p. 1637.) In Miller vs. Mayer, etc., of
New York ([1883], 109 U. S., 385; 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The
efficiency of an Act as a declaration of legislative will must, of course, come from Congress, but the
ascertainment of the contingency upon which the Act shall take effect may be left to such agencies as it
may designate." (See, also, 12 G. J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr
[1859], 13 Cal., 343, 358.) The legislature, then, may provide that a law shall take effect upon the
happening of future specified contingencies leaving to some other person or body the power to determine
when the specified contingency has arisen. But, in the case at bar, the legislature has not made the
operation of the Probation Act contingent upon specified facts or conditions to be ascertained by the
provincial board. It leaves, as we have already said, the entire operation or non-operation of the law upon
the provincial boards. The discretion vested is arbitrary because it is absolute and unlimited. A provincial
board need not investigate conditions or find any fact, or await the happening: of any specified
contingency. It is bound by no rule,— limited by no principle of expediency announced by the legislature.
It may take into consideration certain facts or conditions; and, again, it may not. It may have any purpose
or no purpose at all. It need not give any reason or have any reason whatsoever for refusing or failing to
appropriate any funds for the salary of a probation officer. This is a matter which rests entirely at its
pleasure. The fact that at some future time—we cannot say when—the provincial boards may appropriate
funds for the salaries of probation officers and thus put the law into operation in the various provinces will
not save the statute. The time of its taking into effect, we reiterate, would yet be based solely upon the will
of the provincial boards and not upon the happening of a certain specified contingency, or upon the
ascertainment of certain facts or conditions by a person or body other than the legislature itself.

The various provincial boards are, in practical effect, endowed with the power of suspending the
operation of the Probation Law in their respective provinces. In some jurisdictions, constitutions provide
that laws may be suspended only by the legislature or by its authority. Thus, section 28, article I of the
Constitution of Texas provides that "No power of suspending laws in this state shall be exercised except
by the legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation of
the laws shall never be suspended, except by authority of the General Assembly." Yet, even provisions of
this sort do not confer absolute power of suspension upon the legislature. While it may be undoubted that
the legislature may suspend a law, or the execution or operation of a law, a law may not be suspended as
to certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and
cannot be made for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass.,
396; 6 Am. Dec., 174, 177, 178), it was said:

"By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared
that the power of suspending the laws, or the execution of the laws, ought never to be exercised but by
the legislature, or by authority derived from it, to be exercised in such particular cases only as the
legislature shall expressly provide for. Many of the articles in that declaration of rights were adopted from
the Magna Charta of England, and from the bill of rights passed in the reign of William and Mary. The bill
of rights contains an enumeration of the oppressive acts of James II, tending to subvert and extirpate the
protestant religion, and the laws and liberties of the kingdom; and the first of them is the assuming and
exercising a power of dispensing with and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of rights contained in the statute is, that
the exercise of such power, by regal authority without consent of parliament, is illegal. In the tenth section
of the same statute it is further declared and enacted, that 'No dispensation by non obstante of or to any
statute, or any part thereof, should be allowed; but the same should be held void and of no effect, except
a dispensation be allowed of in such statute.' There is an implied reservation of authority in the parliament
to exercise the power here mentioned; because, according to the theory of the English Constitution, 'that
absolute despotic power, which must in all governments preside somewhere,' is intrusted to the
parliament: 1 Bl. Com., 160.

"The principles of our government are widely different in this particular. Here the sovereign and absolute
power resides in the people; and the legislature can only exercise what is delegated to them according to
the constitution. It is obvious that the exercise of the power in question would be equally oppressive to the
subject, and subversive of his right to protection, 'according to standing laws,' whether exercised by one
man or by a number of men. It cannot be supposed that the people when adopting this general principle
from the English bill of rights and inserting it in our constitution, intended to bestow by implication on the
general court one of the most odious and oppressive prerogatives of the ancient kings of England, it is
manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our
constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all
others under like circumstances; or that any one should be subject to losses, damages, suits, or actions
from which all others under like circumstances are exempted."

To illustrate the principle: A section of. a statute relative to dogs made the owner of any dog liable to the
owner of domestic animals wounded by it for the damages without proving a knowledge of its vicious
disposition. By a provision of the act, power was given to the board of supervisors to determine whether
or not during the current year their county should be governed by the provisions of the act of which that
section constituted a part. It was held that the legislature could not confer that power. The court observed
that it could no more confer such a power than to authorize the board of supervisors of a county to
abolish in such county the days of grace on commercial paper, or to Suspend the statute of limitations.
(Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same
reason in State vs. Field ([1853], 17 Mo., 529; 59 Am. Dec, 275.) In that case a general statute
formulating a road system contained a provision that "if the county court of any county' should be of
opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the
operation of the same for any specified length of time, and thereupon the act should become inoperative
in such county for the period specified in such order; and thereupon order the roads to be opened and
kept in good repair, under the laws theretofore in force." Said the court: "* * * this act, by its own
provisions, repeals the inconsistent provisions of a former act, and yet it, is left to the county court to say
which act shall be in force in their county. The act does not submit the question to the county court as an
original question, to be decided by that tribunal, whether the act shall commence its operation within the
county; but it became by its own terms a law in every county not excepted by name in the act. It did not,
then, require the county court to do any act in order to give it effect. But being the law in the county, and
having by its provisions superseded and abrogated the inconsistent provisions of previous laws, the
county court is * * * empowered, to suspend this act and revive the repealed provisions of the former act.
When the question is before the county court for that tribunal to determine which law shall be in force, it is
urged before us that the power then to be exercised by the court is strictly legislative power, which under
our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the
present case, the question is not presented in the abstract; for the county court of Saline county, after the
act had been for several months in force in that county, did by order suspend its operation; and during
that suspension the offense was committed which is the subject of the present indictment * * *." (See
Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

True, the legislature may enact laws for a particular locality different from those applicable to other
localities and, while recognizing the force of the principle hereinabove expressed, courts in many
jurisdictions have sustained the constitutionality of the submission of option laws to the vote of the people.
(6 R. C. L., p. 171.) But option laws thus sustained treat of subjects purely local in character, which
should receive different treatment in different localities placed under different circumstances. "They relate
to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways,
may be differently regarded in different localities, and they are sustained on what seems to us the
impregnable ground, that the subject, though not embraced within the ordinary powers of municipalities to
make by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which it
is proper that the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.)
So that, while we do not deny the right of local self-government and the propriety of leaving matters of
purely local concern in the hands of local authorities or for the people of small communities to pass upon,
we believe that in matters of general legislation like that which treats of criminals in general, and as
regards the general subject of probation, discretion may not be vested in a manner so unqualified and
absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincial boards
may suspend the operation of the Probation Act in particular provinces but, considering that, in being
vested with the authority to appropriate or not the necessary funds for the salaries of probation officers,
they thereby are given absolute discretion to determine whether or not the law should take effect or
operate in their respective provinces, the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance until the
provincial boards should decide otherwise by appropriating the necessary funds. The validity of a law is
not tested by what has been done but by what may be done under its provisions. (Walter E. Olsen& Co.
vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)

It is conceded that a great deal of latitude should be granted to the legislature not only in the expression
of what may be termed legislative policy but in the elaboration and execution thereof. "Without this power,
legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been
said that popular government lives because of the inexhaustible reservoir of power behind it. It is
unquestionable that the mass of powers of government is vested in the representatives of the people and
that these representatives are no further restrained under our system than by the express language of the
instrument imposing the restraint, or by particular provisions which by clear intendment, have that effect.
(Angara vs. Electoral Commission [1936], 35 Off. Gaz., 23; Schneckenburger vs. Moran [1936], 35 Off.
Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of power
and one of these time-honored limitations is that, subject to certain exceptions, legislative power shall not
be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of
legislative authority to the provincial boards and is, for this reason, unconstitutional and void.
 3. It is also contended that the Probation Act violates' the provision of our Bill of Rights
which prohibits the denial to any person of the equal protection of the laws (Art. Ill, sec.
1, subsec 1, Constitution of the Philippines.)

This basic individual right sheltered by the Constitution is a restraint on all the three grand departments of
our government and on the subordinate instrumentalities and subdivisions thereof, and on many
constitutional powers, like the police power, taxation and eminent domain. The equal protection of the
laws, sententiously observes the Supreme Court of the United States, "is a pledge of the protection of
equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464;
Fterley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may
be regarded as a denial of the equal protection of the laws is a question not always easily determined. No
rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184 U. S.,
540; 22 Sup. Ct. Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring
others is prohibited. But classification on a reasonable basis, and not made arbitrarily or capriciously, is
permitted. {Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S.
F. Ry Co. vs; Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs.
Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based on
substantial distinctions which make real differences; it must be germane to the purposes of the law; it
must not be limited to existing conditions only, and must apply equally to each member of the class.
(Borgnis vs. Falk. Co. [1911], 147 Wis., 327,353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.],
489; State vs. Cooley, 56 Minn., 540 530-552; 58 N. W., 150; .Liridsley 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. 3., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374;
Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann.
Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)

In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation
of legislative power, although perhaps this is not necessarily the result in every case. Adopting the
example given by one of the counsel for the petitioners in the course of his oral argument, one province
may appropriate the necessary fund to defray the salary of a probation officer, while another province
may refuse or fail to do so. In such a case, the Probation Act would be in operation in the former province
but not in the latter. This means that a person otherwise coming within the purview of the law would be
liable to enjoy the benefits of probation in one province while another person similarly situated in another
province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also
possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation
officers in their respective provinces, in which case no inequality would result for the obvious reason that
probation would be in operation in each and every province by the affirmative action of appropriation by
all the provincial boards. On that hypothesis, every person coming within the purview of the Probation Act
would be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no
province, through its provincial board, should appropriate any amount for the salary of the probation
officer—which is the situation now—and, also, if we accept the contention that, for the purposes of the
Probation Act, the City of Manila should be considered as a province and that the municipal board of said
city has not made any appropriation for the salary of a probation officer. These different situations
suggested show, indeed, that while inequality may result in the application of the law and in the
conferment of the benefits therein provided, inequality is not in all cases the necessary result. But
whatever may1 be the case, it is clear that section 11 of the Probatoin Act creates a situation in which
discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities
requiring actual denial of the equal protection of the law before courts should assume the task of setting
aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion
that section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that
account bad. We see no difference between a law which denies equal protection and a law which permits
of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of
unjust and illegal discrimination, it is within the constitutional prohibition. (By analogy, Chy Lung vs.
Freeman [1876], 292 U. S., 275; 23 Law, ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law.
ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law ed., 676; Neal vs. Delaware [1881], 103 U. S.,
370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145; Yick Wo vs.
Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup.
Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55
Law. ed., 191; Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law.
ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their effect in operation
(General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs.
Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If a law has the effect of
denying the equal protection of the law it is unconstitutional|. (6 R. C. L. p. 372; Civil Rights Cases, 109 U.
S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me.,
192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L.
R. A., 858.) Under section 11 of the Probation Act, not only may said Act be in force in one or several
provinces and not be in force in the other provinces, but one province may appropriate for the salary of a
probation officer of a given year—and have probation during that year—and thereafter decline .to make
further appropriation, and have no probation in subsequent years. While this situation goes rather to the
abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions
a situation which is intolerable in a government of laws, and to prove how easy it is, under the Act, to
make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis
[1897], 165 U. S., 150, 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)

Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914],
234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States affirmed the
decision of this court (18 Phil., 1) by declining to uphold the contention that there was a denial of the
equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880
(101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial
uniformity. It should be observed, however, that this case concerns the right to preliminary investigations
in criminal cases originally granted by General Orders No. 58. No question of legislative authority was
involved and the alleged denial of the equal protection of the laws was the result of the subsequent
enactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing in
section 2 thereof that "in cases triable only in the court of first instance of the City of Manila, the defendant
* * * shall not be entitled as of right to a preliminary examination in any case where the prosecuting
attorney, after a due investigation of the facts * * * shall have presented an information against him in
proper form * * *." Upon the other hand, an analysis of the arguments and the decision indicates that the
investigation by the prosecuting attorney—although not in the form had in the provinces—was considered
a reasonable substitute for the City of Manila, considering the peculiar conditions of the city as found and
taken into account by the legislature itself.

Reliance is also placed 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 the St. Louis Court of Appeals. The provision complained of, then, is
found in the constitution itself and it is the constitution that makes the apportionment of territorial
jurisdiction.

We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also
repugnant to the equal-protection clause of our Constitution.

Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next
inquiry is whether or not the entire Act should be avoided.

"In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will
resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid,
and is so independent and separable that its removal will leave the constitutional features and purposes
of the act substantially unaffected by the process." (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. Pv.
A., 485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U. S., 235, 240; 73 Law. ed.,
287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this
court stated the well-established rule concerning partial invalidity of statutes in the following language:

"* * * where part of a statute is, void, as repugnant to the Organic Law, while another part is valid, the
valid portion, if separable from the invalid, may stand and be enforced. But in order to do this, the valid
portion must be so far independent of the invalid portion that it is fair to presume that the Legislature
would have enacted it by itself if they had supposed that they could not constitutionally enact the other.
(Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes
Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a
complete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass, 132
Ga., 117; 63 S. E., 798.) The void provisions must be eliminated without causing results affecting the
main purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L. R.,
Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S.,
794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 54O. 565; People vs. Strassheim, 240 111., 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 have provided for the salaries of probation officers were
inoperative on constitutional grounds, the remainder of the Act would still be valid and may be enforced.
We should be inclined to accept the suggestion but for the fact that said section is, in our opinion, so
inseparably linked with the other portions of the Act that with the elimination of the section what would be
left is the bare idealism of the system, devoid of any practical benefit to a large number of people who
may be deserving of the intended beneficial results of that system. The clear policy of the law, as may be
gleaned from a careful examination of the whole context, is to make the application of the system
dependent entirely upon the affirmative action of the different provincial boards through appropriation of
the salaries for probation officers at rates not lower than those provided for provincial fiscals. Without
such action on the part of the various boards, no probation officers would be appointed by the Secretary
of Justice to act in the provinces. The Philippines is divided or subdivided into provinces and it needs no
argument to show that if not one of the provinces—and this is the actual situation now—appropriates the
necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There
can be no probation without a probation officer. Neither can there be a probation officer without a
probation system.

Section 2 of the Act provides that the probation officer shall supervise and visit the probationer. Every
probation officer is given, as to the persons placed in probation under his care, the powers of a police
officer. It is the duty of probation officers to see that the conditions which are imposed by the court upon
the probationer under his care are complied with. Among those conditions, the following are enumerated
in section 3 of the Act:

"That the probationer (a) shall indulge in no injurious or vicious habits;

"(b) Shall avoid places or persons of disreputable or harmful character;

"(c) Shall report to the probation officer as directed by the court or probation officers;

"(d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere;

"(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his
conduct or condition;

"(f) Shall endeavor to be employed regularly;

"(g) Shall remain or reside within a specified place or locality;

"(h) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by
his offense;

"(i) Shall support his wife and children;

"(j) Shall comply with such orders as the court may from time to time make; and

"(k) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in
accordance with law."

The court is required to notify the probation officer in writing of the period and terms of probation. Under
section 4, it is only after the period of probation, the submission of a report of the probation officer and
appropriate finding of the court that the probationer has complied with the conditions of probation that
probation may be definitely terminated and the probationer finally discharged from supervision. Under
section 5, if the court finds that there is non-compliance with said conditions, as reported by the probation
officer, it may issue a warrant for the arrest of the probationer and said probationer may be committed
with or without bail. Upon arraignment and after an opportunity to be heard, the court may revoke,
continue or modify the probation, and if revoked, the court shall order the execution of the sentence
originally imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of every
probation officer to furnish to all persons placed on probation under his supervision a statement of the
period and conditions of their probation, and to instruct them concerning the same; to keep informed
concerning their conduct and condition; to aid and encourage them by friendly advice and admonition,
and by such other measures, not inconsistent with the conditions imposed by the court as may seem
most suitable, to bring about improvement in their conduct and condition; to report in writing to the court
having jurisdiction over said probationers at least once every two months concerning their conduct and
condition; to keep records of their work; to make such reports as are necessary for the information of the
Secretary of Justice and as the latter may require; and to perform such other duties as are consistent with
the functions of the probation officer and as the court or judge may direct. The probation officers provided
for in this Act may act as parole officers for any penal or reformatory institution for adults when so
requested by the authorities thereof, and, when designated by the Secretary of Justice, shall act as parole
officer of persons released on parole under Act Numbered Forty-one Hundred and Three, without any
additional compensation."

It is argued, however, that even without section 11 probation officers may be appointed in the provinces
under section 1O.of the Act which provides as follows:

"There is hereby created in the Department of Justice and subject to its supervision and control, a
Probation Office under the direction of a Chief Probation Officer to be appointed by the Governor-General
with the advise and consent of the Senate who shall receive a salary of four thousand eight hundred
pesos per annum. To carry out the purposes of this Act, there is hereby appropriated out of any funds in
the Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to be disbursed by the
Secretary of Justice, who is hereby authorized to appoint probation offieers and the administrative
personnel of the probation office under civil service regulations from among those who possess the
qualifications, training and experience prescribed by the Bureau of Civil Service, and shall fix the
compensation of such probation officers and administrative personnel until such positions shall have been
included in the Appropriation Act."
But the probation officers and the administrative personnel referred to in the foregoing section are clearly
not those probation officers required to be appointed for the provinces under section 11. It may be said,
reddendo singula singulis, that the probation officers referred to in section 10 above-quoted are to act as
such, not in the various provinces, but in the central office known as the Probation Office established in
the Department of Justice, under the supervision of a Chief Probation Officer. When the law provides that
"the probation officer" shall investigate and make reports to the court (sees. 1 and 4); that "the probation
officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d) ; that the probationer shall report to
the "probation officer" (sec. 3, par. c), shall allow "the probation officer" to visit him (sec. 3, par. d), shall
truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or
condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms
of probation (sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in
a particular province. It never could have been the intention of the legislature, for instance, to require a
probationer in Batanes, to report to a probation officer in the City of Manila, or to require, a probation
officer in Manila to visit the probationer in the said province of Batanes, to place him under his care, to
supervise his conduct, to instruct him concerning the conditions of his probation or to perform such other
functions as are assigned to him by law.

That under section 10 the Secretary of Justice may appoint as many probation officers as there are
provinces or groups of provinces is, of course, possible. But this would be arguing on what the law may
be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom and
propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is. But much
as has been said regarding progressive interpretation and judicial legislation we decline to amend the
law. We are not permitted to read into the law matters and provisions which are not there. Not for any
purpose—not even to save a statute from the doom of invalidity.

Upon the other hand, the clear intention and policy of the law is not to make the Insular Government
defray the salaries of probation officers in the provinces but to make the provinces defray them should
they desire to have the Probation Act apply thereto. The sum of P50,000 appropriated "to carry out the
purposes of this Act", is to be applied, among other things, for the salaries of probation officers in the
central office at Manila. These probation officers are to receive such compensations as the Secretary of
Justice may fix "until such positions shall have been included in the Appropriation Act". It was not the
intention of the legislature to empower the Secretary of Justice to fix the salaries of probation officers in
the provinces or later on to include said salaries in an appropriation act. Considering, further, that the sum
of P50,000 appropriated in section 10 is to cover, among other things, the salaries of the administrative
personnel of the Probation Office, what would be left of the amount can hardly be said to be sufficient to
pay even nominal salaries to probation officers in the provinces. We take judicial notice of the fact that
there are 48 provinces in the Philippines and we do not think it is seriously contended that, with the fifty
thousand pesos appropriated for the central office, there can be in each province, as intended, a
probation officer with a salary not lower than that of a provincial fiscal. If this is correct, the contention that
without section 11 of Act No. 4221 said act ia complete is an impracticable thing under the remainder of
the Act, unless it is conceded that in our case there can be a system of probation in the provinces without
probation officers.
Probation as a development of modern penology is a commendable system. Probation laws have been
enacted, here and in other countries, to permit what modern criminologists call the "individualization of
punishment", the adjustment of the penalty to the character of the criminal and the circumstances of his
particular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is
believed that, in any cases, convicts may be reformed and their development into hardened criminals
aborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long
as the convict gives promise of reform. (United States vs. Murray' [1925], 275 U. S., 347, 357, 358; 72
Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The welfare of
society is its chief end and aim. The benefit to the individual convict is merely incidental. But while we
believe that probation is commendable as a system and its implantation into the Philippines should be
welcomed, we are forced by our inescapable duty to set the law aside because of repugnancy to our
fundamental law.

In arriving at this conclusion, we have endeavored to consider the different aspects presented by able
counsel for both parties, as well in their memorandums as in their oral argument. We have examined the
cases brought to our attention, and others we have been able to reach in the short time at our command
for the study and deliberation of this case. In the examination of the cases and in the analysis of the legal
principles involved we have inclined to adopt the line of action which in our opinion, is supported by better
reasoned authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad
[1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain
adjudicated cases brought to our attention, except where the point or the principle is settled directly or by
clear implication by the more authoritative pronouncements of the Supreme Court of the United States.
This line of approach is justified because:

(a) The constitutional relations between the Federal and the State governments of the United States and
the dual character of the American Government is a situation which does not obtain in the Philippines;

(b) The, situation of a state of the American Union or of the District of Columbia with reference to the
Federal Government of the. United States is not the situation of a province with respect to the Insular
Government (Art. I, sec. 8, cl. 17, and 1O.h Amendment, Constitution of the United States; Sims vs.
Rives, 84 Fed. [2d], 871) ;

(c) The distinct federal and state judicial organizations of the United States do not embrace the integrated
judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);

(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904],
198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with

* * * new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs.
Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec.
1919, 141, 142), fundamental principles should be interpreted having in view existing local conditions and
environments.
Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly,
granted. Without any pronouncement regarding costs. So ordered.

Avancena, C. J., Imperial, Diaz, and Concepcion, JJ., concur.

 EN BANC

G.R. No. L-29646, November 10, 1978

MAYOR ANTONIO J. VILLEGAS, PETITIONER, VS. HIU CHIONG TSAI PAO HO AND JUDGE
FRANCISCO ARCA, RESPONDENTS.

DECISION

FERNANDEZ, J.:

This is a petition for certiorari to review the decision dated September 17, 1968 of respondent Judge
Francisco Arca of the Court of First Instance of Manila, Branch I, in Civil Case No. 72797, the dispositive
portion of which reads:

"WHEREFORE, judgment is hereby rendered in favor of the petitioner and against the respondents,
declaring Ordinance No. 6537 of the City of Manila null and void. The preliminary injunction is hereby
made permanent. No pronouncement as to cost.

SO ORDERED.

Manila, Philippines, September 17, 1968.

(SGD.) FRANCISCO ARCA

Judge"[1]

The controverted Ordinance No. 6537 was passed by the Municipal Board of Manila on February 22,
1968 and signed by the herein petitioner Mayor Antonio J. Villegas of Manila on March 27, 1968.[2]

City Ordinance No. 6537 is entitled:

"AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A CITIZEN OF THE PHILIPPINES
TO BE EMPLOYED IN ANY PLACE OF EMPLOYMENT OR TO BE ENGAGED IN ANY KIND OF
TRADE, BUSINESS OR OCCUPATION WITHIN THE CITY OF MANILA WITHOUT FIRST SECURING
AN EMPLOYMENT PERMIT FROM THE MAYOR OF MANILA; AND FOR OTHER PURPOSES."[3]
Section 1 of said Ordinance No. 6537[4] prohibits aliens from being employed or to engage or participate
in any position or occupation or business enumerated therein, whether permanent, temporary or casual,
without first securing an employment permit from the Mayor of Manila and paying the permit fee of P50.00
except persons employed in the diplomatic or consular missions of foreign countries, or in the technical
assistance programs of both the Philippine Government and any foreign government, and those working
in their respective households, and members of religious orders or congregations, sect or denomination,
who are not paid monetarily or in kind.

Violations of this ordinance is punishable by an imprisonment of not less than three (3) months to six (6)
months or fine of not less than P100.00 but not more than P200.00 or both such fine and imprisonment,
upon conviction.[5] vOn May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho, who was employed in
Manila, filed a petition with the Court of First Instance of Manila, Branch I, denominated as Civil Case No.
72797, praying for the issuance of the writ of preliminary injunction and restraining order to stop the
enforcement of Ordinance No. 6537 as well as for a judgment declaring said Ordinance No. 6537 null and
void.[6]

In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his grounds for wanting the ordinance
declared null and void:

1. As a revenue measure imposed on aliens employed in the City of Manila,

Ordinance No. 6537 is discriminatory and violative of the rule of the uniformity in
taxation;

2. As a police power measure, it makes no distinction between useful and non-

useful occupations, imposing a fixed P50.00 employment permit, which is out of
proportion to the cost of registration and that it fails to prescribe any standard to
guide and/or limit the action of the Mayor, thus, violating the fundamental
principle on illegal delegation of legislative powers;

3. It is arbitrary, oppressive and unreasonable, being applied only to aliens who are
thus, deprived of their rights to life, liberty and property and therefore, violates
the due process and equal protection clauses of the Constitution.[7]

On May 24, 1968, respondent Judge issued the writ of preliminary injunction and on September 17, 1968
rendered judgment declaring Ordinance No. 6537 null and void and making permanent the writ of
preliminary injunction.[8]
Contesting the aforecited decision of respondent Judge, then Mayor Antonio J. Villegas filed the present
petition on March 27, 1969. Petitioner assigned the following as errors allegedly committed by respondent
Judge in the latter's decision of September 17, 1968:[9]

"I

THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN RULING
THAT ORDINANCE NO. 6537 VIOLATED THE CARDINAL RULE OF UNIFORMITY OF TAXATION.

II

RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND PATENT ERROR OF LAW IN RULING
THAT ORDINANCE NO. 6537 VIOLATED THE PRINCIPLE AGAINST UNDUE DESIGNATION OF
LEGISLATIVE POWER.

III

RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN

RULING THAT ORDINANCE NO. 6537 VIOLATED THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE CONSTITUTION."

Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be declared null and void on the ground
that it violated the rule on uniformity of taxation because the rule on uniformity of taxation applies only to
purely tax or revenue measures and that Ordinance No. 6537 is not a tax or revenue measure but is an
exercise of the police power of the state, it being principally a regulatory measure in nature.

The contention that Ordinance No. 6537 is not a purely tax or revenue measure because its principal
purpose is regulatory in nature has no merit. While it is true that the first part which requires that the alien
shall secure an employment permit from the Mayor involves the exercise of discretion and judgment in
the processing and approval or disapproval of applications for employment permits and therefore is
regulatory in character, the second part which requires the payment of P50.00 as employee's fee is not
regulatory but a revenue measure. There is no logic or justification in exacting P50.00 from aliens who
have been cleared for employment. It is obvious that the purpose of the ordinance is to raise money
under the guise of regulation.

The P50.00 fee is unreasonable not only because it is excessive but because it fails to consider valid sub-
stantial differences in situation among individual aliens who are required to pay it. Although the equal
protection clause of the Constitution does not forbid classification, it is imperative that the classification
should be based on real and substantial differences having a reasonable relation to the subject of the
particular legislation. The same amount of P50.00 is being collected from every employed alien, whether
he is casual or permanent, part time or full time or whether he is a lowly employee or a highly paid
executive.

Ordinance No. 6537 does not lay down any criterion or standard to guide the Mayor in the exercise of his
discretion. It has been held that where an ordinance of a municipality fails to state any policy or to set up
any standard to guide or limit the mayor's action, expresses no purpose to be attained by requiring a
permit, enumerates no conditions for its grant or refusal, and entirely lacks standard, thus conferring upon
the Mayor arbitrary and unrestricted power to grant or deny the issuance of building permits, such
ordinance is invalid, being an undefined and unlimited delegation of power to allow or prevent an activity
per se lawful.[10]

In Chinese Flour Importers Association vs. Price Stabilization Board,[11] where a law granted a
government agency power to determine the allocation of wheat flour among importers, the Supreme
Court ruled against the interpretation of uncontrolled power as it vested in the administrative officer an
arbitrary discretion to be exercised without a policy, rule, or standard from which it can be measured or
controlled.

It was also held in Primicias vs. Fugoso[12] that the authority and discretion to grant and refuse permits of
all classes conferred upon the Mayor of Manila by the Revised Charter of Manila is not uncontrolled dis-
cretion but legal discretion to be exercised within the limits of the law.

Ordinance No. 6537 is void because it does not contain or suggest any standard or criterion to guide the
mayor in the exercise of the power which has been granted to him by the ordinance.

The ordinance in question violates the due process of law and equal protection rule of the Constitution.

Requiring a person before he can be employed to get a permit from the City Mayor of Manila who may
withhold or refuse it at will is tantamount to denying him the basic right of the people in the Philippines to
engage in a means of livelihood. While it is true that the Philippines as a State is not obliged to admit
aliens within its territory, once an alien is admitted, he cannot be deprived of life without due process of
law. This guarantee includes the means of livelihood. The shelter of protection under the due process and
equal protection clause is given to all persons, both aliens and citizens.[13]

The trial court did not commit the errors assigned.

WHEREFORE, the decision appealed from is hereby affirmed, without pronouncement as to costs.

SO ORDERED.

Barredo, Makasiar, Muñoz Palma, Santos, and Guerrero, JJ., concur.

Castro, C.J., Antonio, and Aquino, JJ., in the result.

Fernando, J., concurring in the result, relies primarily on the ultra vires character of the ordinance and
expresses conformity with the concurring opinion of Justice Tehankee.

Teehankee, J., concurs in a separate opinion.

Concepcion, Jr., J., no part.

 G.R. No. 45987, May 05, 1939

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. CAYAT, DEFENDANT AND
APPELLANT.

DECISION

MORAN, J.:

Prosecuted for violation of Act No. 1639 (secs. 2 and 3), the accused, Cayat, a native of Baguio, Benguet,
Mountain Province, was sentenced by the justice of the peace court of Baguio to pay a fine of five pesos
(P5) or suffer subsidiary imprisonment in case of insolvency. On appeal to the Court of First Instance, the
following information was filed against him:

"That on or about the 25th day of January, 1937, in the City of Baguio, Commonwealth of the Philippines,
and within the jurisdiction of this court, the above-named accused, Cayat, being a member of the non-
Christian tribes, did then and there willfully, unlawfully, and illegally receive, acquire, and have in his
possession and under his control or custody, one bottle of A-l-1 gin, an intoxicating liquor, other than the
so-called native wines and liquors which the members of such tribes have been accustomed themselves
to make prior to the passage of Act No. 1639."

Accused interposed a demurrer which was overruled. At the trial, he admitted all the facts alleged in the
information, but pleaded not guilty to the charge for the reasons adduced in his demurrer and submitted
the case on the pleadings. The trial court found him guilty of the crime charged and sentenced him to pay
a fine of fifty pesos (P50) or suffer subsidiary imprisonment in ease of insolvency. The case is now before
this court on appeal. Sections 2 and 3 of Act No. 1639 read:

"SEC. 2. It shall be unlawful for any native of the Philippine Islands who is a member of a non-Christian
tribe within the meaning of Act Numbered Thirteen hundred and ninety-seven, to buy, receive, have in his
possession, or drink any ardent spirits, ale, beer, wine, or intoxicating liquors of any kind, other than the
so-called natives wines and liquors which the members of such tribes have been accustomed themselves
to make prior to the passage of this Act, except as provided in section one hereof; and it shall be the duty
of any police officer or other duly authorized agent of the Insular or any provincial, municipal or township
government to seize and forthwith destroy any such liquors found unlawfully in the possession of any
member of a non-Christian tribe.

"SEC. 3. Any person violating the provisions of section one or section two of this Act shall, upon
conviction thereof, be punishable for each offense by a fine of not exceeding two hundred pesos or by
imprisonment for a term not exceeding six months, in the discretion of the court."

The accused challenges the constitutionality of the Act on the following grounds:

(1) That it is discriminatory and denies the equal protection of the laws;

(2) That it is violative of the due process clause of the Constitution; and
(3) That it is an improper exercise of the police power of the state.

Counsel for the appellant holds out his brief as the "brief for the non-Christian tribes." It is said that as
these less civilized elements of the Filipino population are "jealous of their rights in a democracy," any
attempt to treat them with discrimination or "mark them as inferior or less capable race and less entitled"
will meet with their instant challenge. As the constitutionality of the Act here involved is questioned for
purposes thus mentioned, it becomes imperative to examine and resolve the issues raised in the light of
the policy of the government towards the non-Christian tribes adopted and consistently followed from the
Spanish times to the present, more often with sacrifice and tribulation but always with conscience and
humanity.

As early as 1551, the Spanish Government had assumed an unvarying solicitous attitude towards these
inhabitants, and in the different laws of the Indies, their concentration in so-called "reducciones"
(communities) had been persistently attempted with the end in view of according them the "spiritual and
temporal benefits" of civilized life. Throughout the Spanish regime, it had been regarded by the Spanish
Government as a sacred "duty to conscience and humanity" to civilize these less fortunate people living
"in the obscurity of ignorance" and to accord them the "moral and material advantages" of community life
and the "protection and vigilance afforded them by the same laws." (Decree of the Governor-General of
the Philippines, Jan. 14, 1887.) This policy had not been deflected from during the American period.
President McKinley in his instructions to the Philippine Commission of April 7, 1900, said:

"In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course
followed by Congress in permitting the tribes of our North American Indians to maintain their tribal
organization and government, and under which many of those tribes are now living in peace and
contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal
government should, however, be subjected to wise and firm regulation; and, without undue or petty
interference, constant and active effort should be exercised to prevent barbarous practices and introduce
civilized customs."

Since then and up to the present, the government has been constantly vexed with the problem of
determining "those practicable means of bringing about their advancement in civilization and material
prosperity." (See, Act No. 253.) "Placed in an alternative of either letting them alone or guiding them in the
path of civilization," the present government "has chosen to adopt the latter measure as one more in
accord with humanity and with the national conscience." (Memorandum of Secretary of the Interior,
quoted in Rubi vs. Provincial Board of Mindoro, 39 Phil., 660, 714.) To this end, their homes and firesides
have been brought in contact with civilized communities through a network of highways and
communications; the benefits of public education have to them been extended; and more lately, even the
right of suffrage. And to complement this policy of attraction and assimilation, the Legislature has passed
Act No. 1639 undoubtedly to secure for them the blessings of peace and harmony; to facilitate, and not to
mar, their rapid and steady march to civilization and culture. It is, therefore, in this light that the Act must
be understood and applied.
It is an established principle of constitutional law that the guaranty of the equal protection of the laws is
not violated by a legislation based on reasonable classification. And the classification, to be reasonable,
(1) must rest on substantial distinctions; (2) must be germane to the purposes of the law; (3) must not be
limited to existing conditions only; and (4) must apply equally to all members of the same class. (Borgnis
vs. Falk Co., 133 N. W., 209; Lindsley vs. Natural Carbonic Gas Co., 220 U. S., 61; 55 Law. ed., 369;
Rubi vs. Provincial Board of Mindoro, 39 Phil., 660; People and Hongkong & Shanghai Banking
Corporation vs. Vera and Cu Unjieng, 37 Off. Gaz., 187.)

Act No. 1639 satisfies these requirements. The classification rests on real or substantial, not merely
imaginary or whimsical, distinctions. It is not based upon "accident of birth or parentage," as counsel for
the appellant asserts, but upon the degree of civilization and culture. "The term 'non-Christian tribes'
refers, not to religious belief, but, in a way, to the geographical area, and, more directly, to natives of the
Philippine Islands of a low grade of civilization, usually living in tribal relationship apart from settled
communities." (Rubi vs. Provincial Board of Mindoro, supra.) This distinction is unquestionably
reasonable, for the Act was intended to meet the peculiar conditions existing in the non-Christian tribes.
The exceptional cases of certain members thereof who at present have reached a position of cultural
equality with their Christian brothers, cannot affect the reasonableness of the classification thus
established.

That it is germane to the purposes of law cannot be doubted; The prohibition "to buy, receive, have in his
possession, or drink any ardent spirits, ale, beer, wine, or intoxicating liquors of any kind, other than the
so-called native wines and liquors which the members of such tribes have been accustomed themselves
to make prior to the passage of this Act," is unquestionably designed to insure peace and order in and
among the non-Christian tribes. It has been the sad experience of the past, as the observations of the
lower court disclose, that the free use of highly intoxicating liquors by the non-Christian tribes have often
resulted in lawlessness and crimes, thereby hampering the efforts of the government to raise their
standard of life and civilization.

The law is not limited in its application to conditions existing at the time of its enactment. It is intended to
apply for all times as long as those conditions exist. The Act was not predicated, as counsel for appellant
asserts, upon the assumption that the non-Christians are "impermeable to any civilizing influence." On the
contrary, the Legislature understood that the civilization of a people is a slow process and that hand in
hand with it must go measures of protection and security.

Finally, that the Act applies equally to all members of the class is evident from a perusal thereof. That it
may be unfair in its operation against a certain number of non-Christians by reason of their degree of
culture, is not an argument against the equality of its application.

Appellant contends that that provision of the law empowering any police officer or other duly authorized
agent of the government to seize and forthwith destroy any prohibited liquors found unlawfully in the
possession of any member of the non-Christian tribes is violative of the due process of law provided in
the Constitution. But this provision is not involved in the case at bar. Besides, to constitute due process of
law, notice and hearing are not always necessary. This rule is especially true where much must be left to
the discretion of the administrative officials in applying a law to particular cases. (McGehee, Due Process
of Law, p. 371, cited with approval in Rubi vs. Provincial Board of Mindoro, supra.) Due process of law
means simply: (1) that there shall be a law prescribed in harmony with the general powers of the
legislative department of the government; (2) that it shall be reasonable in its operation ; (3) that it shall
be enforced according to the regular methods of procedure prescribed; and (4) that it shall be applicable
alike to all citizens of the state or to all of a class. (U. S. vs. Ling Su Fan, 10 Phil., 104, affirmed on appeal
by the United States Supreme Court, 218 U. S., 302: 54 Law. ed., 1049.) Thus, a person's property may
be seized by the government in payment of taxes without judicial hearing; or property used in violation of
law may be confiscated (U. S. vs. Surla, 20 Phil., 163, 167), or when the property constitutes corpus
delicti, as in the instant case (Moreno vs. Ago Chi, 12 Phil., 439, 442).

Neither is the Act an improper exercise of the police power of the state. It has been said that the police
power is the most insistent and least limitable of all the powers of the government. It has been aptly
described as a power coextensive with self-protection and constitutes the law of overruling necessity. Any
measure intended to promote the health, peace, morals, education and good order of the people or to
increase the industries of the state, develop its resources and add to its wealth and prosperity (Barbier
vs. Connolly, 113 U. S., 27), is a legitimate exercise of the police power, and unless shown to be
whimsical or capricious as to unduly interfere with the rights of an individual, the same must be upheld.

Act No. 1639, as above stated, is designed to promote peace and order in the non-Christian tribes so as
to remove all obstacles to their moral and intellectual growth and, eventually, to hasten their equalization
and unification with the rest of their Christian brothers. Its ultimate purpose can be no other than to unify
the Filipino people with a view to a greater Philippines,

The law, then, does not seek to mark the non-Christian tribes as "an inferior or less capable race." On
the contrary, all measures thus far adopted in the promotion of the public policy towards them rest upon a
recognition of their inherent right to equality in the enjoyment of those privileges now enjoyed by their
Christian brothers. But as there can be no true equality before the law, if there is, in fact, no equality in
education, the government has endeavored, by appropriate measures, to raise their culture and
civilization and secure for them the benefits of their progress, with the ultimate end in view of placing
them with their Christian brothers on the basis of true equality. It is indeed gratifying' that the non-
Christian tribes "far from retrograding, are definitely asserting themselves in a competitive world," as
appellant's attorney impressively avers, and that they are "a virile, up-and-coming people eager to take
their place in the world's social scheme." As a matter of fact, there are now lawyers, doctors and other
professionals educated in the best institutions here and in America. Their active participation in the
multifarious welfare activities of community life or in the delicate duties of government is certainly a
source of pride and gratification to people of the Philippines. But whether conditions have so changed as
to warrant a partial or complete abrogation of the law, is a matter which rests exclusively within the
prerogative of the National Assembly to determine. In the constitutional scheme of our government, this
court can go no farther than to inquire whether the Legislature had the power to enact the law. If the
power exists, and we hold it does exist, the wisdom of the policy adopted, and the adequacy under
existing conditions of the measures enacted to forward it, are matters which this court has no authority to
pass upon. And, if in the application of the law, the educated non-Christians shall incidentally suffer, the
justification still exists in the all-comprehending principle of salus populi supremo, est lex. When the public
safety or the public morals require the discontinuance of a certain practice by a certain class of persons,
the hand of the Legislature cannot be stayed from providing for its discontinuance by any incidental
inconvenience which some members of the class may suffer. The private interests of such members must
yield to the paramount interests of the nation (Cf. Boston Beer Co. vs. Mass., 97 U. S., 25; 24 Law. ed.,
939).

Judgment is affirmed, with costs against appellant.

Avanceña, C. J., Villa-Real, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.
 EN BANC

G.R. No. L-52245, January 22, 1980

PATRICIO DUMLAO, ROMEO B. IGOT, AND ALFREDO SALAPANTAN, JR., PETITIONERS, VS.
COMMISSION ON ELECTIONS, RESPONDENT.

DECISION

MELENCIO-HERRERA, J.:

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in
their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on
Elections (COMELEC) from implementing certain provisions of Batas Pambansa Blg. 51, 52,and 53 for
being unconstitutional.

The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has
filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30,
1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such,
has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo
Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.

Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as
discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said
Section 4 provides:

"Sec. 4. Special Disqualification - In addition to violation of section 10 of Art. XII-C of the Constitution and
disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the
elective officials enumerated in section 1 hereof,

any retired elective provincial, city or municipal official who has received payment of the retirement
benefits to which is entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected, shall not a qualified to run for the
same elective local office from which he has retired." (Paragraphing and underscoring supplied)

Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the
classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation."

For their part, petitioners Igot and Salapantan, Jr. assail the validity of the following statutory provisions:

"Sec. 7. Term of Office - Unless sooner removed for cause, all local elective officials hereinabove
mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March
1980."
x x x x " (Batas Pambansa Blg. 51)

"Sec. 4 x x x x x

"Any person who has committed any act of disloyalty to the State, including acts amounting to subversion,
insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices
covered by this Act, or to participate in any partisan political activity therein:

provided, that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence
of such fact and

the filing of charges for the commission of such crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie evidence of such fact.

"x x x x (Batas Pambansa Blg. 52) (Paragraphing and underscoring supplied).

"Section 1. Election of certain Local Officials - x x x The election shall be held on January 30, 1980."
(Batas Pambansa, Blg. 52)

"Section 6. Election and Campaign Period - The election period shall be fixed by the Commission on
Elections in accordance with Section 6, Art. XII-C of the constitution. The period of campaign shall
commence on December 29, 1979 and terminate on January 28, 1980." (ibid.)

In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the
accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg.
53, on the ground that it is contrary to section 9(1), Art. XII(C) of the Constitution, which provides that a
"bona fide candidate for any public office shall be free from any form of harassment and discrimination."

The question of accreditation will not be taken up in this case but in that of Bacalso, et als., vs.
COMELEC et als. (G.R. No. L-52232) where the issue has been squarely raised.

Petitioners then pray that the statutory provisions they have challenged be declared null and void for
being violative of the Constitution.

I. The procedural aspect

At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence,
traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions.
Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan. Petitioner Dumlao does not
join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his.
They, respectively, contest completely different statutory provisions. Petitioner Dumlao has joined this suit
in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the
nature of a taxpayer's suit. Although petitioners plead time constraints as the reason of their joint Petition,
it would have required only a modicum more of effort for petitioner Dumlao, on one hand, and petitioners
Igot and Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure.

For another, there are standards that have to be followed in the exercise of the function of judicial review,
namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party
raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity;
and (4) the necessity that the constitutional question be passed upon in order to decide the case (People
vs. Vera, 65 Phil. 56 [1937]):

It may be conceded that the third requisite has been complied with, which is, that the parties have raised
the issue of constitutionality early enough in their pleadings.

This Petition, however, has fallen far short of the other three criteria.

A. Actual case and controversy.

It is basic that the power of judicial review is limited to the determination of actual cases and
controversies.

Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg.
52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and
seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been
adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has
been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this
Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue,
and in effect, a petition for an advisory opinion from this Court to be "rendered without the benefit of a
detailed factual record." Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring
Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent
COMELEC as provided for in section 2, Art. XII-C, of the Constitution, the pertinent portion of which
reads:

"Section 2. The Commission on Elections shall have the following power and functions:

1) x x x

2) Be the sole judge of all contests relating to the elections, returns and qualifications of all members of
the National Assembly and elective provincial and city officials." (Emphasis supplied)

The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:

"Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from his receipt of a copy thereof."

B. Proper party.
The long-standing rule has been that "the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement" (People vs. Vera, supra).

In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot
is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been
convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local
elective positions. Neither one of them has been alleged to have been adversely affected by the operation
of the statutory provisions they assail as unconstitutional. Theirs is a generalized grievance. They have
no personal nor substantial interest at stake. In the absence of any litigable interest, they can claim no
locus standi in seeking judicial redress.

It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the
rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of
Public Works (110 Phil. 331 [1960]), thus:

"x x x it is well settled that the validity of a statute may be contested only by one who will sustain a direct
injury in consequence of its enforcement. Yet, there are many decisions nullifying, at the instance of
taxpayers, laws providing for the disbursement of public funds, upon the theory that 'the expenditure of
public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes
a misapplication of such funds,' which may be enjoined at the request of a taxpayer."

In the same vein, it has been held:

"In the determination of the degree of interest essential to give the requisite standing to attack the
constitutionaltiy of a statute, the general rule is that not only persons individually affected, but also
taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and
they may, therefore, question the constitutionality of statutes requiring expenditure of public moneys."
(Philippine Constitution Association, Inc., et als., vs. Gimenez, et als. (15 SCRA 479 [1965]).

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1,
and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the
elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners
allege that their tax money is "being extracted and spent in violation of specific constitutional protections
against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a
misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110
Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners
seek to restrain respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing
Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a
taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43
SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be entertained.

C. Unavoidability of constitutional question.

Again upon the authority of People vs. Vera, "it is a well-settled 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
in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality
must be the very lis mota presented."

We have already stated that, by the standards set forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually
without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent,
and procedural regularity would require that this suit be dismissed.

II. The substantive viewpoint.

We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being
entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in
Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec
(27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases having been penned by our present
Chief Justice. The reasons which have impelled us are the paramount public interest involved and the
proximity of the elections which will be held only a few days hence.

Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is
belied by the fact that several petitions for the disqualification of other candidates for local positions based
on the challenged provision have already been filed with the COMELEC (as listed in p. 15, respondent's
Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful discrimination.

The assertion that Section 4 of BP Blg. 52 is contrary to the safeguard of equal protection is neither well
taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If
the groupings are based on reasonable and real differentiations, one class can be treated and regulated
differently from another class. For purposes of public service, employees 65 years of age, have been
validly classified differently from younger employees. Employees attaining that age are subject to
compulsory retirement, while those of younger ages are not so compulsorily retirable.

In respect of election to provincial, city, or municipal positions, to require that candidates should not be
more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be
a reasonable classification although, as the Solicitor General has intimated, a good policy of the law
would be to promote the emergence of younger blood in our political elective echelons. On the other
hand, it might be that persons more than 65 years old may also be good elective local officials.

Coming now to the case of retirees. Retirement from government service may or may not be a reasonable
disqualification for elective local officials. For one thing, there can also be retirees from government
service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65-year
old retiree could be a good local official just like one, aged 65, who is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from a provincial, city, or municipal
office, there is reason to disqualify him from running for the same office from which he had retired, as
provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the
retiree for government work is present, and what is emphatically significant is that the retired employee
has already declared himself tired and unavailable for the same government work, but, which, by virtue of
a change of mind, he would like to assume again. It is for this very reason that inequality will neither result
from the application of the challenged provision. Just as that provision does not deny equal protection,
neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated
are similarly treated.

In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What it
proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not
violated by a reasonable classification based upon substantial distinctions, where the classification is
germane to the purpose of the law and applies to all those belonging to the same class (Peralta vs.
Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and
Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong, etc., et al. vs. Hernandez, 101 Phil.
1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments.
The classification in question being pursuant to that purpose, it cannot be considered invalid "even if at
times, it may be susceptible to the objection that it is marred by theoretical inconsistencies" (Chief Justice
Fernando, The Constitution of the Philippines, 1977 ed., p. 547).

There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned
provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically
unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the
Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper
vs. Telfair, 4 Dall. 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the
competence of the legislature to prescribe qualifications for one who desires to become a candidate for
office provided they are reasonable, as in this case.

In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas
Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two parts. The first
provides:

"a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact
x x x x"

It is the opinion of the majority that for failure of petitioners Igot and Salapantan to satisfy the procedural
requisites, we find no necessity at this stage to pass upon the validity of the aforequoted provision.

The situation is different, however, with respect to the second part of the provision, which reads as
follows:
"x x x the filing of charges for the commission of such crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie evidence of such fact."

The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption
of validity that attaches to a challenged statute, of the well-settled principle that "all reasonable doubts
should be resolved in favor of constitutionality," and that Courts will not set aside a statute as
constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold
that this is one such clear case.

Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article
IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous
with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a
candidate is disqualified from running for public office on the ground alone that charges have been filed
against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect,
except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty
and one against whom charges have been filed for such acts, as both of them would be ineligible to run
for public office. A person disqualified to run for public office on the ground that charges have been filed
against him is virtually placed in the same category as a person already convicted of a crime with the
penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office
during the term of the sentence (Art. 44, Revised Penal Code).

And although the filing of charges is considered as but prima facie evidence, and therefore, may be
rebutted, yet, there is "clear and present danger" that because of the proximity of the elections, time
constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the
prima facie evidence against him.

Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather
than before an administrative body such as the COMELEC. A highly possible conflict of findings between
two government bodies, to the extreme detriment of a person charged, will thereby be avoided.
Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for
a judicial determination.

Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion
is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas
Pambansa Blg. 52 which can stand by itself.

WHEREFORE, 1) the first paragraph of section 4 of Batas Pambansa Bilang 52 is hereby declared valid.
Said paragraph reads:

"SEC. 4. Special Disqualification. - In addition to violation of Section 10 of Article XII(C) of the Constitution
and disqualifications mentioned in existing laws which are hereby declared as disqualifications for any of
the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal
official, who has received payment of the retirement benefits to which he is entitled under the law and
who shall have been 65 years of age at the commencement of the term of office to which he seeks to be
elected, shall not be qualified to run for the same elective local office from which he has retired."

2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that "x x x
the filing of charges for the commission of such crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for
being violative of the constitutional presumption of innocence guaranteed to an accused.

SO ORDERED.

Makasiar, Antonio, Concepcion, Jr., Fernandez, and Guerrero, JJ., concur.

Fernando, C.J., concurs and submits a brief separate opinion.
Teehankee, J., files a separate opinion dissenting from the adverse ruling on Dumlao’s candidacy and
declining to rule on the invalidity of the part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is void.
Barredo, J., concurs. But as regards the matter of equal protection, reiterates his view for Peralta that
Sec. 9(1) Art VII is more expensive than equal protection clause.
Aquino, J., concurs in the result as to paragraph 1 of the dispositive part of the decision. Dissents as to
paragraph 2. In his opinion, paragraph 2, Section 4 of Batas Pambansa Bilang 52 is valid, being similar to
certain presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No. 4885.
See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.
Abad Santos, J., concurs but wishes to add that a judgment of conviction as provided in Sec. 4, par. 2 of
Batas Pambansa Blg. 52 should be one which is final and unappealable.
De Castro, J., obtain as far as petitioner Dumlao is concerned.
Santos, J., did not take part.
 EN BANC

G.R. No. 81958, June 30, 1988

PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., PETITIONER, VS. HON. FRANKLIN M.

DRILON AS SECRETARY OF LABOR AND EMPLOYMENT, AND TOMAS D. ACHACOSO, AS
ADMINISTRATOR OF THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION,
RESPONDENTS.

SARMIENTO, J.:

The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged
principally in the recruitment of Filipino workers, male and female, for overseas placement,"[1] challenges
the Constitutional validity of Department Order No. 1, Series of 1988, of the Department of Labor and
Employment, in the character of "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF
DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari
and prohibition. Specifically, the measure is assailed for "discrimination against males or females[2];" that
it "does not apply to all Filipino workers but only to domestic helpers and females with similar skills[3];" and
that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking power,
police power being legislative, and not executive, in character.

In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing for
worker participation "in policy and decision-making processes affecting their rights and benefits as may
be provided by law."[4] Department Order No. 1, it is contended, was passed in the absence of prior
consultations. It is claimed, finally, to be in violation of the Charter's non-impairment clause, in addition to
the "great and irreparable injury" that PASEI members face should the Order be further enforced.

On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and
Administrator of the Philippine Overseas Employment Administration, filed a Comment informing the
Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in the states of
Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and Switzerland.* In
submitting the validity of the challenged "guidelines," the Solicitor General invokes the police power of the
Philippine State.

It is admitted that Department Order No. 1 is in the nature of a police power measure. The only question
is whether or not it is valid under the Constitution.

The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote the
general welfare."5 As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in
order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in
general terms to underscore its all-comprehensive embrace.
"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits."[6]

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter.
Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and
sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital
functions of governance. Marshall, to whom the expression has been credited,[7] refers to it succinctly as
the plenary power of the State "to govern its citizens."[8]

"The police power of the State ... is a power coextensive with self-protection, and it is not inaptly termed
the 'law of overwhelming necessity.' It may be said to be that inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society."[9]

It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the
conception that men in organizing the state and imposing upon its government limitations to safeguard
constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct
unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety,
good order, and welfare."[10] Significantly, the Bill of Rights itself does not purport to bean absolute
guaranty of individual rights and liberties "Even liberty itself, the greatest of all rights, is not unrestricted
license to act according to one's will."[11] It is subject to the far more overriding demands and requirements
of the greater number.

Notwithstanding its extensive sweep, police power is not without its own limitations. For all its awesome
consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that event, it defeats
the purpose for which it is exercised, that is, to advance the public good. Thus, when the power is used to
further private interests at the expense of the citizenry, there is a clear misuse of the power. [12]

In the light of the foregoing, the petition must be dismissed.

As a general rule, official acts enjoy a presumed validity.[13] In the absence of clear and convincing
evidence to the contrary, the presumption logically stands.

The petitioner has shown no satisfactory reason why the contested measure should be nullified. There is
no question that Department Order No. 1 applies only to "female contract workers,"[14] but it does not
thereby make an undue discrimination between the sexes. It is well-settled that "equality before the law"
under the Constitution[15]does not import a perfect identity of rights among all men and women. It admits
of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are
germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply
equally to all members of the same class[16]

The Court is satisfied that the classification made — the preference for female workers — rests on
substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our female
labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not a
few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina
workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are
compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the
Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the
Government's efforts.

The same, however, cannot be said of our male workers. In the first place, there is no evidence that,
except perhaps for isolated instances, our men abroad have been afflicted with an identical
predicament. The petitioner has proffered no argument that the Government should act similarly with
respect to male workers. The Court, of course, is not impressing some male chauvinistic notion that men
are superior to women. What the Court is saying is that it was largely a matter of evidence (that women
domestic workers are being ill-treated abroad in massive instances) and not upon some fanciful or
arbitrary yardstick that the Government acted in this case. It is evidence capable indeed of
unquestionable demonstration and evidence this Court accepts. The Court cannot, however, say the
same thing as far as men are concerned. There is simply no evidence to justify such an inference. Suffice
it to state, then, that insofar as classifications are concerned, this Court is content that distinctions are
borne by the evidence. Discrimination in this case is justified.

As we have furthermore indicated, executive determinations are generally final on the Court. Under a
republican regime, it is the executive branch that enforces policy. For their part, the courts decide, in the
proper cases, whether that policy, or the manner by which it is implemented, agrees with the Constitution
or the laws, but it is not for them to question its wisdom. As a co-equal body, the judiciary has great
respect for determinations of the Chief Executive or his subalterns, especially when the legislature itself
has specifically given them enough room on how the law should be effectively enforced. In the case at
bar, there is no gainsaying the fact, and the Court will deal with this at greater length shortly, that
Department Order No. 1 implements the rule-making powers granted by the Labor Code. But what should
be noted is the fact that in spite of such a fiction of finality, the Court is on its own persuaded that
prevailing conditions indeed call for a deployment ban.

There is likewise no doubt that such a classification is germane to the purpose behind the measure.
Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for
Filipino female overseas workers."[17] This Court has no quarrel that in the midst of the terrible
mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own good and
welfare.

The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so
long as those conditions exist. This is clear from the Order itself ("Pending review of the administrative
and legal measures, in the Philippines and in the host countries . . ."[18] ), meaning to say that should the
authorities arrive at a means impressed with a greater degree of permanency, the ban shall be lifted. As a
stop-gap measure, it is possessed of a necessary malleability, depending on the circumstances of each
case. Accordingly, it provides:
 9. LIFTING OF SUSPENSION. — The Secretary of Labor and
Employment (DOLE) may, upon recommendation of the Philippine
Overseas Employment Administration (POEA), lift the suspension in
countries where there are:

1. Bilateral agreements or understanding with the Philippines,

and/or,

2. Existing mechanisms providing for sufficient safeguards to

ensure the welfare and protection of Filipino workers.[19]

The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas
workers. That it does not apply to "all Filipina workers"[20] is not an argument for unconstitutionality. Had
the ban been given universal applicability, then it would have been unreasonable and arbitrary. For
obvious reasons, not all of them are similarly circumstanced. What the Constitution prohibits is the
singling out of a select person or group of persons within an existing class, to the prejudice of such a
person or group or resulting in an unfair advantage to another person or group of persons. To apply the
ban, say, exclusively to workers deployed by A, but not to those recruited by B, would obviously clash
with the equal protection clause of the Charter. It would be a classic case of what Chase refers to as a
law that "takes property from A and gives it to B."[21] It would be an unlawful invasion of property rights
and freedom of contract and needless to state, an invalid act.[22] (Fernando says: "Where the classification
is based on such distinctions that make a real difference as infancy, sex, and stage of civilization of
minority groups, the better rule, it would seem, is to recognize its validity only if the young, the women,
and the cultural minorities are singled out for favorable treatment. There would be an element of
unreasonableness if on the contrary their status that calls for the law ministering to their needs is made
the basis of discriminatory legislation against them. If such be the case, it would be difficult to refute the
assertion of denial of equal protection."[23] In the case at bar, the assailed Order clearly accords protection
to certain women workers, and not the contrary.)

It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment. From
scattered provisions of the Order, it is evident that such a total ban has not been contemplated. We
quote:

5. AUTHORIZED DEPLOYMENT — The deployment of domestic

helpers and workers of similar skills defined herein to the following
[sic] are authorized under these guidelines and are exempted from
the suspension.
 5.1 Hirings by immediate members of the family of Heads of
State and Government;

5.2 Hirings by Minister, Deputy Minister and the other senior

government officials; and

5.3 Hirings by senior officials of the diplomatic corps and duly

accredited international organizations;

5.4 Hirings by employers in countries with whom the Philippines

have [sic] bilateral labor agreements or understanding.

xxx xxx xxx

7. VACATIONING DOMESTIC HELPERS AND WORKERS OF

SIMILAR SKILLS — Vacationing domestic helpers and/ or workers
of similar skills shall be allowed to process with the POEA and leave
for worksite only if they are returning to the same employer to finish
an existing or partially served employment contract. Those workers
returning to worksite to serve a new employer shall be covered by
the suspension and the provision of these guidelines.

xxx xxx xxx

9. LIFTING OF SUSPENSION — The Secretary of Labor and

Employment (DOLE) may, upon recommendation of the Philippine
Overseas Employment Administration (POEA), lift the suspension in
countries where there are:

1. Bilateral agreements or understanding with the Philippines,

and/or,

2. Existing mechanisms providing for sufficient safeguards to

ensure the welfare and protection of Filipino workers.[24]

xxx xxx xxx

The consequence the deployment ban has on the right to travel does not impair the right. The right to
travel is subject, among other things, to the requirements of "public safety," "as may be provided by
law."[25] Department Order No. 1 is a valid implementation of the Labor Code, in particular, its basic policy
to "afford protection to labor,"[26] pursuant to the respondent Department of Labor's rule-making authority
vested in it by the Labor Code.[27] The petitioner assumes that it is unreasonable simply because of its
impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a
valid qualification thereto.

Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of
legislative power. It is true that police power is the domain of the legislature, but it does not mean that
such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself vests the
Department of Labor and Employment with rule-making powers in the enforcement whereof.[28]

The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-
making processes affecting their rights and benefits[29]." is not well-taken. The right granted by this
provision, again, must submit to the demands and necessities of the State's power of regulation.

The Constitution declares that:

Sec 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and
promote full employment and equality of employment opportunities for all.[30]

"Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution
more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough
that the country has to send its sons and daughters to strange lands because it cannot satisfy their
employment needs at home. Under these circumstances, the Government is duty-bound to insure that
our toiling expatriates have adequate protection, personally and economically, while away from home. In
this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack
or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on
deployment.

The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is
not contested that it has in fact removed the prohibition with respect to certain countries as manifested by
the Solicitor General.

The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier
purposes targetted by the Government.[31] Freedom of contract and enterprise, like all other freedoms, is
not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as
a controlling economic way of life.

This Court understands the grave implications the questioned Order has on the business of recruitment.
The concern of the Government, however, is not necessarily to maintain profits of business firms. In the
ordinary sequence of events, it is profits that suffer as a result of Government regulation. The interest of
the State is to provide a decent living to its citizens. The Government has convinced the Court in this case
that this is its intent. We do not find the impugned Order to be tainted with a grave abuse of discretion to
warrant the extraordinary relief prayed for.
WHEREFORE, the petition is DISMISSED. No costs.

SO ORDERED.

Yap, C. J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes,
and Griño-Aquino, JJ., concur.

Gutierrez, Jr. and Medialdea, JJ., on leave.

 EN BANC

G.R. No. 113811, October 07, 1994

ISHMAEL HIMAGAN, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND HON. JUDGE HILARIO
MAPAYO, RTC, BR. 11, DAVAO CITY, RESPONDENTS.

DECISION

KAPUNAN, J.:

Petitioner, a policeman assigned with the medical company of the Philippine National Police Regional
Headquarters at Camp Catitigan, Davao City, was implicated in the killing of Benjamin Machitar, Jr. and
the attempted murder of Bernabe Machitar. After the informations for murder[1] and attempted murder[2]
were filed with the Regional Trial Court, Branch 11, Davao City, on September 16, 1992, the trial court
issued an Order suspending petitioner until the termination of the case on the basis of Section 47, R.A.
6975, otherwise known as Department of Interior and Local Government Act of 1990, which provides:

SEC. 47. Preventive Suspension Pending Criminal Case. - Upon the filing of a complaint or information
sufficient in form and substance against a member of the PNP for grave felonies where the penalty
imposed by law is six (6) years and one (1) day or more, the court shall immediately suspend the accused
from office until the case is terminated. Such case shall be subject to continuous trial and shall be
terminated within ninety (90) days from arraignment of the accused. (Underscoring ours).

On October 11, 1993, petitioner filed a motion to lift the order for his suspension, [3] relying on Section 42
of P.D. 807 of the Civil Service Decree, that his suspension should be limited to ninety (90) days and,
also, on our ruling in Deloso v. Sandiganbayan,[4] and Layno v. Sandiganbayan.[5] In his order dated
December 14, 1993[6] respondent judge denied the motion pointing out that under Section 47 of R.A.
6975, the accused shall be suspended from office until his case is terminated. The motion for
reconsideration of the order of denial was, likewise, denied.[7] Hence, the petition for certiorari and
mandamus to set aside the orders of respondent Judge and to command him to lift petitioner's preventive
suspension.

We find the petition devoid of merit.

There is no question that the case of petitioner who is charged with murder and attempted murder under
the Revised Penal Code falls squarely under Sec. 47 of RA 6975 which specifically applies to members of
the PNP. In dispute however, is whether the provision limits the period of suspension to 90 days,
considering that while the first sentence of Sec. 47 provides that the accused who is charged with grave
felonies where the penalty imposed is six (6) years and one (1) day shall be suspended from office "until
the case is terminated", the second sentence of the same section mandates that the case, which shall be
subject to continuous trial, shall be terminated within 90 days from the arraignment of the accused.
Petitioner posits that as a member of the Philippine National Police, under Sec. 91 of RA 6975 which
reads:

SEC. 91. The Civil Service Law and its implementing rules and regulations shall apply to all personnel of
the Department.,

he is covered by the Civil Service Law, particularly Sec. 42 of PD 807 of the Civil Service Decree, which
limits the maximum period of suspension to ninety (90) days, thus:

SEC. 42. Lifting of Preventive Suspension Pending Administrative Investigation.- When the administrative
case against the officer or employee under preventive suspension is not finally decided by the disciplining
authority within the period of ninety (90) days after the date of suspension of the respondent who is not a
presidential appointee, the respondent shall be automatically reinstated in the service; Provided, That
when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent,
the period of delay shall not be counted in computing the period of suspension herein provided.

He claims that an imposition of preventive suspension of over 90 days is contrary to the Civil Service Law
and would be a violation of his constitutional right to equal protection of laws. He further asserts that the
requirements in Sec. 47 of R.A. 6975 that "the court shall immediately suspend the accused from office
until the case is terminated" and the succeeding sentence, "Such case shall be subject to continuous trial
and shall be terminated within ninety (90) days from arraignment of the accused" are both substantive
and should be taken together to mean that if the case is not terminated within 90 days, the period of
preventive suspension must be lifted because of the command that the trial must be terminated within
ninety (90) days from arraignment.

We disagree.

First. The language of the first sentence of Sec. 47 of R.A. 6975 is clear, plain and free from ambiguity. It
gives no other meaning than that the suspension from office of the member of the PNP charged with
grave offense where the penalty is six years and one day or more shall last until the termination of the
case. The suspension cannot be lifted before the termination of the case. The second sentence of the
same Section providing that the trial must be terminated within ninety (90) days from arraignment does
not qualify or limit the first sentence. The two can stand independently of each other. The first refers to
the period of suspension. The second deals with the time frame within which the trial should be finished.

Suppose the trial is not terminated within ninety days from arraignment, should the suspension of
accused be lifted? The answer is certainly no. While the law uses the mandatory word "shall" before the
phrase "be terminated within ninety (90) days", there is nothing in R.A. 6975 that suggests that the
preventive suspension of the accused will be lifted if the trial is not terminated within that period.
Nonetheless, the Judge who fails to decide the case within the period without justifiable reason may be
subject to administrative sanctions and, in appropriate cases where the facts so warrant, to criminal[8] or
civil liability.[9] If the trial is unreasonably delayed without fault of the accused such that he is deprived of
his right to a speedy trial, he is not without a remedy. He may ask for the dismissal of the case. Should
the court refuse to dismiss the case, the accused can compel its dismissal by certiorari, prohibition or
mandamus, or secure his liberty by habeas corpus.[10]

Second. Petitioner misapplies Sec. 42 of PD 807. A meticulous reading of the section clearly shows that it
refers to the lifting of preventive suspension in pending administrative investigation, not in criminal cases,
as here. What is more, Section 42 expressly limits the period of preventive suspension to ninety (90)
days. Sec. 91 of R.A. 6975 which states that "The Civil Service Law and its implementing rules shall apply
to all personnel of the Department" simply means that the provisions of the Civil Service Law and its
implementing rules and regulations are applicable to members of the Philippine National Police insofar as
the provisions, rules and regulations are not inconsistent with R.A. 6975. Certainly, Section 42 of the Civil
Service Decree which limits the preventive suspension to ninety (90) days cannot apply to members of
the PNP because Sec. 47 of R.A. 6995 provides differently, that is, the suspension where the penalty
imposed by law exceeds six (6) years shall continue until the case is terminated.

Third. Petitioner's reliance on Layno and Deloso is misplaced. These cases all stemmed from charges in
violation of R.A. 3019 (1060), otherwise known as the Anti-Graft and Corrupt Practices Act which, unlike
R.A. 6975, is silent on the duration of the preventive suspension. Sec. 13 of R.A. 3019 reads as follows:

Suspension and loss of benefits.- Any public officer against whom any criminal prosecution under a valid
information under this Act or under the provisions of the Revised Penal Code on bribery is pending in
court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement
and to the salaries and benefits which he failed to receive during suspension, unless in the meantime
administrative proceedings have been filed against him.

In the case of Layno, the duly elected mayor of Lianga, Surigao del Sur, was preventively suspended
after an information was filed against him for offenses under R.A. 3019 (1060), the Anti-Graft Corrupt
Practices Act. He had been suspended for four (4) months at the time he filed a motion to lift his
preventive suspension. We held that his indefinite preventive suspension violated the "equal protection
clause" and shortened his term of office. Thus:

2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not
expire until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan
according to the Anti-Graft and Corrupt Practices Act, he would have been all this while in the full
discharge of his functions as such municipal mayor. He was elected precisely to do so. As of October 26,
1983, he has been unable to. It is a basic assumption of the electoral process implicit in the right of
suffrage that the people are entitled to the services of elective officials of their choice. For misfeasance or
malfeasance, any of them could, of course, be proceeded against administratively or, as in this instance,
criminally. In either case, his culpability must be established. Moreover, if there be a criminal action, he is
entitled to the constitutional presumption of innocence. A preventive suspension may be justified. Its
continuance, however, for an unreasonable length of time raises a due process question. For even if
thereafter he were acquitted, in the meanwhile his right to hold office had been nullified. Clearly, there
would be in such a case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted
likewise on the people of Lianga. They were deprived of the services of the man they had elected to serve
as mayor. In that sense, to paraphrase Justice Cardozo, the protracted continuance of this preventive
suspension had outrun the bounds of reason and resulted in sheer oppression. A denial of due process is
thus quite manifest. It is to avoid such an unconstitutional application that the order of suspension should
be lifted.

3. Nor is it solely the denial of procedural due process that is apparent. There is likewise an equal
protection question. If the case against petitioner Layno were administrative in character the Local
Government Code would be applicable. It is therein clearly provided that while preventive suspension is
allowable for the causes therein enumerated, there is this emphatic limitation on the duration thereof: "In
all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension." It
may be recalled that the principle against indefinite suspension applies equally to national government
officials. So it was held in the leading case of Garcia v. Hon. Executive Secretary. According to the
opinion of Justice Barrera: "To adopt the theory of respondents that an officer appointed by the President,
facing administrative charges, can be preventively suspended indefinitely, would be to countenance a
situation where the preventive suspension can, in effect, be the penalty itself without a finding of guilt after
due hearing, contrary to the express mandate of the Constitution and the Civil Service law." Further: "In
the guise of a preventive suspension, his term of office could be shortened and he could in effect, be
removed without a finding of a cause duly established after due hearing, in violation of the Constitution.
Clearly then, the policy of the law mandated by the Constitution frowns at a suspension of indefinite
duration. In this particular case, the mere fact that petitioner is facing a charge under the Anti-Graft and
Corrupt Practices Act does not justify a different rule of law. To do so would be to negate the safeguard of
the equal protection guarantee.[11]

The case of Deloso, likewise, involved another elective official who was preventively suspended as
provincial governor, also under RA 3019 the Anti-Graft Law. This Court, faced with similar factual
circumstances as in Layno, applied the ruling in the latter case "in relation to the principles of due process
and equal protection."

It is readily apparent that Section 13 of R.A. 3019 upon which the preventive suspension of the accused
in Layno and Deloso was based is silent with respect to the duration of the preventive suspension, such
that the suspension of the accused therein for a prolonged and unreasonable length of time raised a due
process question. Not so in the instant case. Petitioner is charged with murder under the Revised Penal
Code and it is undisputed that he falls squarely under Sec. 47 of R. A. 6995 which categorically states
that his suspension shall last until the case is terminated. The succeeding sentence of the same section
requires the case to be subjected to continuous trial which shall be terminated within ninety (90) days
from arraignment of the accused. As previously emphasized, nowhere in the law does it say that after the
lapse of the 90-day period for trial, the preventive suspension should be lifted. The law is clear, the ninety
(90) days duration applies to the trial of the case not to the suspension. Nothing else should be read into
the law. When the words and phrases of the statute are clear and unequivocal, their meaning determined
from the language employed and the statute must be taken to mean exactly what it says. [12]
Fourth. From the deliberations of the Bicameral Conference Committee on National Defense relative to
the bill that became R.A. 6975, the meaning of Section 47 of R.A. 6975 insofar as the period of
suspension is concerned becomes all the more clear. We quote:

So other than that in that particular section, ano ba itong ‘Jurisdiction in Criminal Cases?’ What is this all
about?

REP. ZAMORA. In case they are charged with crimes.

THE CHAIRMAN (SEN. MACEDA). Ah, the previous one is administrative, no. Now, if it is charged with a
crime, regular courts.

SEN. GONZALES. Ano, the courts mismo ang magsasabing . . .

THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction.

REP. ZAMORA. The jurisdiction if there is robbery.

THE CHAIRMAN (SEN. MACEDA). Okay. 'Preventive Suspension Pending Criminal Case. Upon the filing
of a complaint or informations sufficient in form and substance against a member of the PNP for grave
felonies where the penalty imposed by law is six years and one day or more, the court shall immediately
suspend the accused from the office until the case is terminated.'

REP. ALBANO. Where are we now Mr. Chairman.

THE CHAIRMAN (SEN. MACEDA). Grave felonies ito e. Six years and one day or more.

SEN. SAGUISAG. Kung five years and litigation ng Supreme Court, ganoon ba and . . . ?

THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong iba panay disciplinary iyon e.

SEN. PIMENTEL. Anong page iyan, Rene?

THE CHAIRMAN (SEN. MACEDA). Page 29 - Preventive Suspension.

REP. GUTANG. Ang complaint kasi ng mga tao, pagka may pulis na may criminal case at may baril pa rin
at nag-uuniforme, hindi magandang tingnan e. So parang natatakot iyong mga witnesses.

SEN. GONZALES. Anyway, kung ma-exempt na rito naman siya e.

REP. GUTANG. Mayroong entitlement to reinstatement and pay. x x x

xxx xxx

SEN. PIMENTEL. Dito sa 'Preventive Suspension Pending Criminal Case.' Okay ito but I think we should
also mandate the early termination of the case. Ibig sabihin, okay, hindi ba 'the suspension of the
accused from office until the case is terminated?' Alam naman natin ang takbo ng mga kaso rito sa ating
bansa e.

REP. ZAMORA. Twenty days, okay na.

SEN. PIMENTEL. Hindi, and ibig kong sabihin, let us just assume that a case can be, as Rene pointed
out, can run to six years bago ma-terminate, sometimes ten years pa nga e. Okay, but maybe we should
mandate...

REP. ZAMORA. Continuous hearing.

SEN. PIMENTEL. Not only that, but the case must be terminated within a period.

REP. ALBANO. Ninety days na ho sa Supreme Court the trial.

SEN. PIMENTEL. Ha?

REP. ALBANO. The trial must be done within ninety days,

SEN. PIMENTEL. Ang ibig kong sabihin kung maaari sanang ilagay rito that the case shall also be
terminated in one year from the time ... aywan ko kung kaya nating gawin iyon.

REP. ALBANO. One solution, Mr. Chairman.

THE CHAIRMAN (SEN. MACEDA). Criminal case? Hindi ba that has all been held as directory even if
you put it in the law?

SEN. PIMENTEL. I know, but, iyon na nga, we are looking at some solution to a particular situation.

SEN. ANGARA. Let's have continuous hearing and be terminated not later than ninety days.

REP. ZAMORA. Ang point ni Ernie, that's really only the directory. All of these, well, looks exactly the
same thing.

SEN. ANGARA. No, but at least, we will shorten it up in a case like this. We are really keen on having it
quick, swift.

SEN. PIMENTEL. Swift justice.

REP. ALBANO. Mr. Chairman.

THE CHAIRMAN. (SEN. MACEDA). Yes.

REP. ALBANO. Following the Veloso case in Anti-graft cases before the Sandiganbayan, the preventive
suspension is only ninety days. In no case shall it go beyond ninety days which can also be applicable
here because this is a preventive suspension.

SEN. PIMENTEL. No, because you can legislate at least.

SEN. SAGUISAG. But then the case may be anti-graft ha. The case filed against a policeman may be
anti-graft in nature...

SEN. PIMENTEL. Correct, correct, but is that a constitutional provision? Is it?

REP. ALBANO. No, but as a standard procedure.

SEN. PIMENTEL. Then you can legislate.

THE CHAIRMAN (SEN. MACEDA). No, because this particular provision is for criminal cases. I know
anti-graft is a criminal case but here we are talking, let's say, of murder, rape, treason, robbery. That's
why it is in that context that there is a difference between a purely anti-graft case and a criminal case
which could be a serious case since it is six years and one day or more, so it must be already a grave
felony.

xxx

REP. ALBANO. . . .

What I mean to say is, preventive suspension, we can use the Veloso case.

THE CHAIRMAN (SEN. MACEDA). No, that's too short, that's what I am saying. The feeling here is, for
policeman, we have to be stricter especially if it is a criminal case.

What Rene is just trying to say is, he is agreeable that the suspension is until the case is terminated, but
he just wants some administrative balancing to expedite it. So let us study what kind of language could be
done along that line. So just on the National Police Commission ...

SEN. ANGARA. Can I suggest a language that may reflect ...

THE CHAIRMAN (SEN MACEDA). Okay, please.

SEN. ANGARA. ‘Such case shall be subject to continuous trial and be terminated not later than …’
whatever we agree.

THE CHAIRMAN (SEN. MACEDA). Okay, so let's study that.

So if there are any further amendments to Chapter 2 on the National Police Commission ……. [13]

The foregoing discussions reveal the legislative intent to place on preventive suspension a member of the
PNP charged with grave felonies where the penalty imposed by law exceeds six years of imprisonment
and which suspension continues until the case against him is terminated.

The reason why members of the PNP are treated differently from the other classes of persons charged
criminally or administratively insofar as the application of the rule on preventive suspension is concerned
is that policemen carry weapons and the badge of the law which can be used to harass or intimidate
witnesses against them, as succinctly brought out in the legislative discussions.

If a suspended policeman criminally charged with a serious offense is reinstated to his post while his case
is pending, his victim and the witnesses against him are obviously exposed to constant threat and thus
easily cowed to silence by the mere fact that the accused is in uniform and armed. The imposition of
preventive suspension for over 90 days under Section 47 of R.A. 6975 does not violate the suspended
policeman's constitutional right to equal protection of the laws.

The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality. Recognizing the existence of real differences among
men, the equal protection clause does not demand absolute equality. It merely requires that all persons
shall be treated alike, under like circumstances and conditions both as to the privileges conferred and
liabilities enforced.[14] Thus, the equal protection clause does not absolutely forbid classifications, such as
the one which exists in the instant case. If the classification is based on real and substantial
differences;[15] is germane to the purpose of the law;[16] applies to all members of the same class;[17] and
applies to current as well as future conditions,[18] the classification may not be impugned as violating the
Constitution's equal protection guarantee. A distinction based on real and reasonable considerations
related to a proper legislative purpose such as that which exists here is neither unreasonable, capricious
nor unfounded.

ACCORDINGLY, the petition is hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, and
Mendoza, JJ., concur.
Feliciano, Padilla, and Bidin, JJ., on leave.
 EN BANC

G.R. No. 189698, February 22, 2010

ELEAZAR P. QUINTO AND GERINO A. TOLENTINO, JR., PETITIONERS, VS. COMMISSION ON

ELECTIONS, RESPONDENT.

RESOLUTION

PUNO, C.J.:

Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on
Elections' (COMELEC) motion for reconsideration, and the movants-intervenors' motions for
reconsideration-in-intervention, of this Court's December 1, 2009 Decision (Decision).[1]

The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and
Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of
Section 13 of Republic Act No. 9369,[2] Section 66 of the Omnibus Election Code[3] and Section 4(a) of
COMELEC Resolution No. 8678,[4] mainly on the ground that they violate the equal protection clause of
the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public
appointive officials to continue discharging the powers, prerogatives and functions of their office
notwithstanding their entry into the political arena.

In support of their respective motions for reconsideration, respondent COMELEC and movants-
intervenors submit the following arguments:

(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the
participation of public appointive officials and members of the military in partisan political activity;

(2) The assailed provisions do not violate the equal protection clause when they accord differential
treatment to elective and appointive officials, because such differential treatment rests on material and
substantial distinctions and is germane to the purposes of the law;

(3) The assailed provisions do not suffer from the infirmity of overbreadth; and

(4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand
such reversal.

We find the foregoing arguments meritorious.

I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the COMELEC's motion for
reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for
reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009
Decision.

i. Timeliness of COMELEC's Motion for Reconsideration

Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,[5] in relation to Section 1, Rule 52 of the
same rules,[6] COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within
which to move for its reconsideration. COMELEC received notice of the assailed Decision on December
2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.

The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The
corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009)
was subsequently filed on December 17, 2009 - still within the reglementary period.

ii. Propriety of the Motions for Reconsideration-in-Intervention

Section 1, Rule 19 of the Rules of Court provides:

A person who has legal interest in the matter in litigation or in the success of either of the parties, or an
interest against both, or is so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original parties, and whether or not the intervenor's rights
may be fully protected in a separate proceeding.

Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when
the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or
interest in the case; and (2) such right or interest cannot be adequately pursued and protected in another
proceeding.[7]

Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for
intervention may be filed, viz.:

SECTION 2. Time to intervene.- The motion for intervention may be filed at any time before rendition of
judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and
served on the original parties. (italics supplied)

This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed
in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to
afford indispensable parties, who have not been impleaded, the right to be heard even after a decision
has been rendered by the trial court,[8] when the petition for review of the judgment has already been
submitted for decision before the Supreme Court,[9] and even where the assailed order has already
become final and executory.[10] In Lim v. Pacquing,[11] the motion for intervention filed by the Republic of
the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all
the substantive issues raised by the parties.

In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the
court[12] after consideration of the appropriate circumstances.[13] We stress again that Rule 19 of the Rules
of Court is a rule of procedure whose object is to make the powers of the court fully and completely
available for justice.[14] Its purpose is not to hinder or delay, but to facilitate and promote the
administration of justice.[15]

We rule that, with the exception of the IBP - Cebu City Chapter, all the movants-intervenors may properly
intervene in the case at bar.

First, the movants-intervenors have each sufficiently established a substantial right or interest in the case.

As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009
Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that
involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust
and confidence of the public in its system of government.

On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May
2010 elections running against appointive officials who, in view of the December 1, 2009 Decision, have
not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly
injured by the assailed Decision, unless it is reversed.

Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and
protected in another proceeding. Clearly, their rights will be foreclosed if this Court's Decision attains
finality and forms part of the laws of the land.

With regard to the IBP - Cebu City Chapter, it anchors its standing on the assertion that "this case
involves the constitutionality of elections laws for this coming 2010 National Elections," and that "there is
a need for it to be allowed to intervene xxx so that the voice of its members in the legal profession would
also be heard before this Highest Tribunal as it resolves issues of transcendental importance."[16]

Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to
present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at
bar. Its invoked interest is, in character, too indistinguishable to justify its intervention.

We now turn to the substantive issues.

 II.
Substantive Issues

The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third
paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the
following grounds:

(1) They violate the equal protection clause of the Constitution because of the differential treatment of
persons holding appointive offices and those holding elective positions;

(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts:
(a) without distinction as to whether or not they occupy high/influential positions in the government, and
(b) they limit these civil servants' activity regardless of whether they be partisan or nonpartisan in
character, or whether they be in the national, municipal or barangay level; and

(3) Congress has not shown a compelling state interest to restrict the fundamental right of these public
appointive officials.

We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66
of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369
are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.

III.
Section 4(a) of COMELEC Resolution 8678 Compliant with Law

Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and
jurisprudence on the matter, viz.:

Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the
Omnibus Election Code, any person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and employees in government-owned or -
controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his
certificate of candidacy.

Incumbent Elected Official. - Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair
Election Act,[17] which repealed Section 67 of the Omnibus Election Code[18] and rendered ineffective
Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the
campaign period corresponding to the positions for which they are running,[19] an elected official is not
deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any
other elected office or position. In fine, an elected official may run for another position without forfeiting his
seat.
These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits
civil service officers and employees from engaging in any electioneering or partisan political campaign.

The intention to impose a strict limitation on the participation of civil service officers and employees in
partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the Constitutional Commission is instructive:

MS. QUESADA.

xxxx

Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No
officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity."
This is almost the same provision as in the 1973 Constitution. However, we in the government service
have actually experienced how this provision has been violated by the direct or indirect partisan political
activities of many government officials.

So, is the Committee willing to include certain clauses that would make this provision more strict, and
which would deter its violation?

MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are
more than exhaustive enough to really prevent officers and employees in the public service from
engaging in any form of partisan political activity. But the problem really lies in implementation because, if
the head of a ministry, and even the superior officers of offices and agencies of government will
themselves violate the constitutional injunction against partisan political activity, then no string of words
that we may add to what is now here in this draft will really implement the constitutional intent against
partisan political activity. x x x[20] (italics supplied)

To emphasize its importance, this constitutional ban on civil service officers and employees is presently
reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55,
Chapter 8 - both of Subtitle A, Title I, Book V of the Administrative Code of 1987 - respectively provide in
relevant part:

Section 44. Discipline: General Provisions:

xxxx

(b) The following shall be grounds for disciplinary action:

xxxx
(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.

xxxx

Section 55. Political Activity. -- No officer or employee in the Civil Service including members of the
Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any
election except to vote nor shall he use his official authority or influence to coerce the political activity of
any other person or body. Nothing herein provided shall be understood to prevent any officer or employee
from expressing his views on current political problems or issues, or from mentioning the names of his
candidates for public office whom he supports: Provided, That public officers and employees holding
political offices may take part in political and electoral activities but it shall be unlawful for them to solicit
contributions from their subordinates or subject them to any of the acts involving subordinates prohibited
in the Election Code.

Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by
civil service officers and employees in partisan political activities an election offense, viz.:

SECTION 261. Prohibited Acts. -- The following shall be guilty of an election offense:

xxxx

(i) Intervention of public officers and employees. -- Any officer or employee in the civil service, except
those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines,
or any police force, special forces, home defense forces, barangay self-defense units and all other para-
military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in
any election campaign or engages in any partisan political activity, except to vote or to preserve public
order, if he is a peace officer.

The intent of both Congress and the framers of our Constitution to limit the participation of civil service
officers and employees in partisan political activities is too plain to be mistaken.

But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil
servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected
officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or controlled
corporations with original charters."[21] This is because elected public officials, by the very nature of their
office, engage in partisan political activities almost all year round, even outside of the campaign period.[22]
Political partisanship is the inevitable essence of a political office, elective positions included. [23]

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as
express their views on political issues, or mention the names of certain candidates for public office whom
they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.:

MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4,
lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING
AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word
CAMPAIGN.

May I be allowed to explain my proposed amendment?

THE PRESIDING OFFICER (Mr. Treñas): Commissioner Aquino may proceed.

MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was
adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a
guarantee to the right to vote but as a qualification of the general prohibition against taking part in
elections.

Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it
will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right.
In other words, the Legislature can always pass a statute which can withhold from any class the right to
vote in an election, if public interest so required. I would only like to reinstate the qualification by
specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from
participating in partisan political campaigns or electioneering may vote.

MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on
the part of the Committee to disenfranchise any government official or employee. The elimination of the
last clause of this provision was precisely intended to protect the members of the civil service in the sense
that they are not being deprived of the freedom of expression in a political contest. The last phrase or
clause might have given the impression that a government employee or worker has no right whatsoever
in an election campaign except to vote, which is not the case. They are still free to express their views
although the intention is not really to allow them to take part actively in a political campaign.[24]

IV.

Section 4(a) of Resolution 8678, Section 13 of RA 9369, and

Section 66 of the Omnibus Election Code Do Not Violate the
Equal Protection Clause

We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the
second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection
clause of the Constitution.
 i. Fariñas, et al. v. Executive Secretary, et al. is Controlling

In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged
in the case at bar violate the equal protection clause of the Constitution in Fariñas, et al. v. Executive
Secretary, et al.[25]

In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of
the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates
against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in
respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso
facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since
Section 66 was not repealed, the limitation on appointive officials continues to be operative - they are
deemed resigned when they file their certificates of candidacy.

The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the end in
view of having the deemed-resigned provisions "apply equally" to both elected and appointive officials.
We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as
there are material and significant distinctions between the two classes of officials. Consequently, the
contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus
Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled:

The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to
elective officials gives undue benefit to such officials as against the appointive ones and violates the
equal protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable
classification. If the groupings are characterized by substantial distinctions that make real differences, one
class may be treated and regulated differently from the other. The Court has explained the nature of the
equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is
limited either in the object to which it is directed or by territory within which it is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated alike,
under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making
a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy
their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and
may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold
their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold
their office in a permanent capacity and are entitled to security of tenure while others serve at the
pleasure of the appointing authority.

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No.
292), appointive officials, as officers and employees in the civil service, are strictly prohibited from
engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same
provision, elective officials, or officers or employees holding political offices, are obviously expressly
allowed to take part in political and electoral activities.

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it
proper to treat these two classes of officials differently with respect to the effect on their tenure in the
office of the filing of the certificates of candidacy for any position other than those occupied by them.
Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-à-vis
appointive officials, is anchored upon material and significant distinctions and all the persons belonging
under the same classification are similarly treated, the equal protection clause of the Constitution is, thus,
not infringed.[26]

The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision
gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This
doctrine, which is really "adherence to precedents," mandates that once a case has been decided one
way, then another case involving exactly the same point at issue should be decided in the same
manner.[27] This doctrine is one of policy grounded on the necessity for securing certainty and stability of
judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the
Judicial Process:

It will not do to decide the same question one way between one set of litigants and the opposite way
between another. "If a group of cases involves the same point, the parties expect the same decision. It
would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against
me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and wrong in my breast; it would be an infringement,
material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception
if litigants are to have faith in the even-handed administration of justice in the courts.[28]

Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot be
minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues
presented by the case cannot be considered as obiter dictum.[29] This rule applies to all pertinent
questions that are presented and resolved in the regular course of the consideration of the case and lead
up to the final conclusion, and to any statement as to the matter on which the decision is predicated. [30]
For that reason, a point expressly decided does not lose its value as a precedent because the disposition
of the case is, or might have been, made on some other ground; or even though, by reason of other
points in the case, the result reached might have been the same if the court had held, on the particular
point, otherwise than it did.[31] As we held in Villanueva, Jr. v. Court of Appeals, et al.:[32]

... A decision which the case could have turned on is not regarded as obiter dictum merely because,
owing to the disposal of the contention, it was necessary to consider another question, nor can an
additional reason in a decision, brought forward after the case has been disposed of on one ground, be
regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient
to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative
precedent as to every point decided, and none of such points can be regarded as having the status of a
dictum, and one point should not be denied authority merely because another point was more dwelt on
and more fully argued and considered, nor does a decision on one proposition make statements of the
court regarding other propositions dicta.[33] (italics supplied)

ii. Classification Germane to the Purposes of the Law

The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.

To start with, the equal protection clause does not require the universal application of the laws to all
persons or things without distinction.[34] What it simply requires is equality among equals as determined
according to a valid classification.[35] The test developed by jurisprudence here and yonder is that of
reasonableness,[36] which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[37]

Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third
and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential
treatment of appointive officials vis-à-vis elected officials is not germane to the purpose of the law,
because "whether one holds an appointive office or an elective one, the evils sought to be prevented by
the measure remain," viz.:

... For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the
same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent
past, elected Vice-Presidents were appointed to take charge of national housing, social welfare
development, interior and local government, and foreign affairs). With the fact that they both head
executive offices, there is no valid justification to treat them differently when both file their [Certificates of
Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example,
running this time, let us say, for President, retains his position during the entire election period and can
still use the resources of his office to support his campaign.[38]
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the
Legislature need not address every manifestation of the evil at once; it may proceed "one step at a
time."[39] In addressing a societal concern, it must invariably draw lines and make choices, thereby
creating some inequity as to those included or excluded.[40] Nevertheless, as long as "the bounds of
reasonable choice" are not exceeded, the courts must defer to the legislative judgment.[41] We may not
strike down a law merely because the legislative aim would have been more fully achieved by expanding
the class.[42] Stated differently, the fact that a legislative classification, by itself, is underinclusive will not
render it unconstitutionally arbitrary or invidious.[43] There is no constitutional requirement that regulation
must reach each and every class to which it might be applied;[44] that the Legislature must be held rigidly
to the choice of regulating all or none.

Thus, any person who poses an equal protection challenge must convincingly show that the law creates a
classification that is "palpably arbitrary or capricious."[45] He must refute all possible rational bases for the
differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,[46]
such that the constitutionality of the law must be sustained even if the reasonableness of the classification
is "fairly debatable."[47] In the case at bar, the petitioners failed - and in fact did not even attempt - to
discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even
while we submitted the following thesis:

... [I]t is not sufficient grounds for invalidation that we may find that the statute's distinction is unfair,
underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that
there is no reasonably rational reason for the differing treatment.[48]

In the instant case, is there a rational justification for excluding elected officials from the operation of the
deemed resigned provisions? I submit that there is.

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power
of the people.[49] It involves the choice or selection of candidates to public office by popular vote.[50]
Considering that elected officials are put in office by their constituents for a definite term, it may
justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost
respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will
of the electorate that they be served by such officials until the end of the term for which they were elected.
In contrast, there is no such expectation insofar as appointed officials are concerned.

The dichotomized treatment of appointive and elective officials is therefore germane to the
purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and
discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial
scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest
of deferring to the sovereign will.[51] (emphasis in the original)

In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law
that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a
situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and
elected officials, over another in which a significant portion thereof is contained. The absurdity of that
position is self-evident, to say the least.

The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials
(vis-à-vis appointive officials) have greater political clout over the electorate, is indeed a matter worth
exploring - but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the
Legislature that is given the authority, under our constitutional system, to balance competing interests and
thereafter make policy choices responsive to the exigencies of the times. It is certainly within the
Legislature's power to make the deemed-resigned provisions applicable to elected officials, should it later
decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in
favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain
and impose on the people the best state of affairs from a public policy standpoint.

iii. Mancuso v. Taft Has Been Overruled

Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted
to, and extensively cited, Mancuso v. Taft.[52] This was a decision of the First Circuit of the United States
Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory
provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:

(1) The right to run for public office is "inextricably linked" with two fundamental freedoms - freedom of
expression and association;

(2) Any legislative classification that significantly burdens this fundamental right must be subjected to
strict equal protection review; and

(3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work
force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to
render them unconstitutional.

It then concluded with the exhortation that since "the Americans, from whom we copied the provision in
question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we,
too, should follow suit."

Our assailed Decision's reliance on Mancuso is completely misplaced. We cannot blink away the fact
that the United States Supreme Court effectively overruled Mancuso three months after its
promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al.
v. National Association of Letter Carriers AFL-CIO, et al.[53] and Broadrick, et al. v. State of
Oklahoma, et al.,[54] the United States Supreme Court was faced with the issue of whether statutory
provisions prohibiting federal[55] and state[56] employees from taking an active part in political management
or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these
provisions results in dismissal from employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal protection clause. It held that (i) in
regulating the speech of its employees, the state as employer has interests that differ significantly from
those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore
balance the legitimate interest of employee free expression against the interests of the employer in
promoting efficiency of public services; (iii) if the employees' expression interferes with the maintenance
of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the
Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered by
any statutory restrictions.[57] Therefore, insofar as government employees are concerned, the correct
standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness
of fit between the governmental interests and the prohibitions in question.[58]

Letter Carriers elucidated on these principles, as follows:

Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan
political activities by federal employees must be limited if the Government is to operate effectively and
fairly, elections are to play their proper part in representative government, and employees themselves are
to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are
not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the
type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to
control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.

But, as the Court held in Pickering v. Board of Education,[59] the government has an interest in regulating
the conduct and `the speech of its employees that differ(s) significantly from those it possesses in
connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at
a balance between the interests of the (employee), as a citizen, in commenting upon matters of public
concern and the interest of the (government), as an employer, in promoting the efficiency of the public
services it performs through its employees.' Although Congress is free to strike a different balance than it
has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important
interests sought to be served by the limitations on partisan political activities now contained in the Hatch
Act.

It seems fundamental in the first place that employees in the Executive Branch of the Government, or
those working for any of its agencies, should administer the law in accordance with the will of Congress,
rather than in accordance with their own or the will of a political party. They are expected to enforce the
law and execute the programs of the Government without bias or favoritism for or against any political
party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of
Government-the impartial execution of the laws-it is essential that federal employees, for example, not
take formal positions in political parties, not undertake to play substantial roles in partisan political
campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce
the hazards to fair and effective government.

There is another consideration in this judgment: it is not only important that the Government and its
employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be
avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous
extent.

Another major concern of the restriction against partisan activities by federal employees was perhaps the
immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly
expanding Government work force should not be employed to build a powerful, invincible, and perhaps
corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that
these dangers were sufficiently real that substantial barriers should be raised against the party in power-
or the party out of power, for that matter-using the thousands or hundreds of thousands of federal
employees, paid for at public expense, to man its political structure and political campaigns.

A related concern, and this remains as important as any other, was to further serve the goal that
employment and advancement in the Government service not depend on political performance, and at
the same time to make sure that Government employees would be free from pressure and from express
or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their
superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are
sufficient protection; but for many years the joint judgment of the Executive and Congress has been that
to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is
not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the
hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the
Chairman of the Civil Service Commission stated that `the prohibitions against active participation in
partisan political management and partisan political campaigns constitute the most significant safeguards
against coercion . . ..' Perhaps Congress at some time will come to a different view of the realities of
political life and Government service; but that is its current view of the matter, and we are not now in any
position to dispute it. Nor, in our view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities is absolute in any event. [60] x x
x

xxxx

As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of
Congress, so as to comport with constitutional limitations. (italics supplied)

Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible,
viz.:

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political
conduct of state employees. Appellants freely concede that such restrictions serve valid and important
state interests, particularly with respect to attracting greater numbers of qualified people by insuring their
job security, free from the vicissitudes of the elective process, and by protecting them from `political
extortion.' Rather, appellants maintain that however permissible, even commendable, the goals of s 818
may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to
distinguish between conduct that may be proscribed and conduct that must be permitted. For these and
other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and
cannot be enforced against them or anyone else.

We have held today that the Hatch Act is not impermissibly vague.[61] We have little doubt that s 818 is
similarly not so vague that `men of common intelligence must necessarily guess at its meaning.'[62]
Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give
adequate warning of what activities it proscribes or fails to set out `explicit standards' for those who must
apply it. In the plainest language, it prohibits any state classified employee from being `an officer or
member' of a `partisan political club' or a candidate for `any paid public office.' It forbids solicitation of
contributions `for any political organization, candidacy or other political purpose' and taking part `in the
management or affairs of any political party or in any political campaign.' Words inevitably contain germs
of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818
as `partisan,' or `take part in,' or `affairs of' political parties. But what was said in Letter Carriers, is
applicable here: `there are limitations in the English language with respect to being both specific and
manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding
fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can
sufficiently understand and comply with, without sacrifice to the public interest.' x x x

xxxx

[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well
as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any
constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked
in this manner here.

xxxx

The consequence of our departure from traditional rules of standing in the First Amendment area is that
any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting
construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to
constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly,
strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x

x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as
the otherwise unprotected behavior that it forbids the State to sanction moves from `pure speech' toward
conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that
reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally
unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some
unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify
invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that
is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and
not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is
not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-
case analysis of the fact situations to which its sanctions, assertedly, may not be applied.

Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its
terms, at political expression which if engaged in by private persons would plainly be protected by the
First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at
particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed
and neutral manner. As indicted, such statutes have in the past been subject to a less exacting
overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct
that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was
established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter
Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it
forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other
partisan political purposes; becoming members of national, state, or local committees of political parties,
or officers or committee members in partisan political clubs, or candidates for any paid public office;
taking part in the management or affairs of any political party's partisan political campaign; serving as
delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part
in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a
partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature;
initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan
political candidate.

x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other
improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto
because some persons' arguably protected conduct may or may not be caught or chilled by the statute.
Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics
supplied)

It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles
enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be
interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were
decided based on a different set of facts," viz.:

In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to
enforce, the Hatch Act's prohibition against "active participation in political management or political
campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get
federal employees to run for state and local offices, to participate as delegates in party conventions, and
to hold office in a political club.
In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic)
Oklahoma's Merit System of Personnel Administration Act restricting the political activities of the State's
classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities
of federal employees. Prior to the commencement of the action, the appellants actively participated in the
1970 reelection campaign of their superior, and were administratively charged for asking other
Corporation Commission employees to do campaign work or to give referrals to persons who might help
in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign
posters in bulk.

Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth
Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed as a
candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of
Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter.

Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a
different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso.
x x x (italics in the original)

We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim,
Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws,
viz.:

(1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative
to the Rhode Island General Assembly. He assailed the constitutionality of §14.09(c) of the City Home
Rule Charter, which prohibits "continuing in the classified service of the city after becoming a candidate
for nomination or election to any public office."

(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act's prohibition against "active participation in political management or
political campaigns"[63] with respect to certain defined activities in which they desired to engage. The
plaintiffs relevant to this discussion are:

(a) The National Association of Letter Carriers, which alleged that its members were desirous of, among
others, running in local elections for offices such as school board member, city council member or mayor;

(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough
Councilman in his local community for fear that his participation in a partisan election would endanger his
job; and

(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan
election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job
by reason of violation of the Hatch Act.
The Hatch Act defines "active participation in political management or political campaigns" by cross-
referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:

30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or
municipal office is not permissible. The prohibition against political activity extends not merely to formal
announcement of candidacy but also to the preliminaries leading to such announcement and to
canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The
fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in
furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against
political activity. (italics supplied)

Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds
thereafter to pay compensation to these persons.[64]

(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of
unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma's Merit System of Personnel
Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that "[n]o employee
in the classified service shall be ... a candidate for nomination or election to any paid public office..."
Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited
state employment ineligibility.

Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By
no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and Broadrick (i)
concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United
States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals - the same court
that decided Mancuso - to hold categorically and emphatically in Magill v. Lynch[65] that Mancuso is
no longer good law. As we priorly explained:

Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket's "Little Hatch
Act" prohibits city employees from engaging in a broad range of political activities. Becoming a candidate
for any city office is specifically proscribed,[66] the violation being punished by removal from office or
immediate dismissal. The firemen brought an action against the city officials on the ground that that the
provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers
and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed
that the view that political candidacy was a fundamental interest which could be infringed upon
only if less restrictive alternatives were not available, was a position which was no longer viable,
since the Supreme Court (finding that the government's interest in regulating both the conduct
and speech of its employees differed significantly from its interest in regulating those of the
citizenry in general) had given little weight to the argument that prohibitions against the coercion
of government employees were a less drastic means to the same end, deferring to the judgment of
Congress, and applying a "balancing" test to determine whether limits on political activity by
public employees substantially served government interests which were "important" enough to
outweigh the employees' First Amendment rights.[67]

It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was
characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that
case, that politically active bureaucrats might use their official power to help political friends and hurt
political foes. Ruled the court:

The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy
in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent
Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v.
Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers
reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal
employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its
holding to Oklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft,
we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter
Carriers and Broadrick compel new analysis.

xxxx

What we are obligated to do in this case, as the district court recognized, is to apply the Court's interest
balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district
court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We
have particular reference to our view that political candidacy was a fundamental interest which could be
trenched upon only if less restrictive alternatives were not available. While this approach may still be
viable for citizens who are not government employees, the Court in Letter Carriers recognized that the
government's interest in regulating both the conduct and speech of its employees differs significantly from
its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell
"unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the
coercion of government employees were a less drastic means to the same end, deferring to the judgment
of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's approach
as "some sort of 'balancing' process".[68] It appears that the government may place limits on campaigning
by public employees if the limits substantially serve government interests that are "important" enough to
outweigh the employees' First Amendment rights. x x x (italics supplied)

Upholding thus the constitutionality of the law in question, the Magill court detailed the major
governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as
follows:

In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to
the Congress rather than to party. The district court discounted this interest, reasoning that candidates in
a local election would not likely be committed to a state or national platform. This observation
undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different
kind of possible political intrusion into efficient administration could be thought to threaten municipal
government: not into broad policy decisions, but into the particulars of administration favoritism in minute
decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning,
licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest
in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in
avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance
(or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan
character of the formal election process. Where, as here, party support is a key to successful
campaigning, and party rivalry is the norm, the city might reasonably fear that politically active
bureaucrats would use their official power to help political friends and hurt political foes. This is not to say
that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of
all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is
less, for neither friend nor foe is as easily identified.

A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful
political machine. The Court had in mind the large and growing federal bureaucracy and its partisan
potential. The district court felt this was only a minor threat since parties had no control over nominations.
But in fact candidates sought party endorsements, and party endorsements proved to be highly effective
both in determining who would emerge from the primary election and who would be elected in the final
election. Under the prevailing customs, known party affiliation and support were highly significant factors
in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public
work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the
reins of power. In municipal elections especially, the small size of the electorate and the limited powers of
local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a
partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government
employees may seek to influence voters or their co-workers improperly; but a more real danger is that a
central party structure will mass the scattered powers of government workers behind a single party
platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable,
especially because the political views of individual employees may balance each other out. But party
discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees
pressured into advancing their immediate superior's political ambitions, the entire government work force
may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a
continuing presence in political campaigns, a carefully orchestrated use of city employees in support of
the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of
Pawtucket's nominating procedure or the lack of party labels on its ballots.

The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve
advancement on their merits and that they be free from both coercion and the prospect of favor from
political activity. The district court did not address this factor, but looked only to the possibility of a civil
servant using his position to influence voters, and held this to be no more of a threat than in the most
nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains
as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and
coordinated exploitation of public servants for political ends that a legislature is most likely to see as the
primary threat of employees' rights. Political oppression of public employees will be rare in an entirely
nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even
in a nonpartisan context, but without party officials looking over their shoulders most supervisors will
prefer to let employees go their own ways.

In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan
elections if political parties play a large role in the campaigns. In the absence of substantial party
involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their
force. While the employees' First Amendment rights would normally outbalance these diminished
interests, we do not suggest that they would always do so. Even when parties are absent, many
employee campaigns might be thought to endanger at least one strong public interest, an interest that
looms larger in the context of municipal elections than it does in the national elections considered in
Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his
superior or running for a position that confers great power over his superior. An employee of a federal
agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline
of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal
discussion, cliques, and political bargaining, should an employee gather substantial political support, are
considerable. (citations omitted)

The court, however, remanded the case to the district court for further proceedings in respect of the
petitioners' overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken
lightly, much less to be taken in the dark," the court held:

The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely
analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally
unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at
unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to
distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first
inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were
subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for
political candidates and becoming a candidate. The Court found that this combination required a
substantial overbreadth approach. The facts of this case are so similar that we may reach the same result
without worrying unduly about the sometimes opaque distinction between speech and conduct.

The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute
restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan
campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia,
a rough balancing of the number of valid applications compared to the number of potentially invalid
applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not
deserve as much weight as one that is probable. The question is a matter of degree; it will never be
possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad.
Still, an overbreadth challenger has a duty to provide the court with some idea of the number of
potentially invalid applications the statute permits. Often, simply reading the statute in the light of common
experience or litigated cases will suggest a number of probable invalid applications. But this case is
different. Whether the statute is overbroad depends in large part on the number of elections that are
insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the
city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record
suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other
cities. School committee candidates, for example, are endorsed by the local Democratic committee.

The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken
lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period
before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well
feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that
the charter forecloses access to a significant number of offices, the candidacy for which by municipal
employees would not pose the possible threats to government efficiency and integrity which Letter
Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of
plaintiffs' overbreadth claim. (italics supplied, citations omitted)

Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft,
heavily relied upon by the ponencia, has effectively been overruled.[69] As it is no longer good law,
the ponencia's exhortation that "[since] the Americans, from whom we copied the provision in question,
had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too,
should follow suit" is misplaced and unwarranted.[70]

Accordingly, our assailed Decision's submission that the right to run for public office is "inextricably linked"
with two fundamental freedoms - those of expression and association - lies on barren ground. American
case law has in fact never recognized a fundamental right to express one's political views through
candidacy,[71] as to invoke a rigorous standard of review.[72] Bart v. Telford[73] pointedly stated that
"[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that
it does not do so by implication either." Thus, one's interest in seeking office, by itself, is not entitled to
constitutional protection.[74] Moreover, one cannot bring one's action under the rubric of freedom of
association, absent any allegation that, by running for an elective position, one is advancing the political
ideas of a particular set of voters.[75]

Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are
not violative of the equal protection clause. The deemed-resigned provisions substantially serve
governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than
to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of
a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and
that they be free from both coercion and the prospect of favor from political activity). These are interests
that are important enough to outweigh the non-fundamental right of appointive officials and employees to
seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing[76] and Morial, et
al. v. Judiciary Commission of the State of Louisiana, et al.[77] to buttress his dissent. Maintaining that
resign-to-run provisions are valid only when made applicable to specified officials, he explains:

...U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when
applied to specified or particular officials, as distinguished from all others,[78] under a classification
that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a
general and sweeping provision, and thus did not violate the test of being germane to the purpose
of the law, the second requisite for a valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. (emphasis in the original)

This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in
these cases were upheld not because they referred to specified or particular officials (vis-à-vis a general
class); the questioned provisions were found valid precisely because the Court deferred to legislative
judgment and found that a regulation is not devoid of a rational predicate simply because it
happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the
claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run
provisions, while others are not. Ruled the United States Supreme Court:

Article XVI, § 65, of the Texas Constitution provides that the holders of certain offices automatically resign
their positions if they become candidates for any other elected office, unless the unexpired portion of the
current term is one year or less. The burdens that § 65 imposes on candidacy are even less substantial
than those imposed by § 19. The two provisions, of course, serve essentially the same state interests.
The District Court found § 65 deficient, however, not because of the nature or extent of the provision's
restriction on candidacy, but because of the manner in which the offices are classified. According to the
District Court, the classification system cannot survive equal protection scrutiny, because Texas has
failed to explain sufficiently why some elected public officials are subject to § 65 and why others are not.
As with the case of § 19, we conclude that § 65 survives a challenge under the Equal Protection Clause
unless appellees can show that there is no rational predicate to the classification scheme.

The history behind § 65 shows that it may be upheld consistent with the "one step at a time" approach
that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than
that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a transitional provision
applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the
provision from two to four years. The provision also staggered the terms of other offices so that at least
some county and local offices would be contested at each election. The automatic resignation proviso to
§ 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI,
§ 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11
allows home rule cities the option of extending the terms of municipal offices from two to up to four years.

Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958.
That the State did not go further in applying the automatic resignation provision to those officeholders
whose terms were not extended by § 11 or § 65, absent an invidious purpose, is not the sort of
malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is
not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection
Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office
unless and until it places similar restrictions on other officeholders. The provision's language and its
history belie any notion that § 65 serves the invidious purpose of denying access to the political process
to identifiable classes of potential candidates. (citations omitted and italics supplied)

Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of
restrictions on the right of public employees to become candidates for public office" out of context. A
correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that
case, as each equal protection challenge would necessarily have to involve weighing governmental
interests vis-à-vis the specific prohibition assailed. The Court held:

The interests of public employees in free expression and political association are unquestionably entitled
to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to
imply that public employees may be prohibited from expressing their private views on controversial topics
in a manner that does not interfere with the proper performance of their public duties. In today's decision,
there is no blanket approval of restrictions on the right of public employees to become candidates for
public office. Nor do we approve any general restrictions on the political and civil rights of judges in
particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement
that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably
necessary relation to the achievement of the state's interest in preventing the actuality or appearance of
judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free
expression and association nor the fourteenth amendment's guarantee of equal protection of the laws.
(italics supplied)

Indeed, the Morial court even quoted Broadrick and stated that:

In any event, the legislature must have some leeway in determining which of its employment positions
require restrictions on partisan political activities and which may be left unregulated. And a State can
hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations
omitted)

V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
Do Not Suffer from Overbreadth

Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the
Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being
overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due
regard for the type of position being held by the employee seeking an elective post and the degree of
influence that may be attendant thereto;[79] and

(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions
without due regard for the type of office being sought, whether it be partisan or nonpartisan in character,
or in the national, municipal or barangay level.

Again, on second look, we have to revise our assailed Decision.

i. Limitation on Candidacy Regardless of

Incumbent Appointive Official's Position, Valid

According to the assailed Decision, the challenged provisions of law are overly broad because they apply
indiscriminately to all civil servants holding appointive posts, without due regard for the type of position
being held by the employee running for elective office and the degree of influence that may be attendant
thereto.

Its underlying assumption appears to be that the evils sought to be prevented are extant only when the
incumbent appointive official running for elective office holds an influential post.

Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government
posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse
perpetuated by a "powerful political machine" that has amassed "the scattered powers of government
workers" so as to give itself and its incumbent workers an "unbreakable grasp on the reins of power."[80]
As elucidated in our prior exposition:[81]

Attempts by government employees to wield influence over others or to make use of their respective
positions (apparently) to promote their own candidacy may seem tolerable - even innocuous - particularly
when viewed in isolation from other similar attempts by other government employees. Yet it would be
decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such
seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging
central party structure to advance its own agenda through a "carefully orchestrated use of [appointive
and/or elective] officials" coming from various levels of the bureaucracy.

...[T]he avoidance of such a "politically active public work force" which could give an emerging political
machine an "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the
candidacies of all appointive public officials without further distinction as to the type of positions being
held by such employees or the degree of influence that may be attendant thereto. (citations omitted)
 ii. Limitation on Candidacy
Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly broad because they are
made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the
type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.

This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the
temptations it fosters are sufficiently different from those involved in an office removed from regular party
politics [so as] to warrant distinctive treatment,"[82] so that restrictions on candidacy akin to those imposed
by the challenged provisions can validly apply only to situations in which the elective office sought is
partisan in character. To the extent, therefore, that such restrictions are said to preclude even
candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as
overbroad.

Again, a careful study of the challenged provisions and related laws on the matter will show that the
alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated,
viz.:

A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer
to the filing of certificates of candidacy and nomination of official candidates of registered political
parties, in connection with the May 10, 2010 National and Local Elections.[83] Obviously, these rules
and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for
purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly
partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the
candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local
Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable.

Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in
conjunction with other related laws on the matter, will confirm that these provisions are likewise not
intended to apply to elections for nonpartisan public offices.

The only elections which are relevant to the present inquiry are the elections for barangay offices, since
these are the only elections in this country which involve nonpartisan public offices.[84]

In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in
1985, Congress has intended that these nonpartisan barangay elections be governed by special rules,
including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election
Code. Said provision states:
Section 39. Certificate of Candidacy. - No person shall be elected punong barangay or kagawad ng
sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the
commencement of the election period but not later than the day before the beginning of the campaign
period in a form to be prescribed by the Commission. The candidate shall state the barangay office for
which he is a candidate.

xxxx

Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or
military service, including those in government-owned or-controlled corporations, shall be considered
automatically resigned upon the filing of certificate of candidacy for a barangay office.

Since barangay elections are governed by a separate deemed resignation rule, under the present state of
law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus
Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a
partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus
[85]
Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail.

In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus
Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also
to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we
explained:

In the first place, the view that Congress is limited to controlling only partisan behavior has not received
judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that
the government has an interest in regulating the conduct and speech of its employees that differs
significantly from those it possesses in connection with regulation of the speech of the citizenry in
general.[86]

Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly
broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth
must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. [87]

In operational terms, measuring the substantiality of a statute's overbreadth would entail, among other
things, a rough balancing of the number of valid applications compared to the number of potentially
invalid applications.[88] In this regard, some sensitivity to reality is needed; an invalid application that is far-
fetched does not deserve as much weight as one that is probable.[89] The question is a matter of
degree.[90] Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and
necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack,
the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of
the number of potentially invalid elections (i.e. the number of elections that were insulated from party
rivalry but were nevertheless closed to appointive employees) that may in all probability result from the
enforcement of the statute.[91]

The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of
Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the dark, [92]
especially since an overbreadth finding in this case would effectively prohibit the State from `enforcing an
otherwise valid measure against conduct that is admittedly within its power to proscribe.'[93]

This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of
the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the
exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be
used sparingly, and only as a last resort.[94]

In the United States, claims of facial overbreadth have been entertained only where, in the judgment of
the court, the possibility that protected speech of others may be muted and perceived grievances left to
fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to
society in allowing some unprotected speech or conduct to go unpunished.[95] Facial overbreadth has
likewise not been invoked where a limiting construction could be placed on the challenged statute, and
where there are readily apparent constructions that would cure, or at least substantially reduce, the
alleged overbreadth of the statute. [96]

In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in
office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably
protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.

In this light, the conceivably impermissible applications of the challenged statutes - which are, at best,
bold predictions - cannot justify invalidating these statutes in toto and prohibiting the State from enforcing
them against conduct that is, and has for more than 100 years been, unquestionably within its power and
interest to proscribe.[97] Instead, the more prudent approach would be to deal with these conceivably
impermissible applications through case-by-case adjudication rather than through a total invalidation of
the statute itself.[98]

Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already
filed their Certificates of Candidacy without relinquishing their posts.[99] Several COMELEC election
officers had likewise filed their Certificates of Candidacy in their respective provinces.[100] Even the
Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon
province last December 14, 2009[101] - even as her position as Justice Secretary includes supervision
over the City and Provincial Prosecutors,[102] who, in turn, act as Vice-Chairmen of the respective
Boards of Canvassers.[103] The Judiciary has not been spared, for a Regional Trial Court Judge in the
South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in
their favor.

For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369,
which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad.

IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent's and the intervenors' Motions for
Reconsideration; REVERSE and SET ASIDE this Court's December 1, 2009 Decision; DISMISS the
Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of
COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic
Act No. 9369, and (3) Section 66 of the Omnibus Election Code.

SO ORDERED.

Del Castillo, Abad, Villarama, Jr., Perez, and Mendoza, JJ., concur.
Carpio, J., see concurring opinion.
Corona, Velasco, Jr., Leonardo-De Castro, and Bersamin, JJ., joins the dissent of Justice Nachura.
Carpio Morales, J., concur in accordance with my dissents to the original ponencia.
Nachura, J., please see dissent.
Brion, J., I concur.
Peralta, J., certify that J. Peralta voted in favor of this Resolution.
 EN BANC

G.R. No. 192935, December 07, 2010

LOUIS "BAROK" C. BIRAOGO, PETITIONER, VS. THE PHILIPPINE TRUTH COMMISSION OF 2010,
RESPONDENT.

[G.R. NO. 193036]

REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, AND
REP. ORLANDO B. FUA, SR.,PETITIONERS, VS. EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR. AND DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO B. ABAD,
RESPONDENTS.

DECISION

MENDOZA, J.:

When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over
the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts
the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them.

--- Justice Jose P. Laurel[1]

The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental
powers of government are established, limited and defined, and by which these powers are distributed
among the several departments.[2] The Constitution is the basic and paramount law to which all other laws
must conform and to which all persons, including the highest officials of the land, must defer.[3]
Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be
simply made to sway and accommodate the call of situations and much more tailor itself to the whims and
caprices of government and the people who run it.[4]

For consideration before the Court are two consolidated cases[5] both of which essentially assail the
validity and constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating the
Philippine Truth Commission of 2010."

The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis
Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for
being violative of the legislative power of Congress under Section 1, Article VI of the Constitution[6] as it
usurps the constitutional authority of the legislature to create a public office and to appropriate funds
therefor.[7]

The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by
petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr.
(petitioners-legislators) as incumbent members of the House of Representatives.

The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections,
when then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption
with his slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity
and of his ability to carry out this noble objective, catapulted the good senator to the presidency.

To transform his campaign slogan into reality, President Aquino found a need for a special body to
investigate reported cases of graft and corruption allegedly committed during the previous administration.

Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1
establishing the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:

EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the
principle that a public office is a public trust and mandates that public officers and employees, who are
servants of the people, must at all times be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious
violation of this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social
life of a nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized
and underprivileged sector of society;

WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the people's
trust and confidence in the Government and its institutions;

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large
scale graft and corruption in the government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from committing the evil, restore the
people's faith and confidence in the Government and in their public servants;
WHEREAS, the President's battlecry during his campaign for the Presidency in the last elections "kung
walang corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and
the evil it breeds;

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases of graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;

WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, gives the President the continuing authority to reorganize
the Office of the President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby order:

SECTION 1. Creation of a Commission. - There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that
shock and offend the moral and ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served without fear or favor.

The Commission shall be composed of a Chairman and four (4) members who will act as an independent
collegial body.

SECTION 2. Powers and Functions. - The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred
to in Section 1, involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the Ombudsman.

In particular, it shall:

a) Identify and determine the reported cases of such graft and corruption which it will investigate;

b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or employee of
the Executive Branch, including government-owned or controlled corporations, to produce documents,
books, records and other papers;

c) Upon proper request or representation, obtain information and documents from the Senate and the
House of Representatives records of investigations conducted by committees thereof relating to matters
or subjects being investigated by the Commission;

d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;

e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths or
affirmations as the case may be;

f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure that the
ends of justice be fully served, that such person who qualifies as a state witness under the Revised Rules
of Court of the Philippines be admitted for that purpose;

g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial authorities, by
means of a special or interim report and recommendation, all evidence on corruption of public officers and
employees and their private sector co-principals, accomplices or accessories, if any, when in the course
of its investigation the Commission finds that there is reasonable ground to believe that they are liable for
graft and corruption under pertinent applicable laws;

h) Call upon any government investigative or prosecutorial agency such as the Department of Justice or
any of the agencies under it, and the Presidential Anti-Graft Commission, for such assistance and
cooperation as it may require in the discharge of its functions and duties;

i) Engage or contract the services of resource persons, professionals and other personnel determined by
it as necessary to carry out its mandate;

j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence;

k) Exercise such other acts incident to or are appropriate and necessary in connection with the objectives
and purposes of this Order.

SECTION 3. Staffing Requirements. - x x x.

SECTION 4. Detail of Employees. - x x x.

SECTION 5. Engagement of Experts. - x x x

SECTION 6. Conduct of Proceedings. - x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. - x x x.

SECTION 8. Protection of Witnesses/Resource Persons. - x x x.

SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. - Any government official or
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce
documents for inspection, when required, shall be subject to administrative disciplinary action. Any private
person who does the same may be dealt with in accordance with law.

SECTION 10. Duty to Extend Assistance to the Commission. - x x x.

SECTION 11. Budget for the Commission. - The Office of the President shall provide the necessary funds
for the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties
and responsibilities as effectively, efficiently, and expeditiously as possible.

SECTION 12. Office. - x x x.

SECTION 13. Furniture/Equipment. - x x x.

SECTION 14. Term of the Commission. - The Commission shall accomplish its mission on or before
December 31, 2012.

SECTION 15. Publication of Final Report. - x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. - x x x.

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there
is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.

SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same
shall not affect the validity and effectivity of the other provisions hereof.

SECTION 19. Effectivity. - This Executive Order shall take effect immediately.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III

By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary

Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere
ad hoc body formed under the Office of the President with the primary task to investigate reports of graft
and corruption committed by third-level public officers and employees, their co-principals, accomplices
and accessories during the previous administration, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman. Though it has been described as an
"independent collegial body," it is essentially an entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a public office, as an ad hoc body is one.[8]

To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All
it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It
may have subpoena powers but it has no power to cite people in contempt, much less order their
arrest. Although it is a fact-finding body, it cannot determine from such facts if probable cause exists as
to warrant the filing of an information in our courts of law. Needless to state, it cannot impose criminal,
civil or administrative penalties or sanctions.

The PTC is different from the truth commissions in other countries which have been created as official,
transitory and non-judicial fact-finding bodies "to establish the facts and context of serious violations of
human rights or of international humanitarian law in a country's past."[9] They are usually established by
states emerging from periods of internal unrest, civil strife or authoritarianism to serve as mechanisms for
transitional justice.

Truth commissions have been described as bodies that share the following characteristics: (1) they
examine only past events; (2) they investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that finish their work with the submission of a
report containing conclusions and recommendations; and (4) they are officially sanctioned, authorized or
empowered by the State.[10] "Commission's members are usually empowered to conduct research,
support victims, and propose policy recommendations to prevent recurrence of crimes. Through their
investigations, the commissions may aim to discover and learn more about past abuses, or formally
acknowledge them. They may aim to prepare the way for prosecutions and recommend institutional
reforms."[11]

Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime
tribunals are examples of a retributory or vindicatory body set up to try and punish those responsible for
crimes against humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission of
South Africa, the principal function of which was to heal the wounds of past violence and to prevent future
conflict by providing a cathartic experience for victims.

The PTC is a far cry from South Africa's model. The latter placed more emphasis on reconciliation than
on judicial retribution, while the marching order of the PTC is the identification and punishment of
perpetrators. As one writer[12] puts it:

The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural
speech: "To those who talk about reconciliation, if they mean that they would like us to simply forget
about the wrongs that they have committed in the past, we have this to say: There can be no
reconciliation without justice. When we allow crimes to go unpunished, we give consent to their occurring
over and over again."

The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it
unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The petitioners-legislators
summarized them in the following manner:

(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a
public office and appropriate funds for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize
E.O. No. 1 because the delegated authority of the President to structurally reorganize the Office of the
President to achieve economy, simplicity and efficiency does not include the power to create an entirely
new public office which was hitherto inexistent like the "Truth Commission."

(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the "Truth
Commission" with quasi-judicial powers duplicating, if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution and the Department of Justice created under the
Administrative Code of 1987.

(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and
prosecution officials and personnel of the previous administration as if corruption is their peculiar species
even as it excludes those of the other administrations, past and present, who may be indictable.

(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and general
international practice of four decades wherein States constitute truth commissions to exclusively
investigate human rights violations, which customary practice forms part of the generally accepted
principles of international law which the Philippines is mandated to adhere to pursuant to the Declaration
of Principles enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in partisan hostility, a
launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly impress the
people that widespread poverty will altogether vanish if corruption is eliminated without even addressing
the other major causes of poverty.

(g) The mere fact that previous commissions were not constitutionally challenged is of no moment
because neither laches nor estoppel can bar an eventual question on the constitutionality and validity of
an executive issuance or even a statute."[13]

In their Consolidated Comment,[14] the respondents, through the Office of the Solicitor General (OSG),
essentially questioned the legal standing of petitioners and defended the assailed executive order with
the following arguments:

1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the President's
executive power and power of control necessarily include the inherent power to conduct investigations to
ensure that laws are faithfully executed and that, in any event, the Constitution, Revised Administrative
Code of 1987 (E.O. No. 292), [15] Presidential Decree (P.D.) No. 1416[16] (as amended by P.D. No. 1772),
R.A. No. 9970,[17] and settled jurisprudence that authorize the President to create or form such bodies.

2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no
appropriation but a mere allocation of funds already appropriated by Congress.

3] The Truth Commission does not duplicate or supersede the functions of the Office of the Ombudsman
(Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body and not a quasi-
judicial body and its functions do not duplicate, supplant or erode the latter's jurisdiction.

4] The Truth Commission does not violate the equal protection clause because it was validly created for
laudable purposes.

The OSG then points to the continued existence and validity of other executive orders and presidential
issuances creating similar bodies to justify the creation of the PTC such as Presidential Complaint and
Action Commission (PCAC) by President Ramon B. Magsaysay, Presidential Committee on
Administrative Performance Efficiency (PCAPE) by President Carlos P. Garcia and Presidential Agency
on Reform and Government Operations (PARGO) by President Ferdinand E. Marcos.[18]

From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be
resolved:

1. Whether or not the petitioners have the legal standing to file their respective petitions and question
Executive Order No. 1;

2. Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the
powers of Congress to create and to appropriate funds for public offices, agencies and commissions;

3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ;

4. Whether or not Executive Order No. 1 violates the equal protection clause; and

5. Whether or not petitioners are entitled to injunctive relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs
to ascertain whether the requisites for a valid exercise of its power of judicial review are present.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations,
to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have the standing to question the validity of the subject act or issuance;
otherwise stated, he must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota
of the case.[19]

Among all these limitations, only the legal standing of the petitioners has been put at issue.

Legal Standing of the Petitioners

The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to
demonstrate their personal stake in the outcome of the case. It argues that the petitioners have not
shown that they have sustained or are in danger of sustaining any personal injury attributable to the
creation of the PTC. Not claiming to be the subject of the commission's investigations, petitioners will not
sustain injury in its creation or as a result of its proceedings.[20]

The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to assail
Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the Congress
as a body to which they belong as members. This certainly justifies their resolve to take the cudgels for
Congress as an institution and present the complaints on the usurpation of their power and rights as
members of the legislature before the Court. As held in Philippine Constitution Association v. Enriquez,[21]

To the extent the powers of Congress are impaired, so is the power of each member thereof, since his
office confers a right to participate in the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.

Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by
the Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any
official action which, to their mind, infringes on their prerogatives as legislators.[22]

With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation
of the PTC and the budget for its operations.[23] It emphasizes that the funds to be used for the creation
and operation of the commission are to be taken from those funds already appropriated by Congress.
Thus, the allocation and disbursement of funds for the commission will not entail congressional action but
will simply be an exercise of the President's power over contingent funds.

As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of
sustaining, any personal and direct injury attributable to the implementation of Executive Order No. 1.
Nowhere in his petition is an assertion of a clear right that may justify his clamor for the Court to exercise
judicial power and to wield the axe over presidential issuances in defense of the Constitution. The case
of David v. Arroyo[24] explained the deep-seated rules on locus standi. Thus:

Locus standi is defined as "a right of appearance in a court of justice on a given question." In private
suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every action must be prosecuted or
defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the
party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of
the suit." Succinctly put, the plaintiff's standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public
right" in assailing an allegedly illegal official action, does so as a representative of the general public. He
may be a person who is affected no differently from any other person. He could be suing as a "stranger,"
or in the category of a "citizen," or `taxpayer." In either case, he has to adequately show that he is entitled
to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The
distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer's suit
is in a different category from the plaintiff in a citizen's suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel Case v. Collins: "In matter of mere public right,
however...the people are the real parties...It is at least the right, if not the duty, of every citizen to interfere
and see that a public offence be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer's suits, Terr v. Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official policy or act
with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent "direct injury" test in Ex Parte
Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a private individual to invoke
the judicial power to determine the validity of an executive or legislative action, he must show that he
has sustained a direct injury as a result of that action, and it is not sufficient that he has a general
interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person
who impugns the validity of a statute must have "a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers' Association v.
De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.
[Emphases included. Citations omitted]

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when
the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."[25]

Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirements may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming the
right of judicial review. In the first Emergency Powers Cases,[27] ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders although they had only an indirect and
general interest shared in common with the public.

The OSG claims that the determinants of transcendental importance[28] laid down in CREBA v. ERC and
Meralco[29] are non-existent in this case. The Court, however, finds reason in Biraogo's assertion that the
petition covers matters of transcendental importance to justify the exercise of jurisdiction by the
Court. There are constitutional issues in the petition which deserve the attention of this Court in view of
their seriousness, novelty and weight as precedents. Where the issues are of transcendental and
paramount importance not only to the public but also to the Bench and the Bar, they should be resolved
for the guidance of all.[30] Undoubtedly, the Filipino people are more than interested to know the status of
the President's first effort to bring about a promised change to the country. The Court takes cognizance
of the petition not due to overwhelming political undertones that clothe the issue in the eyes of the public,
but because the Court stands firm in its oath to perform its constitutional duty to settle legal controversies
with overreaching significance to society.

Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office and
not merely an adjunct body of the Office of the President.[31] Thus, in order that the President may create
a public office he must be empowered by the Constitution, a statute or an authorization vested in him by
law. According to petitioner, such power cannot be presumed[32] since there is no provision in the
Constitution or any specific law that authorizes the President to create a truth commission. [33] He adds
that Section 31 of the Administrative Code of 1987, granting the President the continuing authority to
reorganize his office, cannot serve as basis for the creation of a truth commission considering the
aforesaid provision merely uses verbs such as "reorganize," "transfer," "consolidate," "merge," and
"abolish."[34] Insofar as it vests in the President the plenary power to reorganize the Office of the President
to the extent of creating a public office, Section 31 is inconsistent with the principle of separation of
powers enshrined in the Constitution and must be deemed repealed upon the effectivity thereof.[35]

Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within
the province of Congress and not with the executive branch of government. They maintain that the
delegated authority of the President to reorganize under Section 31 of the Revised Administrative Code:
1) does not permit the President to create a public office, much less a truth commission; 2) is limited to
the reorganization of the administrative structure of the Office of the President; 3) is limited to the
restructuring of the internal organs of the Office of the President Proper, transfer of functions and transfer
of agencies; and 4) only to achieve simplicity, economy and efficiency.[36] Such continuing authority of the
President to reorganize his office is limited, and by issuing Executive Order No. 1, the President
overstepped the limits of this delegated authority.

The OSG counters that there is nothing exclusively legislative about the creation by the President of a
fact-finding body such as a truth commission. Pointing to numerous offices created by past presidents, it
argues that the authority of the President to create public offices within the Office of the President Proper
has long been recognized.[37] According to the OSG, the Executive, just like the other two branches of
government, possesses the inherent authority to create fact-finding committees to assist it in the
performance of its constitutionally mandated functions and in the exercise of its administrative
functions.[38] This power, as the OSG explains it, is but an adjunct of the plenary powers wielded by the
President under Section 1 and his power of control under Section 17, both of Article VII of the
Constitution.[39]

It contends that the President is necessarily vested with the power to conduct fact-finding investigations,
pursuant to his duty to ensure that all laws are enforced by public officials and employees of his
department and in the exercise of his authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of his officials. [40] The power of the
President to investigate is not limited to the exercise of his power of control over his subordinates in the
executive branch, but extends further in the exercise of his other powers, such as his power to discipline
subordinates,[41] his power for rule making, adjudication and licensing purposes[42] and in order to be
informed on matters which he is entitled to know.[43]

The OSG also cites the recent case of Banda v. Ermita,[44] where it was held that the President has the
power to reorganize the offices and agencies in the executive department in line with his constitutionally
granted power of control and by virtue of a valid delegation of the legislative power to reorganize
executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For
the OSG, the President may create the PTC in order to, among others, put a closure to the reported large
scale graft and corruption in the government.[45]

The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the
power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31
contemplates "reorganization" as limited by the following functional and structural lines: (1) restructuring
the internal organization of the Office of the President Proper by abolishing, consolidating or merging
units thereof or transferring functions from one unit to another; (2) transferring any function under the
Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency
under the Office of the President to any other Department/Agency or vice versa. Clearly, the provision
refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions. These point to situations where a body or an office is already existent but a
modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned,
much less envisioned in said provision. Accordingly, the answer to the question is in the negative.

To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a
misplaced supposition, even in the plainest meaning attributable to the term "restructure"- an "alteration of
an existing structure." Evidently, the PTC was not part of the structure of the Office of the President prior
to the enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive
Secretary,[46]

But of course, the list of legal basis authorizing the President to reorganize any department or agency in
the executive branch does not have to end here. We must not lose sight of the very source of the power -
that which constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292
(otherwise known as the Administrative Code of 1987), "the President, subject to the policy in the
Executive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing
authority to reorganize the administrative structure of the Office of the President." For this purpose, he
may transfer the functions of other Departments or Agencies to the Office of the President. In Canonizado
v. Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or redundancy of functions." It takes
place when there is an alteration of the existing structure of government offices or units therein,
including the lines of control, authority and responsibility between them. The EIIB is a bureau
attached to the Department of Finance. It falls under the Office of the President. Hence, it is subject to the
President's continuing authority to reorganize. [Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the President's power of control. Control is
essentially the power to alter or modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with that of the latter.[47] Clearly,
the power of control is entirely different from the power to create public offices. The former is inherent in
the Executive, while the latter finds basis from either a valid delegation from Congress, or his inherent
duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress, empowering the President to
create a public office?

According to the OSG, the power to create a truth commission pursuant to the above provision finds
statutory basis under P.D. 1416, as amended by P.D. No. 1772.[48] The said law granted the President the
continuing authority to reorganize the national government, including the power to group, consolidate
bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services
and activities, transfer appropriations, and to standardize salaries and materials. This decree, in relation
to Section 20, Title I, Book III of E.O. 292 has been invoked in several cases such as Larin v. Executive
Secretary.[49]

The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a
public office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation
to then President Marcos of the authority to reorganize the administrative structure of the national
government including the power to create offices and transfer appropriations pursuant to one of the
purposes of the decree, embodied in its last "Whereas" clause:

WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the
organization of the national government.

Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D.
No. 1416, as amended by P.D. No. 1772, became functus oficio upon the convening of the First
Congress, as expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the
Solicitor General agrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last
whereas clause of P.D. 1416 says "it was enacted to
prepare the transition from presidential to
parliamentary. Now, in a parliamentary form of
government, the legislative and executive powers
are fused, correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would
you agree with me that P.D. 1416 should not be
considered effective anymore upon the
promulgation, adoption, ratification of the 1987
Constitution.

SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire
National Government is deemed repealed, at least,
upon the adoption of the 1987 Constitution, correct.

SOLICITOR GENERAL CADIZ: Yes, Your Honor.[50]

While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as
amended by P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of the
Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed. Section
17 reads:

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed. (Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power in the three principal branches of
government is a grant of all powers inherent in them. The President's power to conduct investigations to
aid him in ensuring the faithful execution of laws - in this case, fundamental laws on public accountability
and transparency - is inherent in the President's powers as the Chief Executive. That the authority of the
President to conduct investigations and to create bodies to execute this power is not explicitly mentioned
in the Constitution or in statutes does not mean that he is bereft of such authority.[51] As explained in the
landmark case of Marcos v. Manglapus:[52]

x x x. The 1987 Constitution, however, brought back the presidential system of government and restored
the separation of legislative, executive and judicial powers by their actual distribution among three distinct
branches of government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and whatever powers inhere in such positions
pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides
that the execution of the laws is only one of the powers of the President. It also grants the President
other powers that do not involve the execution of any provision of law, e.g., his power over the country's
foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated.

It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated
above, the powers of the President are not limited to those specific powers under the Constitution. [53] One
of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the
power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if
laws have been faithfully executed. Thus, in Department of Health v. Camposano,[54] the authority of the
President to issue Administrative Order No. 298, creating an investigative committee to look into the
administrative charges filed against the employees of the Department of Health for the anomalous
purchase of medicines was upheld. In said case, it was ruled:

The Chief Executive's power to create the Ad hoc Investigating Committee cannot be
doubted. Having been constitutionally granted full control of the Executive Department, to which
respondents belong, the President has the obligation to ensure that all executive officials and employees
faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is
sustained. Such validity is not affected by the fact that the investigating team and the PCAGC had the
same composition, or that the former used the offices and facilities of the latter in conducting the inquiry.
[Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an
inquiry into matters which the President is entitled to know so that he can be properly advised and guided
in the performance of his duties relative to the execution and enforcement of the laws of the land. And if
history is to be revisited, this was also the objective of the investigative bodies created in the past like the
PCAC, PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa
Commission. There being no changes in the government structure, the Court is not inclined to declare
such executive power as non-existent just because the direction of the political winds have changed.

On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for
the operation of a public office, suffice it to say that there will be no appropriation but only an allotment or
allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the
Executive of the power of Congress to appropriate funds. Further, there is no need to specify the amount
to be earmarked for the operation of the commission because, in the words of the Solicitor General,
"whatever funds the Congress has provided for the Office of the President will be the very source of the
funds for the commission."[55] Moreover, since the amount that would be allocated to the PTC shall be
subject to existing auditing rules and regulations, there is no impropriety in the funding.

Power of the Truth Commission to Investigate

The President's power to conduct investigations to ensure that laws are faithfully executed is well
recognized. It flows from the faithful-execution clause of the Constitution under Article VII, Section 17
thereof.[56] As the Chief Executive, the president represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his department. He has the authority to
directly assume the functions of the executive department.[57]

Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and
corruption and to recommend the appropriate action. As previously stated, no quasi-judicial powers have
been vested in the said body as it cannot adjudicate rights of persons who come before it. It has been
said that "Quasi-judicial powers involve the power to hear and determine questions of fact to which the
legislative policy is to apply and to decide in accordance with the standards laid down by law itself in
enforcing and administering the same law."[58] In simpler terms, judicial discretion is involved in the
exercise of these quasi-judicial power, such that it is exclusively vested in the judiciary and must be
clearly authorized by the legislature in the case of administrative agencies.

The distinction between the power to investigate and the power to adjudicate was delineated by the Court
in Cariño v. Commission on Human Rights.[59] Thus:

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research
on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: x x to subject to an official probe x x: to conduct an official
inquiry." The purpose of investigation, of course, is to discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the
facts inquired into by application of the law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find
out by careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an
investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of
which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or
otherwise, for the discovery and collection of facts concerning a certain matter or matters."

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine,
resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the
parties to a court case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as
judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: x
x to award or grant judicially in a case of controversy x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide,
settle or decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry of
a judgment." [Italics included. Citations Omitted]

Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function. To be considered as such, the act of receiving evidence
and arriving at factual conclusions in a controversy must be accompanied by the authority of applying the
law to the factual conclusions to the end that the controversy may be decided or resolved authoritatively,
finally and definitively, subject to appeals or modes of review as may be provided by law.[60] Even
respondents themselves admit that the commission is bereft of any quasi-judicial power.[61]
Contrary to petitioners' apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode
their respective powers. If at all, the investigative function of the commission will complement those of the
two offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a
consequence of the overall task of the commission to conduct a fact-finding investigation."[62] The actual
prosecution of suspected offenders, much less adjudication on the merits of the charges against them, [63]
is certainly not a function given to the commission. The phrase, "when in the course of its investigation,"
under Section 2(g), highlights this fact and gives credence to a contrary interpretation from that of the
petitioners. The function of determining probable cause for the filing of the appropriate complaints before
the courts remains to be with the DOJ and the Ombudsman.[64]

At any rate, the Ombudsman's power to investigate under R.A. No. 6770 is not exclusive but is shared
with other similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia,[65] it
was written:

This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman
Act is not exclusive but is shared with other similarly authorized government agencies such as the
PCGG and judges of municipal trial courts and municipal circuit trial courts. The power to conduct
preliminary investigation on charges against public employees and officials is likewise concurrently
shared with the Department of Justice. Despite the passage of the Local Government Code in 1991, the
Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians to
investigate complaints against local elective officials. [Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal
cases under Section 15 (1) of R.A. No. 6770, which states:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise
of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of
government, the investigation of such cases. [Emphases supplied]

The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a
preliminary investigation or the determination of the existence of probable cause. This is categorically out
of the PTC's sphere of functions. Its power to investigate is limited to obtaining facts so that it can advise
and guide the President in the performance of his duties relative to the execution and enforcement of the
laws of the land. In this regard, the PTC commits no act of usurpation of the Ombudsman's primordial
duties.

The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book
IV in the Revised Administrative Code is by no means exclusive and, thus, can be shared with a body
likewise tasked to investigate the commission of crimes.

Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be
accorded conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano Commission
and the Zenarosa Commission, its findings would, at best, be recommendatory in nature. And being so,
the Ombudsman and the DOJ have a wider degree of latitude to decide whether or not to reject the
recommendation. These offices, therefore, are not deprived of their mandated duties but will instead be
aided by the reports of the PTC for possible indictments for violations of graft laws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the investigative power of the President, the
Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987
Constitution. Section 1 reads:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.

The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They
contend that it does not apply equally to all members of the same class such that the intent of singling out
the "previous administration" as its sole object makes the PTC an "adventure in partisan hostility."[66]
Thus, in order to be accorded with validity, the commission must also cover reports of graft and corruption
in virtually all administrations previous to that of former President Arroyo.[67]

The petitioners argue that the search for truth behind the reported cases of graft and corruption must
encompass acts committed not only during the administration of former President Arroyo but also during
prior administrations where the "same magnitude of controversies and anomalies"[68] were reported to
have been committed against the Filipino people. They assail the classification formulated by the
respondents as it does not fall under the recognized exceptions because first, "there is no substantial
distinction between the group of officials targeted for investigation by Executive Order No. 1 and other
groups or persons who abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to end corruption."[69] In order to
attain constitutional permission, the petitioners advocate that the commission should deal with "graft and
grafters prior and subsequent to the Arroyo administration with the strong arm of the law with equal
force."[70]

Position of respondents

According to respondents, while Executive Order No. 1 identifies the "previous administration" as the
initial subject of the investigation, following Section 17 thereof, the PTC will not confine itself to cases of
large scale graft and corruption solely during the said administration.[71] Assuming arguendo that the
commission would confine its proceedings to officials of the previous administration, the petitioners argue
that no offense is committed against the equal protection clause for "the segregation of the transactions of
public officers during the previous administration as possible subjects of investigation is a valid
classification based on substantial distinctions and is germane to the evils which the Executive Order
seeks to correct."[72] To distinguish the Arroyo administration from past administrations, it recited the
following:

First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the
previous administration which have eroded public confidence in public institutions. There is, therefore, an
urgent call for the determination of the truth regarding certain reports of large scale graft and corruption in
the government and to put a closure to them by the filing of the appropriate cases against those involved,
if warranted, and to deter others from committing the evil, restore the people's faith and confidence in the
Government and in their public servants.

Second. The segregation of the preceding administration as the object of fact-finding is warranted by the
reality that unlike with administrations long gone, the current administration will most likely bear the
immediate consequence of the policies of the previous administration.

Third. The classification of the previous administration as a separate class for investigation lies in the
reality that the evidence of possible criminal activity, the evidence that could lead to recovery of public
monies illegally dissipated, the policy lessons to be learned to ensure that anti-corruption laws are
faithfully executed, are more easily established in the regime that immediately precede the current
administration.

Fourth. Many administrations subject the transactions of their predecessors to investigations to provide
closure to issues that are pivotal to national life or even as a routine measure of due diligence and good
housekeeping by a nascent administration like the Presidential Commission on Good Government
(PCGG), created by the late President Corazon C. Aquino under Executive Order No. 1 to pursue the
recovery of ill-gotten wealth of her predecessor former President Ferdinand Marcos and his cronies, and
the Saguisag Commission created by former President Joseph Estrada under Administrative Order No,
53, to form an ad-hoc and independent citizens' committee to investigate all the facts and circumstances
surrounding "Philippine Centennial projects" of his predecessor, former President Fidel V. Ramos.[73]
[Emphases supplied]

Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of the equality of right which is
embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced
in the concept of due process, as every unfair discrimination offends the requirements of justice and fair
play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against
any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged
on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.[74]

"According to a long line of decisions, equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed."[75] It "requires
public bodies and institutions to treat similarly situated individuals in a similar manner."[76] "The purpose of
the equal protection clause is to secure every person within a state's jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution
through the state's duly constituted authorities."[77] "In other words, the concept of equal justice under the
law requires the state to govern impartially, and it may not draw distinctions between individuals solely on
differences that are irrelevant to a legitimate governmental objective."[78]

The equal protection clause is aimed at all official state actions, not just those of the legislature. [79] Its
inhibitions cover all the departments of the government including the political and executive departments,
and extend to all actions of a state denying equal protection of the laws, through whatever agency or
whatever guise is taken. [80]

It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification, however, to
be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests
on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and (4) It applies equally to all members of the same class.[81] "Superficial differences do
not make for a valid classification."[82]

For a classification to meet the requirements of constitutionality, it must include or embrace all persons
who naturally belong to the class.[83] "The classification will be regarded as invalid if all the members of
the class are not similarly treated, both as to rights conferred and obligations imposed. It is not necessary
that the classification be made with absolute symmetry, in the sense that the members of the class should
possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is
achieved, all those covered by the classification are to be treated equally. The mere fact that an
individual belonging to a class differs from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application of the law to him."[84]

The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who may
thereafter be in similar circumstances and conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers'
Union[85] and reiterated in a long line of cases,[86]

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, but
on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights.
The Constitution does not require that things which are different in fact be treated in law as though they
were the same. The equal protection clause does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object to which it is directed or by the territory
within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in
the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere
fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the classification should be based on substantial
distinctions which make for real differences, that it must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that it must apply equally to each member of the class.
This Court has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. [Citations omitted]

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the
equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find
out the truth "concerning the reported cases of graft and corruption during the previous administration"[87]
only. The intent to single out the previous administration is plain, patent and manifest. Mention of it has
been made in at least three portions of the questioned executive order. Specifically, these are:

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases of graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;

SECTION 1. Creation of a Commission. - There is hereby created the PHILIPPINE TRUTH

COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek and find the
truth on, and toward this end, investigate reports of graft and corruption of such scale and magnitude that
shock and offend the moral and ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or measure to be taken
thereon to ensure that the full measure of justice shall be served without fear or favor.

SECTION 2. Powers and Functions. - The Commission, which shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported cases of graft and corruption referred
to in Section 1, involving third level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the Ombudsman. [Emphases supplied]

In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that
is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly
situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective
retribution.
Though the OSG enumerates several differences between the Arroyo administration and other past
administrations, these distinctions are not substantial enough to merit the restriction of the investigation to
the "previous administration" only. The reports of widespread corruption in the Arroyo administration
cannot be taken as basis for distinguishing said administration from earlier administrations which were
also blemished by similar widespread reports of impropriety. They are not inherent in, and do not inure
solely to, the Arroyo administration. As Justice Isagani Cruz put it, "Superficial differences do not make for
a valid classification."[88]

The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended
investigation to the previous administration only. The OSG ventures to opine that "to include other past
administrations, at this point, may unnecessarily overburden the commission and lead it to lose its
effectiveness."[89] The reason given is specious. It is without doubt irrelevant to the legitimate and noble
objective of the PTC to stamp out or "end corruption and the evil it breeds."[90]

The probability that there would be difficulty in unearthing evidence or that the earlier reports involving the
earlier administrations were already inquired into is beside the point. Obviously, deceased presidents and
cases which have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is the
PTC expected to conduct simultaneous investigations of previous administrations, given the body's
limited time and resources. "The law does not require the impossible" (Lex non cogit ad impossibilia).[91]

Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of
investigating almost a century's worth of graft cases. However, the fact remains that Executive Order No.
1 suffers from arbitrary classification. The PTC, to be true to its mandate of searching for the truth, must
not exclude the other past administrations. The PTC must, at least, have the authority to investigate all
past administrations. While reasonable prioritization is permitted, it should not be arbitrary lest it be
struck down for being unconstitutional. In the often quoted language of Yick Wo v. Hopkins,[92]

Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by
public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court,
however, is of the considered view that although its focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws must conform and in accordance
with which all private rights determined and all public authority administered.[93] Laws that do not conform
to the Constitution should be stricken down for being unconstitutional.[94] While the thrust of the PTC is
specific, that is, for investigation of acts of graft and corruption, Executive Order No. 1, to survive, must be
read together with the provisions of the Constitution. To exclude the earlier administrations in the guise of
"substantial distinctions" would only confirm the petitioners' lament that the subject executive order is only
an "adventure in partisan hostility." In the case of US v. Cyprian,[95] it was written: "A rather limited
number of such classifications have routinely been held or assumed to be arbitrary; those include: race,
national origin, gender, political activity or membership in a political party, union activity or membership in
a labor union, or more generally the exercise of first amendment rights."

To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class.[96] "Such a classification must not be based on
existing circumstances only, or so constituted as to preclude additions to the number included within a
class, but must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations and circumstances which are relative
to the discriminatory legislation and which are indistinguishable from those of the members of the class
must be brought under the influence of the law and treated by it in the same way as are the members of
the class."[97]

The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the equal
protection clause."[98] "Legislation is not unconstitutional merely because it is not all-embracing and does
not include all the evils within its reach."[99] It has been written that a regulation challenged under the
equal protection clause is not devoid of a rational predicate simply because it happens to be
incomplete.[100] In several instances, the underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in future legislations or regulations. These
cases refer to the "step by step" process.[101] "With regard to equal protection claims, a legislature does
not run the risk of losing the entire remedial scheme simply because it fails, through inadvertence or
otherwise, to cover every evil that might conceivably have been attacked."[102]

In Executive Order No. 1, however, there is no inadvertence. That the previous administration was
picked out was deliberate and intentional as can be gleaned from the fact that it was underscored at least
three times in the assailed executive order. It must be noted that Executive Order No. 1 does not even
mention any particular act, event or report to be focused on unlike the investigative commissions created
in the past. "The equal protection clause is violated by purposeful and intentional discrimination."[103]

To disprove petitioners' contention that there is deliberate discrimination, the OSG clarifies that the
commission does not only confine itself to cases of large scale graft and corruption committed during the
previous administration.[104] The OSG points to Section 17 of Executive Order No. 1, which provides:

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there
is a need to expand the mandate of the Commission as defined in Section 1 hereof to include the
investigation of cases and instances of graft and corruption during the prior administrations, such
mandate may be so extended accordingly by way of a supplemental Executive Order.

The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope
of investigations of the PTC so as to include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in the future. Such expanded mandate
of the commission will still depend on the whim and caprice of the President. If he would decide not to
include them, the section would then be meaningless. This will only fortify the fears of the petitioners that
the Executive Order No. 1 was "crafted to tailor-fit the prosecution of officials and personalities of the
Arroyo administration."[105]

The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,[106] that
the "PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the equal
protection clause." The decision, however, was devoid of any discussion on how such conclusory
statement was arrived at, the principal issue in said case being only the sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not the Supreme Court, in the
exercise of its constitutionally mandated power of Judicial Review with respect to recent initiatives of the
legislature and the executive department, is exercising undue interference. Is the Highest Tribunal, which
is expected to be the protector of the Constitution, itself guilty of violating fundamental tenets like the
doctrine of separation of powers? Time and again, this issue has been addressed by the Court, but it
seems that the present political situation calls for it to once again explain the legal basis of its action lest it
continually be accused of being a hindrance to the nation's thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested with
Judicial Power that "includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
of abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government."

Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to
declare a treaty, international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power also includes the duty to rule on the
constitutionality of the application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations. These provisions, however, have been fertile grounds of
conflict between the Supreme Court, on one hand, and the two co-equal bodies of government, on the
other. Many times the Court has been accused of asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit:
"And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims
of authority under the Constitution and to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them."[107]

Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal
body but rather simply making sure that any act of government is done in consonance with the authorities
and rights allocated to it by the Constitution. And, if after said review, the Court finds no constitutional
violations of any sort, then, it has no more authority of proscribing the actions under review. Otherwise,
the Court will not be deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble intentions, all geared towards
the betterment of the nation and its people. But then again, it is important to remember this ethical
principle: "The end does not justify the means." No matter how noble and worthy of admiration the
purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed.[108] The Court cannot just turn a blind eye and
simply let it pass. It will continue to uphold the Constitution and its enshrined principles.

"The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must
not be allowed to sap its strength nor greed for power debase its rectitude."[109]

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

WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the
provisions of Executive Order No. 1.

SO ORDERED.

Corona, C.J., see separate opinion.

Del Castillo and Villarama, Jr., JJ., concur.
Carpio, Carpio Morales, Abad, and Sereno, JJ., please see dissenting opinion
Velasco, Jr., J., certify that J. Velasco left his concurring vote:
Nachura, J., see concurring & dissenting opinion.
Leonardo-De Castro, Brion, Peralta, and Bersamin, JJ., see separate concurring opinion.
Perez, J., see separate opinion.
 EN BANC

G.R. No. 95367, May 23, 1995

COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, AND ELISA RIVERA,
PETITIONERS, VS. HONORABLE CONRADO M. VASQUEZ AND CONCERNED CITIZENS,
RESPONDENTS.

DECISION

MENDOZA, J.:

This is a petition for certiorari, prohibition, and mandamus to annul the subpoena duces tecum and orders
issued by respondent Ombudsman, requiring petitioners Nerio Rogado and Elisa Rivera, as chief
accountant and record custodian, respectively, of the Economic Intelligence and Investigation Bureau
(EIIB) to produce "all documents relating to Personal Services Funds for the year 1988 and all evidence,
such as vouchers (salary) for the whole plantilla of EIIB for 1988" and to enjoin him from enforcing his
orders.

Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while Villamor C. Perez is Chief of the
EIIB's Budget and Fiscal Management Division. The subpoena duces tecum was issued by the
Ombudsman in connection with his investigation of an anonymous letter alleging that funds representing
savings from unfilled positions in the EIIB had been illegally disbursed. The letter, purporting to have
been written by an employee of the EIIB and a concerned citizen, was addressed to the Secretary of
Finance, with copies furnished several government offices, including the Office of the Ombudsman.

The letter reads in pertinent parts:

1. These are the things that I have been observing. During the implementation of E.O. 127
on May 1, 1988, one hundred ninety (190) personnel were dismissed. Before that
implementation, we had a monthly savings of P500,000.00 from unfilled plantilla position
plus the implementation of RA 6683 wherein seventy (70) regular employees availed a
total amount of P1,400,000.00 was saved from the government monthly. The question
is, how do they used or disbursed this savings? The EIIB has a syndicate headed by the
Chief of Budget Division who is manipulating funds and also the brain of the so called
"ghost agents" or the "Emergency Intelligence Agents" (EIA). The Commissioner of EIIB
has a biggest share on this. Among his activities are:

a) Supporting RAM wherein he is involved. He gives big amount especially during the Dec. Failed
coup.
b) Payment for thirty five (30) mini UZI's.
c) Payment for the purchased of Maxima '87 for personal used of the Commissioner.
 d) Another observation was the agents under the Director of NCR EIIB is the sole operating unit
within Metro Manila which was approved by no less than the Commissioner due to anomalous
activities of almost all agents assigned at the central office directly under the Commissioner.
Retired Brig. Gen. Almonte as one of the Anti-Graft board member of the Department of
Finance should not tolerate this. However, the Commissioner did not investigate his own men
instead, he placed them under the 15-30 payroll.
e) Many more which are personal.

2.
3. Sir, my question is this. Can your good office investigate Ell intelligence funds
particularly Personal Services (01) Funds? I wonder why the Dep't of Budget & Mgmt.
cannot compel EllB to submit an actual filled up position because almost half of it are
vacant and still they are releasing it. Are EIIB plantilla position classified? It is included
in the Personal Services Itemization (PSI) and I believe it is not classified and a ruling
from Civil Service Commission that EIIB is not exempted from Civil Service. Another
info, when we had salary differential last Oct `88 all money for the whole plantilla were
released and from that alone, Millions were saved and converted to ghost agents of EIA.

4. Another thing that I have observed was the Chief Budget Division possesses high caliber
firearms such as a mini UZI, Armalite rifle and two (2) 45 cal. pistol issued to him by the
Assistant Commissioner wherein he is not an agent of EIIB and authorized as such
according to memorandum order number 283 signed by the President of the Republic of
the Philippines effective 9 Jan. 1990.

Another observation was when EIIB agents apprehended a certain civilian who
possesses numerous assorted high powered firearms. Agents plus one personnel from
the legal proclaimed only five (5) firearms and the remaining was pilfered by them.

Another observation is almost all EIIB agents collects payroll from the big time smuggler
syndicate monthly and brokers every week for them not to be apprehended.

Another observation is the commissioner allocates funds coming from the intelligence
funds to the media to sustain their good image of the bureau.

In his comment[1] on the letter-complaint, petitioner Almonte denied that as a result of the separation of
personnel, the EIIB had made some savings. He averred that the only funds released to his agency by
the Department of Budget and Management (DBM) were those corresponding to 947 plantilla positions
which were filled. He also denied that there were "ghost agents" in the EIIB and claimed that
disbursements for "open" (i.e., "overt" personnel) and "closed" (i.e., "covert" personnel) plantillas of the
agency had been cleared by the Commission on Audit (COA); that the case of the 30 Uzis had already
been investigated by Congress, where it was shown that it was not the EIIB but an agent who had spent
for the firearms and they were only loaned to the EIIB pending appropriation by Congress; that, contrary
to the charge that a Maxima car had been purchased for his use, he was using a government issued car
from the NICA; that it was his prerogative as Commissioner to "ground" agents in the EIIB main office so
that they could be given reorientation and retraining; that the allegation that the EIIB operatives pilfered
smuggled firearms was without factual basis because the firearms were the subject of seizure
proceedings before the Collector of Customs, Port of Manila; that the EIIB had been uncompromising
toward employees found involved in anomalous activities; and that intelligence funds had not been used
for media propaganda and if media people went to the EIIB it was because of newsworthy
stories. Petitioner asked that the complaint be dismissed and the case considered closed.

Similarly petitioner Perez, budget chief of the EIIB, denied in his comment[2] dated April 3, 1990 that
savings had been realized from the implementation of E.O. No. 127, since the DBM provided allocations
for only the remaining 947 personnel. He said that the disbursement of funds for the plantilla positions for
"overt" and "covert" personnel had been cleared by the COA and that the high-powered firearms had
been issued for the protection of EIIB personnel attending court hearings and the Finance Officer in
withdrawing funds from the banks.

The Graft Investigation Officer of the Ombudsman's office, Jose F. Saño, found the comments
unsatisfactory, being "unverified and plying only on generalizations without meeting specifically the points
raised by complainant as constitutive of the alleged anomalies."[3] He, therefore, asked for authority to
conduct a preliminary investigation. Anticipating the grant of his request, he issued a subpoena[4] to
petitioners Almonte and Perez, requiring them to submit their counter-affidavits and the affidavits of their
witnesses, as well as a subpoena duces tecum[5] to the Chief of the ElIB's Accounting Division ordering
him to bring "all documents relating to Personal Services Funds for the year 1988 and all evidence, such
as vouchers (salary) for the whole plantilla of EIIB for 1988."

Petitioners Almonte and Perez moved to quash the subpoena and the subpoena duces tecum. In his
Order dated June 15, 1990,[6] respondent Ombudsman granted the motion to quash the subpoena in view
of the fact that there were no affidavits filed against petitioners. But he denied their motion to quash the
subpoena duces tecum. He ruled that petitioners were not being forced to produce evidence against
themselves, since the subpoena duces tecum was directed to the Chief Accountant, petitioner Nerio
Rogado. In addition the Ombudsman ordered the Chief of the Records Section of the EIIB, petitioner
Elisa Rivera, to produce before the investigator "all documents relating to Personnel Service Funds, for
the year 1988, and all documents, salary vouchers for the whole plantilla of the EIIB for 1988, within ten
(10) days from receipt hereof."

Petitioners Almonte and Perez moved for a reconsideration, arguing that Rogado and Rivera were EIIB
employees under their supervision and that the Ombudsman was doing indirectly what he could not do
directly, i.e., compelling them (petitioners Almonte and Perez) to produce evidence against themselves.

Petitioners' motion was denied in respondent Ombudsman's order dated August 6, 1990. Hence, this
petition which questions the orders of June 15, 1990 and August 6, 1990 of respondent Ombudsman.

To put this case in perspective it should be stated at the outset that it does not concern a demand by a
citizen for information under the freedom of information guarantee of the Constitution.[7] Rather it
concerns the power of the Office of the Ombudsman to obtain evidence in connection with an
investigation conducted by it vis-a-vis the claim of privilege of an agency of the Government. Thus
petitioners raise the following issues:[8]

I. WHETHER OR NOT A CASE BROUGHT ABOUT BY AN UNSIGNED AND

UNVERIFIED LETTER COMPLAINT IS AN "APPROPRIATE CASE" WITHIN THE
CONCEPT OF THE CONSTITUTION IN WHICH PUBLIC RESPONDENT CAN OBLIGE
PETITIONERS BY VIRTUE OF HIS SUBPOENA DUCES TECUM TO PRODUCE TO
HIM "ALL DOCUMENTS RELATING TO PERSONAL SERVICES FUNDS FOR THE
YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS (SALARY) FOR THE
WHOLE PLANTILLA OF EIIB FOR 1988."

II. WHETHER OR NOT "ALL DOCUMENTS RELATING TO PERSONAL SERVICES

FUNDS FOR THE YEAR 1988 AND ALL EVIDENCES, SUCH AS VOUCHERS
(SALARY) FOR THE WHOLE PLANTILLA OF EIIB FOR 1988" ARE CLASSIFIED AND,
THEREFORE, BEYOND THE REACH OF PUBLIC RESPONDENT'S SUBPOENA
DUCES TECUM.

I.

There are several subsidiary issues raised by petitioners, but the principal ones revolve on the question
whether petitioners can be ordered to produce documents relating to personal services and salary
vouchers of EIIB employees on the plea that such documents are classified. Disclosure of the documents
in question is resisted on the ground that "knowledge of EIIB's documents relative to its Personal Services
Funds and its plantilla . . . will necessarily [lead to] knowledge of its operations, movements, targets,
strategies, and tactics and the whole of its being" and this could "destroy the EllB."[9]

Petitioners do not question the power of the Ombudsman to issue a subpoena duces tecum nor the
relevancy or materiality of the documents required to be produced, to the pending investigation in the
Ombudsman's office. Accordingly, the focus of discussion should be on the Government's claim of
privilege.

A.

At common law a governmental privilege against disclosure is recognized with respect to state secrets
bearing on military, diplomatic and similar matters. This privilege is based upon public interest of such
paramount importance as in and of itself transcending the individual interests of a private citizen, even
though, as a consequence thereof, the plaintiff cannot enforce his legal rights.[10]

In addition, in the litigation over the Watergate tape subpoena in 1973, the U.S. Supreme Court
recognized the right of the President to the confidentiality of his conversations and correspondence,
which it likened to "the claim of confidentiality of judicial deliberations." Said the Court in United States v.
Nixon:[11]

The expectation of a President to the confidentiality of his conversations and correspondence, like the
claim of confidentiality of judicial deliberations, for example, has all the values to which we accord
deference for the privacy of all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A
President and those who assist him must be free to explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would be unwilling to express except privately. These
are the considerations justifying a presumptive privilege for Presidential communications. The privilege is
fundamental to the operation of the government and inextricably rooted in the separation of powers under
the Constitution. . . .

Thus, the Court for the first time gave executive privilege a constitutional status and a new name,
although not necessarily a new birth.[12]

"The confidentiality of judicial deliberations" mentioned in the opinion of the Court referred to the fact that
Justices of the U.S. Supreme Court and judges of lower federal courts have traditionally treated their
working papers and judicial notes as private property. A 1977 proposal in the U.S. Congress that
Justices and judges of lower federal courts "should be encouraged to make such arrangements as will
assure the preservation and eventual availability of their personal papers, especially the deposit of their
papers in the same depository they select for [their] Public Papers"[13] was rebuffed by the Justices who,
in a letter to the Chairman of the Subcommittee on Regulation and Government Information of the U.S.
Senate, referred to "difficult concerns respecting the appropriate separation that must be maintained
between the legislative branch and this Court."[14]
There are, in addition to such privileges, statutorily-created ones such as the Government's privilege to
withhold the identity of persons who furnish information of violations of laws. [15]

With respect to the privilege based on state secret, the rule was stated by the U.S. Supreme Court as
follows:

Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet
we will not go so far as to say that the court may automatically require a complete disclosure to the judge
before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all
the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will
expose military matters which, in the interest of national security, should not be divulged. When this is
the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security
which the privilege is meant to protect by insisting upon an examination of the evidence, even by the
judge alone, in chambers. . . In each case, the showing of necessity which is made will determine how far
the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate. Where
there is a strong showing of necessity, the claim of privilege should not be lightly accepted, but even the
most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that
military secrets are at stake. A fortiori, where necessity is dubious, a formal claim of privilege, made
under the circumstances of this case, will have to prevail.[16]

On the other hand, where the claim of confidentiality does not rest on the need to protect military,
diplomatic or other national security secrets but on a general public interest in the confidentiality of his
conversations, courts have declined to find in the Constitution an absolute privilege of the President
against a subpoena considered essential to the enforcement of criminal laws.[17]

B.

In the case at bar, there is no claim that military or diplomatic secrets will be disclosed by the production
of records pertaining to the personnel of the EIIB. Indeed, EIIB's function is the gathering and evaluation
of intelligence reports and information regarding "illegal activities affecting the national economy, such as,
but not limited to, economic sabotage, smuggling, tax evasion, dollar salting."[18] Consequently, while in
cases which involve state secrets it may be sufficient to determine from the circumstances of the case
that there is reasonable danger that compulsion of the evidence will expose military matters without
compelling production,[19] no similar excuse can be made for a privilege resting on other considerations.

Nor has our attention been called to any law or regulation which considers personnel records of the EllB
as classified information. To the contrary, COA Circular No. 88-293, which petitioners invoke to support
their contention that there is adequate safeguard against misuse of public funds, provides that the "only
item of expenditure which should be treated strictly confidential" is that which refers to the "purchase of
information and payment of rewards." Thus, part V, No. 7 of the Circular read:

The only item of expenditure which should be treated as strictly confidential because it falls under the
category of classified information is that relating to purchase of information and payment of
rewards. However, reasonable records should be maintained and kept for inspection of the Chairman,
Commission on Audit or his duly authorized representative. All other expenditures are to be considered
unclassified supported by invoices, receipts and other documents, and, therefore, subject to reasonable
inquiry by the Chairman or his duly authorized representative.[20]

It should be noted that the regulation requires that "reasonable records" be kept justifying the confidential
or privileged character of the information relating to informers. There are no such reasonable records in
this case to substitute for the records claimed to be confidential.

The other statutes and regulations[21] invoked by petitioners in support of their contention that the
documents sought in the subpoena duces tecum of the Ombudsman are classified merely indicate the
confidential nature of the ElIB's functions, but they do not exempt the EIIB from the duty to account for its
funds to the proper authorities. Indeed by denying that there were savings made from certain items in the
agency and alleging that the DBM had released to the EIIB only the allocations needed for the 947
personnel retained after its reorganization, petitioners in effect invited inquiry into the veracity of their
claim. If, as petitioners claim, the subpoenaed records have been examined by the COA and found by it
to be regular in all respects, there is no reason why they cannot be shown to another agency of the
government which by constitutional mandate is required to look into any complaint concerning public
office.

On the other hand, the Ombudsman is investigating a complaint that several items in the EIIB were filled
by fictitious persons and that the allotments for these items in 1988 were used for illegal purposes. The
plantilla and other personnel records are relevant to his investigation. He and his Deputies are
designated by the Constitution "protectors of the people" and as such they are required by it "to act
promptly on complaints in any form or manner against public officials or employees of the Government, or
any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporation."[22]

His need for the documents thus outweighs the claim of confidentiality of petitioners. What is more, while
there might have been compelling reasons for the claim of privilege in 1988 when it was asserted by
petitioners, now, seven years later, these reasons may have been attenuated, if they have not in fact
ceased. The agents whose identities could not then be, revealed may have ceased from the service of
the EIIB, while the covert missions to which they might have been deployed might either have been
accomplished or abandoned. On the other hand, the Ombudsman's duty to investigate the complaint that
there were in 1988 unfilled positions in the EIIB for which continued funding was received by its officials
and put to illegal use, remains.

Above all, even if the subpoenaed documents are treated as presumptively privileged, this decision would
only justify ordering their inspection in camera but not their nonproduction. However, as concession to
the nature of the functions of the EIIB and just to be sure no information of a confidential character is
disclosed, the examination of records in this case should be made in strict confidence by the Ombudsman
himself. Reference may be made to the documents in any decision or order which the Ombudsman may
render or issue but only to the extent that it will not reveal covert activities of the agency. Above all, there
must be a scrupulous protection of the documents delivered.

With these safeguards outlined, it is believed that a satisfactory resolution of the conflicting claims of the
parties is achieved. It is not amiss to state that even matters of national security have been inquired into
in appropriate in camera proceedings by the courts. In Lansang v. Garcia[23] this Court held closed door
sessions, with only the immediate parties and their counsel present, to determine claims that because of
subversion there was imminent danger to public safety warranting the suspension of the writ of habeas
corpus in 1971. Again in Marcos v. Manglapus[24] the Court met behind closed doors to receive military
briefings on the threat posed to national security by the return to the country of the former President and
his family. In the United States, a similar inquiry into the danger to national security as a result of the
publication of classified documents on the Vietnam war was upheld by the U.S. Supreme Court.[25] We
see no reason why similar safeguards cannot be made to enable an agency of the Government, like the
Office of the Ombudsman, to carry out its constitutional duty to protect public interests[26] while insuring
the confidentiality of classified documents.

C.
Petitioners contend that under Art. XI, § 13(4) the Ombudsman can act only "in any appropriate case, and
subject to such limitations as may be provided by law" and that because the complaint in this case is
unsigned and unverified, the case is not an appropriate one. This contention lacks merit. As already
stated, the Constitution expressly enjoins the Ombudsman to act on any complaint filed "in any form or
manner" concerning official acts or omissions. Thus, Art. XI, § 12 provides:

The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in
any form or manner against public officials or employees of the Government, or any subdivision, agency,
or instrumentality thereof, including government-owned or controlled corporations and shall in appropriate
cases, notify the complainants of the action taken and the result thereof. (Emphasis added)

Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides in § 26(2):

The Office of the Ombudsman shall receive complaints from any source in whatever form concerning an
official act or omission. It shall act on the complaint immediately and if it finds the same entirely baseless,
it shall dismiss the same and inform the complainant of such dismissal citing the reasons therefor. If it
finds a reasonable ground to investigate further, it shall first furnish the respondent public officer or
employee with a summary of the complaint and require him to submit a written answer within seventy-two
hours from receipt thereof. If the answer is found satisfactory, it shall dismiss the case. (Italics added)

Accordingly, in Diaz v. Sandiganbayan[27] the Court held that testimony given at a fact-finding
investigation and charges made in a pleading in a case in court constituted a sufficient basis for the
Ombudsman to commence investigation, because a formal complaint was really not necessary.

Rather than referring to the form of complaints, therefore, the phrase "in an appropriate case" in Art, XI, §
12 means any case concerning official act or omission which is alleged to be "illegal, unjust, improper, or
inefficient."[28] The phrase "subject to such limitations as may be provided by law" refers to such
limitations as may be provided by Congress or, in the absence thereof, to such limitations as may be
imposed by the courts. Such limitations may well include a requirement that the investigation be
conducted in camera, with the public excluded, as exception to the general nature of the proceedings in
the Office of the Ombudsman.[29] A reconciliation is thereby made between the demands of national
security and the requirement of accountability enshrined in the Constitution.[30]

What has been said above disposes of petitioners' contention that the anonymous letter-complaint
against them is nothing but a vexatious prosecution. It only remains to say that the general investigation
in the Ombudsman's office is precisely for the purpose of protecting those against whom a complaint is
filed against hasty, malicious, and oppressive prosecution as much as securing the State from useless
and expensive trials. There may also be benefit resulting from such limited in camera inspection in terms
of increased public confidence that the privilege is not being abused and increased likelihood that no
abuse is in fact occurring.

II.
Nor is there violation of petitioners' right to the equal protection of the laws. Petitioners complain that "in
all forum and tribunals . . . the aggrieved parties . . . can only hale respondents via their verified
complaints or sworn statements with their identities fully disclosed," while in proceedings before the Office
of the Ombudsman anonymous letters suffice to start an investigation. In the first place, there can be no
objection to this procedure because it is provided in the Constitution itself. In the second place, it is
apparent that in permitting the filing of complaints "in any form and in a manner," the framers of the
Constitution took into account the well-known reticence of the people which keep them from complaining
against official wrongdoings. As this Court had occasion to point out, the Office of the Ombudsman is
different from the other investigatory and prosecutory agencies of the government because those subject
to its jurisdiction are public officials who, through official pressure and influence, can quash, delay or
dismiss investigations held against them.[31] On the other hand complainants are more often than not poor
and simple folk who cannot afford to hire lawyers.[32]

III.

Finally, it is contended that the issuance of the subpoena duces tecum would violate petitioners' right
against self-incrimination. It is enough to state that the documents required to be produced in this case
are public records and those to whom the subpoena duces fecum is directed are government officials in
whose possession or custody the documents area. Moreover, if, as petitioners claim the disbursement by
the EIIB of funds for personal service has already been cleared by the COA, there is no reason why they
should object to the examination of the documents by respondent Ombudsman.

WHEREFORE, the petition is DISMISSED, but it is directed that the inspection of subpoenaed documents
be made personally in camera by the Ombudsman, and with all the safeguards outlined in this decision.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, and
Vitug, JJ., concur.
Kapunan, J., see dissenting opinion.
Francisco, J., on leave.
 G.R. No. L-23794, February 17, 1968

ORMOC SUGAR COMPANY, INC., PLAINTIFF-APPELLANT, VS. THE TREASURER OF ORMOC

CITY, THE MUNICIPAL BOARD OF ORMOC CITY, HON. ESTEBAN C. CONEJOS, AS MAYOR OF
ORMOC CITY AND ORMOC CITY, DEFENDANTS-APPELLEES.

DECISION

BENGZON, J.P., J.:

On January 29, 1964, the Municipal Board of Ormoc City passed[1] Ordinance No. 4, Series of 1964,
imposing "on any and all productions of centrifugal sugar milled at the Ormoc Sugar Company, Inc., in
Ormoc City a municipal tax equivalent to one per centum (1%) per export sale to the United States of
America and other foreign countries."[2]

Payments for said tax were made, under protest, by Ormoc Sugar Company, Inc. on March 20, 1964 for
P7,087.50 and on April 20, 1964 for P5,000, or a total of P12,087.50.

On June 1, 1964, Ormoc Sugar Company, Inc. filed before the Court of First Instance of Leyte, with
service of a copy upon the Solicitor General, a complaint[3] against the City of Ormoc as well as its
Treasurer, Municipal Board and Mayor, alleging that the afore-stated ordinance is unconstitutional for
being violative of the equal protection clause (Sec. 1 [1], Art. III, Constitution) and the rule of uniformity of
taxation (Sec. 22[1], Art, VI, Constitution), aside from being an export tax forbidden under Section 2287 of
the Revised Administrative Code. It further alleged that the tax is neither a production nor a license tax
which Ormoc City under Section 15-kk of its charter and under Section 2 of Republic Act 2264, otherwise
known as the Local Autonomy Act; is authorized to impose; and that the tax amounts to a customs duty,
fee or charge in violation of paragraph 1 of Section 2 of Republic Act 2264 because the tax is on both the
sale and export of sugar.

Answering, the defendants asserted that the tax ordinance was within defendant city's power to enact
under the Local Autonomy Act and that the same did not violate the afore-cited constitutional
limitations. After pre?trial and submission of the case on memoranda, the Court of First Instance, on
August 6, 1964, rendered a decision that upheld the constitutionality of the ordinance and declared the
taxing power of defendant chartered city broadened by the Local Autonomy Act to include all other forms
of taxes, licenses or fees not excluded in its charter.

Appeal therefrom was directly taken to Us by plaintiff Ormoc Sugar Company, Inc. Appellant alleges the
same statutory and constitutional violations in the aforesaid taxing ordinance mentioned earlier.

Section 1 of the ordinance states: "There shall be paid to the City Treasurer on any and all productions of
centrifugal sugar milled at the Ormoc Sugar Company Incorporated in Ormoc City a municipal tax
equivalent to one per centum (1%) per export sale to the United States of America and other foreign
countries." Though referred to as a "production tax", the imposition actually amounts to a tax on the
export of centrifugal sugar produced at Ormoc Sugar Company, Inc. For production of sugar alone is not
taxable; the only time the tax applies is when the sugar produced is exported.

Appellant questions the authority of the defendant Municipal Board to levy such an export tax, in view of
Section 2287 of the Revised Administrative Code which denies from municipal councils the power to
impose an export tax. Section 2287 in part states: "It shall not be in the power of the municipal council to
impose a tax in any form whatever, upon goods and merchandise carried into the municipality, or out of
the same, and any attempt to impose an import or export tax upon such, goods in the guise of an
unreasonable charge for wharfage, use of brides or otherwise, shall be void."

Subsequently, however, Section 2 of Republic Act 2264, effective June 19, 1959, gave chartered cities,
municipalities and municipal districts authority to levy for public purposes just and uniform taxes, licenses
or fees. Anent the inconsistency between Section 2287 of the Revised Administrative Code and Section
2 of Republic Act 2264, this Court, in Nin Bay Mining Co. v. Municipality of Roxas,[4] held the former to
have been repealed by the latter. And expressing Our awareness the transcendental effects that
municipal export or import taxes or licenses will have on the national economy, due to Section 2 of
Republic Act 2264, We stated that there was no other alternative until Congress acts to provide remedial
measures to forestall any unfavorable results.

The point remains to be determined, however, whether constitutional limits on the power of taxation,
specifically the equal protection clause and rule of uniformity of taxation, were infringed.

The Constitution in the bill of rights provides: "x x x nor shall any person be denied the equal protection op
the laws." (Sec. 1[1], Art. III) In Felwa v. Salas,[5] We ruled that the equal protection clause applies only to
persons or things identically situated and does not bar a reasonable classification of the subject of le-
gislation, and a classification is reasonable where (1) it is based on substantial distinctions which make
real differences; (2) these are germane to the purpose of the law (3) the classification applies not only to
present conditions but also to future conditions which are substantially identical to those of the present;
(4) the classification applies only to those who belong to the same class.

A perusal of the requisites instantly shows that the questioned ordinance does not meet them, for it taxes
only centrifugal sugar produced and exported by the Ormoc Sugar Company, Inc. and none other. At the
time of the taxing ordinance's enactment, Ormoc Sugar Company, Inc., it is true, was the only sugar
central in the city of Ormoc. Still the classification, to be reasonable, should be in terms applicable to
future conditions as well. The taxing ordinance should not be singular and exclusive to exclude any
subsequently established sugar central, of the same class as plaintiff, from the coverage of the tax. As it
is now, even if later a similar company is set up, it cannot be subject to the tax because the ordinance
expressly points only to Ormoc Sugar Company, Inc. as the entity to be levied upon.

Appellant, however, is not entitled to interest on the refund because the taxes were not arbitrarily
collected (Collector of Internal Revenue v. Binalbagan).[6] At the time of collection, the ordinance provided
a sufficient basis to preclude arbitrariness, the same being then presumed constitutional until declared
otherwise.
WHEREFORE, the decision appealed from is hereby reversed, the challenged ordinance is declared
unconstitutional and the defendants-appellees are hereby ordered to refund the P12,087.50 plaintiff-
appellant paid under protest. No costs.

SO ORDERED.

Concepcion, C.J, Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro, Angeles, and
Fernando, JJ., concur.