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ADMINPCEL
(Administrative Public Corporations and Election Laws)

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ADMINISTRATIVE LAW
No. Case Title Pages Page
Overview
1 Aratuc v. COMELEC 27 2
2 Maceda v. ERB 7 29
Administrative Agencies
3 Malaga v. Penachos, Jr. 10 36
4 Beja, Sr. v. CA 10 46
5 Eugenio v. CSC 8 56
6 Presidential Anti-Dollar Salting Task Force v. CA 13 64
7 De la Llana v. Alba 77 77
8 Lacson-Magallanes Co., Inc. v. Paño 8 154
9 Medalla, Jr. v. Sayo 9 162
10 Llanga Bay Logging Co., Inc. v. Enage 11 171
Power of Administrative Agencies
11 Tio v. VRB 7 182
12 Rabor v. CSC 15 189
13 PAL v. CAB 12 204
14 US v. Ang Tang Ho 11 216
15 Ynot v. IAC 9 227
16 Pelaez v. Auditor General 15 236
EN BANC
[G.R. Nos. L-49705-09. February 8, 1979.]
TOMATIC ARATUC, SERGIO TOCAO, CISCOLARIO DIAZ, FRED

TAMULA, MANGONTAWAR GURO and BONIFACIO LEGASPI,
petitioners, vs. The COMMISSION ON ELECTIONS, REGIONAL BOARD
OF CANVASSERS for Region XII (Central Mindanao), ABDULLAH
DIMAPORO, JESUS AMPARO, ANACLETO BADOY, et al., respondents.
[G.R. Nos. L-49717-21.]
LINANG MANDANGAN, petitioner, vs. THE COMMISSION ON

ELECTIONS, The REGIONAL BOARD OF CANVASSERS for Region XII,
and ERNESTO ROLDAN, respondents.
Lino M. Patajo for petitioners in G.R. No. L-49705-09 and for private respondent
in G.R. No. L-49717-21.
Estanislao A. Fernandez for private respondents in G.R. No. L-49705-09 and for
petitioner in G.R. No. L-49717-21.
Office of the Solicitor General for public respondents.
SYNOPSIS
Over the objection of the Konsensiya ng Bayan (KB) candidates, the Regional Board of
Canvassers of Region XII issued a resolution declaring all the eight Kilusan ng Bagong
Lipunan (KBL) candidates elected representatives to the Batasang Pambansa. The KB
candidates appealed the resolution to the Comelec which consequently issued the now
assailed resolution declaring seven KBL candidates and one KB candidates as having
obtain the first eight places, and ordering the Regional Board of Canvassers to proclaim
the winning candidates. The Aratuc petition alleged that the Comelec in arriving at its
conclusion committed grave abuse of discretion amounting to lack of jurisdiction. The
Mandangan petition, on the other hand, claims that it was error of law for Comelec to
consider spurious and manufactured the returns in voting centers showing that the votes
of the candidates obtaining the highest number of votes exceeded the highest possible
number of valid votes, because the excess was not more than 40% as was the rule
followed in Bashier/Basman (L-33758, February 24, 1972), and that the Comelec exceeded
its jurisdiction and denied due process to petitioner in extending its inquiry beyond the
election records of "the 878 voting centers examined by the KB experts and passed upon
by the Regional Board of Canvassers" and in excluding from the canvass the returns form
voting centers showing 90% to 100% voting in places where military operations were
certified by the army to be going on, the same being unsupported by evidence.
The Supreme Court found no grave abuse of discretion in the actuations of the Comelec
and in Mandangan held (1) that considering the historical antecedents relative to the highly
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questionable manner in which elections have been held in the past in the provinces
involved, the Comelec may deem spurious and manufactured the returns in voting centers
showing that the votes of the candidates obtaining the highest number of valid votes
exceeded the highest possible number of votes cast therein even if the excess number of
votes were not more than 40%; and (2) that the Comelec could extend its inquiry beyond
that undertaken by the Board of Canvassers and take cognizance of the fact that voting
centers affected by military operations have been transferred to the poblaciones, because
as a superior body having supervision and control over the Board of Canvassers, it may do
directly what the latter was supposed or ought to have done. In Aratuc et al., the Supreme
Court found that the Comelec did consider the high percentage of voting coupled with
mass substitute voting as proof that the pertinent returns had been manufactured, and
that apart from presuming regularity in the performance of its duties, the Comelec had
adhered to the Supreme Court's guidelines in examining and passing on the returns from
the voting centers and in denying petitioner's motion for the opening of ballot boxes
concerned. Further, the High Court stated, it might disagree with the Comelec as to which
voting center should be excluded or included, but still a case of grave abuse of discretion
would not come out considering that Comelec, which concededly is in a better position to
appreciate and assess the vital circumstances clearly and accurately, cannot be said to
have acted whimsically or capriciously, or without basis.
Petition dismissed.
SYLLABUS
Of the Ruling of the Court

1. CONSTITUTIONAL LAW; NATURE AND EXTENT OF SUPREME COURT'S POWER OF
CERTIORARI OVER DECISIONS, ORDERS, AND RULINGS OF THE COMELEC UNDER THE
1978 CONSTITUTION. — While under the constitution of 1935 "the decisions, orders, and
rulings of the Commissions shall be subject to review by the Supreme Court" (Section 2,
first par., Article X), the 1973 Constitution provides somewhat differently thus: "Any
decision, order or ruling of the Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within 30 days from his receipt of a copy thereof" (Section
II, Article XII), even as it ordains that the Commission shall "be the sole judge of all
contests relating to the election returns and qualifications of all members of the National
Assembly and elective provincial and city officials" (Section 2(2), Article XII).
Correspondingly, the Election Code of 1978, which is the first legislative construction of
these pertinent constitutional provisions, makes the Commission also the "sole judge of all
pre-proclamation controversies" and further provides that "any of its decisions, orders or
rulings (in such controversies) shall be final and executory", just as in election contests,
"the decisions of the Commission shall be final and appealable" (Section 192). The framers
of the new Constitution must be presumed to have definite knowledge of what its means
to make the decisions, orders and rulings of the Commission "subject to review by the
Supreme Court". And since instead of maintaining that provision intact, it ordained that the
Commission's actuations be instead brought to the Supreme Court on certiorari", the
Supreme Court cannot insist that there was no intent to change the nature of the remedy,
considering that the limited scope of certiorari, compared to a review, is well known in
remedial law. A review includes digging into the merits or unearthing errors of judgment,
while certiorari deals exclusively with grave abuse of discretion, which may not exist even
when the decision is otherwise erroneous. Certiorari implies indifferent disregard of the
law, arbitrariness and caprice, an omission to weigh pertinent considerations, a decision
arrived at without rational deliberation. While the effects of an error of judgment may not
differ from that of an indiscretion, as a matter of policy, there are matters that by their
nature ought to be left for final determination to the sound discretion of certain officers or
entities, reserving it to the Supreme Court to insure the faithful observance of due process
only in cases of patent arbitrariness.
2. CERTIORARI; GRAVE ABUSE OF DISCRETION; CONSIDERING AS SPURIOUS VOTES
EXCEEDING THE HIGHEST POSSIBLE NUMBER OF VALID VOTES THAT CAN BE CAST IN A
VOTING CENTER, NOT A CASE OF. — It is not grave abuse of discretion for the Comelec to
deem as spurious and manufactured votes exceeding the highest possible number of valid
votes that can be cast in a voting center even if the total number of excess votes in the
voting center is not more than 40%, considering the historical antecedents relative to the
highly questionable manner in which elections have been held in the past in the provinces
involved in this case, of which the Supreme Court has judicial notice.
3. ID.; ID.; NOT A CASE OF; COMELEC MAY DO DIRECTLY WHAT THE BOARD OF
CANVASSERS IS SUPPOSED TO DO OR OUGHT TO HAVE DONE. — Under Section 168 of
the Revised Election Code of 1978, the Comelec shall have direct control and supervision
of the board of canvassers, and that relatedly Section 175 of the same Code provides that
it "shall be the sole judge of all pre-proclamation controversies." The authority of the
Commission in reviewing actuations of the board of canvassers does not spring from any
appellate jurisdiction conferred by any specific provision of law, for there is none such
provision any where in the Election Code, but from the plenary prerogative of direct control
and supervision endowed by Section 168 of the Code. And in administrative law, it is a too
well settled postulate to need any supporting citation, that a superior body or office having
supervision and control over another may do directly what the latter is supposed to do or
ought to have done.
4. ID.; ID.; ERRORS OF JUDGMENT NOT REVIEWABLE BY THE SUPREME COURT. —
Where it appears from the records that the Comelec has taken pains to consider as
meticulously as the nature of the evidence presented by both parties would permit all the
contentions of petitioners relative to the weight that should be given to such evidence, the
Supreme Court will not hold that the Comelec acted wantonly and arbitrarily in drawing its
conclusions. If errors there are in any of those conclusions, they are errors of judgment
which are not reviewable in certiorari, so long as they are founded on substantial evidence.
5. ID.; ID.; NOT A CASE OF; WHERE COMELEC PASSED UPON RETURNS USING
COMMON SENSE AND PERCEPTION ONLY; PRESUMPTION OF REGULARITY IN THE
PERFORMANCE OF DUTIES. — Where the Comelec did not examine the questioned election
returns with the aid of experts but "using common sense and perception only", apart from
presuming regularity in the performance of its duties, a case of grave abuse of discretion
would not come out, considering that Comelec cannot be said to have acted whimsically
or capriciously or without any rational basis, particularity if it is considered that in many
respects and from the very nature of the Supreme Court's and the Commission's
respective functions, the Commission is in a better position to appreciate and assess the
vital circumstances closely and accurately.
6. ID.; NON-IDENTIFICATION OF BALLOT BOXES IN DEFECTIVE CONDITIONS DOES
NOT CONSTITUTE GRAVE ABUSE OF DISCRETION WHERE COMELEC HAS EXAMINED,
STUDIED AND PASSED UPON THE RECORDS RELATED THERETO. — Non-identification of
defective ballot boxes by the Comelec does not constitute grave abuse of discretion
where it has examined, studied and passed upon the records related thereto. If at all,
deeper inquiry into this point would be of real value in an electoral protest.
DECISION
BARREDO , J : p
Petition in G.R. Nos. L-49705-09 for certiorari with restraining order and preliminary
injunction filed by six (6) independent candidates for representatives to the Interim
Batasang Pambansa who had joined together under the banner of the Kunsensiya ng
Bayan which, however, was not registered as a political party or group under the 197&
Election Code, P.D. No. 1296, namely Tomatic Aratuc, Sergio Tocao, Ciscolario Diaz, Fred
Tamula, Mangontawar Guro and Bonifacio Legaspi, hereinafter referred to as petitioners,
to review the decision of the respondent Commission on Elections (Comelec) resolving
their appeal from the rulings of the respondent Regional Board of Canvassers for Region
XII regarding the canvass of the results of the election in said region for representatives to
the I.B.P. held on April 7, 1978. Similar petition in G.R. Nos. L-49717-21, for certiorari with
restraining order and preliminary injunction filed by Linang Mandangan, also a candidate
for representative in the same election in that region, to review the decision of the Comelec
declaring respondent Ernesto Roldan as entitled to be proclaimed as one of the eight
winners in said election. prcd
The instant proceedings are sequels of Our decision in G.R. No. L-48097, wherein Tomatic
Aratuc, et al. sought the suspension of the canvass then being undertaken by respondent
Board in Cotabato City and in which canvass, the returns in 1,966 out of a total of 4,107
voting centers in the whole region had already been canvassed showing partial results as
follows:
"NAMES OF CANDIDATES NO. OF VOTES
1. Roldan, Ernesto (KB) 225,674
2. Valdez, Estanislao (KBL) 217,789
3. Dimaporo, Abdullah (KBL) 199,244
4. Tocao, Sergio (KB) 199,062
5. Badoy, Anacleto (KBL) 198,956
6. Amparo, Jesus (KBL) 184,764
7. Pangandaman, Sambolayan (KBL) 183,646
8. Sinsuat, Datu Blah (KBL) 182,457
9. Baga, Tomas (KBL) 171,656
10. Aratuc, Tomatic (KB) 165,795
11. Mandangan, Linang (KB) 165,032
12. Diaz, Ciscolario (KB) 159,977
13 Tamula, Fred (KB) 153,734

14. Legaspi Bonifacio (KB) 148,200
15. Guro, Mangontawar (KB) 139,386
16. Loma, Nemesio (KB) 107,455
17. Macapeges, Malamama (Independent) 101,350
(Votes of the independent candidates who actually were not in contention

omitted.)" (Page 6, Record, L-49705-09.).
A supervening panel headed by Commissioner of Elections, Hon. Venancio S. Duque,
had conducted hearings of the complaints of the petitioners therein of alleged
irregularities in the election records in all the voting centers in the whole province of
Lanao del Sur, the whole City of Marawi, eight (8) towns of Lanao del Norte, namely,
Baloi, Karomatan, Matungao, Munai, Nunungan, Pantao Ragat, Tagoloan and Tangcal,
seven (7) towns in Maguindanao, namely, Barrira, Datu Piang, Dinaig, Matanog, Parang,
South Upi and Upi, ten (10) towns in North Cotabato, namely, Carmen, Kabacan,
Kidapawan, Magpet, Matalam, Midsayap, Pigcawayan, Pikit, Pres. Roxas and Tulonan,
ana eleven (11) towns in Sultan Kudarat, namely, Bagumbayan, Columbio, Don Mariano
Marcos, Esperanza, Isulan, Kalamansig, Lebak, Lutayan, Palimbang, President Quirino
and Tacurong, by reason for which, petitioners had asked that the returns from said
voting centers be excluded from the canvass. Before the start of the hearings, the
canvass was suspended, but after the supervisory panel presented its report, on May
15, 1978, the Comelec lifted its order of suspension and directed the resumption of the
canvass to be done in Manila. This order was the one assailed in this Court. We issued a
restraining order.
After hearing the parties, the Court allowed the resumption of the canvass but issued the
following guidelines to be observed thereat:
"1. That the resumption of said canvass shall be held in the Comelec main
office in Manila starting not later than June 1, 1978;
"2. That in preparation therefor, respondent Commission on Elections shall
see to it that all the material election paraphernalia corresponding to all the voting
centers involved in Election Cases Nos. 78-8, 78-9, 78-10, 78-11 and 78-12 are
taken to its main office in Manila, more particularly, the ballot boxes, with their
contents, used during the said elections, the books of voters or records of voting
and the Listing or records of registered voters, on or before May 31, 1978;
"3. That as soon as the corresponding records are available, petitioners and
their counsel shall be allowed to examine the same under such security measures
as the respondent Board may determine, except the contents of the ballot boxes
which shall be opened only upon orders of either the respondent Board or
respondent Commission, after the need therefor has become evident, the purpose
of such examination being to enable petitioners and their counsel to expeditiously
determine which of them they would wish to be scrutinized and passed upon by
the Board as supporting their charges of election frauds and anomalies,
petitioners and their counsel being admonished, in this connection, that no
dilatory tactics should be indulged in by them and that only such records as
would support substantial objections should be offered by them for the scrutiny
by Board:
"4. That none of the election returns referred to in the petition herein shall be
canvassed without first giving the herein petitioners ample opportunity to make
their specific objections thereto, if they have any, and to show sufficient basis for
the rejection of any of the returns, and, this connection, the respondent Regional
Board of Canvassers should gave due consideration to the points raised in the
memorandum filed by said petitioners with the Commission on Elections in the
above cases dated April 26, 1978;
"5. That should it appear to the Board upon summary scrutiny of the records
to be offered by petitioners that there is sufficient indication that in the voting
centers concerned, no election was actually held and/or that election returns were
prepared either before the day of the election or at any other time, without
counting the ballots or without regard thereto or that there has been massive
substitution of voters, or that ballots and/or returns were prepared by the same
groups of persons or individuals or outside of the voting centers, the Board should
exclude the corresponding returns from the canvass;
"6. That appeals to the Commission on Elections from rulings of the Board
may be made only after all the returns in question in all the above five cases shall
have been passed upon by the Board and, accordingly, no proclamation shall be
made until after the Commission shall have finally resolved the appeal without
prejudice to recourse to this Court, if warranted as provided by the Code and the
Constitution, giving the parties reasonable time thereof;
"7. That the copies of the election returns found in the corresponding ballot
boxes shall be the one used in the canvass;
"8. That the canvass shall be conducted with utmost dispatch, to the end that
a proclamation, if feasible, may be made not later than June 10, 1978; thus, the
canvass may be terminated as soon as it is evident that the possible number of
votes in the still uncanvassed returns will no longer affect the general results of
the elections here in controversy;
"9. That respondent Commission shall promulgate such other directive not
inconsistent with this resolution as it may deem necessary to expedite the
proceedings herein contemplated and to accomplish the purposes herein
intended." (Pp. 8-9, Record.
On June 1, 1978, upon proper motion, said guidelines were modified:

". . . in the sense that the ballot boxes for the voting centers just referred to need
not be taken to Manila, EXCEPT those of the particular voting centers as to which
the petitioners have the right to demand that the corresponding ballot boxes be
opened in order that the votes therein may be counted because said ballots unlike
the election returns, have not been tampered with or substituted, in which
instances the result of the counting shall be the basis of the canvass, provided
that the voting centers concerned shall be specified and made known by
petitioners to the Regional Board of Canvassers not later than June 3, 1978; it
being understood, that for the purposes of the canvass, the petitioners shall not
be allowed to invoke any objection not already alleged in or comprehend within
the allegations in their complaint in the election cases above-mentioned." (Page 8,
Id.).
Thus, respondent Board proceeded with the canvass, with the herein petitioners
presenting objections, most of them supported by the report of handwriting and finger-
print experts who had examined the voting records and lists of voters in 878 voting
centers, out of 2,700 which they specified in their complaints or petitions in Election Cases
78-8, 78-9, 78-10, 78- 11 and 78-12 in the Comelec. In regard to 501 voting centers, the
records of which, consisting of the voters lists and voting records were not available and
could not be brought to Manila, petitioners asked that the results therein be completely
excluded from the canvass. On July 11, 1978, respondent Board terminated its canvass
and declared the result of the voting to be as follows:
NAMES OF CANDIDATE VOTES OBTAINED
"VALDEZ, Estanislao 436,069
DIMAPORO, Abdullah 429,961
PANGANDAMAN, Sambolayan 408,106
SINSUAT, Blah 403,445
AMPARO, Jesus 399,997
MANDANGAN, Linang 387,026
BAGA, Tomas 386,399
BADOY, Anacleto 374.999
ROLDAN, Ernesto 276.141
TOCAO, Sergio 299,914
ARATUC, Tomatic 205,829
GURO, Mangontawar 190,489
DIAZ, Ciscolario 190,077
TAMULA, Fred 180,280
LEGASPI, Bonifacio 174,996
MACAPEGES, Malamama 160,271
"(Pp. 11-12, Record.)
Without loss of time, the petitioner brought the resolution of respondent Board to the
Comelec. Hearing was held on April 26, 1978, after which hearing, the case was declared
submitted for decision. However, on August 30, 1978, the Comelec issued a resolution
stating inter alia that: LexLib
"In order to enable the Commission to decide the appeal properly:
"a. It will have to go deeper into the examination of the voting records and
registration records and in the case of voting centers whose voting and
registration records which have not yet been submitted for the Commission to
decide to open the ballot boxes; and
"b. To interview and get statements under oath of impartial and disinterested
persons from the area to determine whether actual voting took place on April 7,
1978, as well as those of the military authorities in the areas affected." (Page 12),
Record, L-49705-09.).
On December 11, 1978, the Comelec required the parties "to file their respective written
comments on the reports they shall periodically receive from the NBI Comelec team of
finger-print and signature experts within the inextendible period of seven (7) days from
their receipt thereof". According to counsel for Aratuc, et al., "petitioners submitted their
various comments on the report the principal gist of which was that it would appear
uniformly in all the reports submitted by the Comelec NBI experts that the registered
voters were not the ones who voted as shown by the fact that the thumb prints appearing
in Form 1 were different from the thumbprints of the voters in Form 5." But the Comelec
deemed a motion of petitioners asking that the ballot boxes corresponding to the voting
centers the records of which are not available be opened and that a date be set when the
statements of witnesses referred to in the August 30, 1978 resolution would be taken, on
the ground that in its opinion, it was no longer necessary to proceed with such opening of
ballot boxes and taking of statements.
For his part, counsel for petitioner Mandangan in G.R. No. L-49717-21 filed with Comelec
on December 19, 1978 a Preliminary Memorandum. To quote from the petition:
"On December 19, 1978, the KBL, through counsel, filed a 'Preliminary
Memorandum for the Kilusang Bagong Lipunan (KBL) Candidates on the
Comelec's Resolution of December 11, 1978,' a xerox copy of which is attached
hereto and made a part hereof as Annex 2, wherein they discussed the following
topics: (I) Brief History of the President Case; (II) Summary of Our Position and
Submission Before the Honorable Commission; and (III) KBL's Appeal Ad
Cautelam. And the fourth topic, because of its relevance to the case now before
this Honorable Court, we hereby quote for ready reference:
"IV
"OUR POSITION WITH RESPECT TO
THE RESOLUTION OF THE HONORABLE
COMMISSION OF DECEMBER 11, 1978
"We respectfully submit that the Resolution of this case by this Honorable
Commission should be limited to the precincts and municipalities involved in the
KB's Petitions in Cases Nos. 78-8 to 78-12, on which evidence had been submitted
by the parties, and on which the KB submitted the reports of their
handwriting/finger-print experts. Furthermore, it should be limited by the appeal of
the KB. For under the Supreme Court Resolution of May 23, 1978, original
jurisdiction was given to the Board, with appeal to this Honorable Commission.
Considerations of other matters beyond these would be, in our humble opinion,
without jurisdiction.
"For the present, we beg to inform this Honorable Commission that we stand by
the reports and findings of the COMELEC/NBI experts us submitted by them to
the Regional Board of Canvassers and as confirmed by the said Regional Board
of Canvassers in its Resolution of July 11, 1978, giving the 8 KBL candidates the
majorities we have already above mentioned. The Board did more than make a
summary scrutiny of the records' required by the Supreme Court Resolution,
Guideline No. 5, of May 23, 1978. Hence, if for lack of material time we cannot file
any Memorandum within the non-extendible period of seven (7) days, we would
just stand by said COMELEC/NBI experts' reports to the Regional Board, as
confirmed by the Board (subject to our appeal ad cautelam)."
"The COMELEC sent to the parties copies of the reports of the NBI-COMELEC
experts. For lack of material time due to the voluminous reports and number of
voting centers involved, the Christmas holidays, and our impression that the
COMELEC will exercise only its appellate jurisdiction, specifically as per resolution
of this Honorable Court of May 23, 1978 (in G.R. No. L-48097), we, the KBL, did
not comment any more on said reports." (Pp. 5-6, Record, L-49717-21.)
On January 13, 1979, the Comelec rendered its resolution being assailed in these cases,
declaring the final result of the canvass to be as follows:
"CANDIDATES VOTES
VALDEZ, Estanislao 319,514
DIMAPORO, Abdullah 289,751
AMPARO, Jesus 286,180
BADOY, Anacleto 285,985
BAGA, Tomas 271,473
PANGANDAMAN, Sambolayan 271,393
SINSUAT, Blah 269,905
ROLDAN, Ernesto 268,287
MANDANGAN, Linang 251,226
TOCAO, Sergio 229,124
DIAZ, Ciscolario 187,986
ARATUC, Tomatic 183,316
LEGASPI, Bonifacio 178,564
TAMULA, Fred 177,270
GURO, Mangontawar 163,449
LOMA, Nemesio 129,450"
(Page 14, Record, L-49705-09.)
It is alleged in the Aratuc petition that:

"The Comelec committee grave abuse of discretion, amounting to lack of
jurisdiction:
"1. In not pursuing further the examination of the registration records and
voting records from the other voting centers questioned by petitioners after it
found proof of massive substitute voting in all of the voting records and
registration records examined by Comelec and NBI experts;
"2. In including in the canvass returns from the voting centers whose book of
voters and voting records could not be recovered be the Commission in spite of its
repeated efforts to retrieve said records;
"3. In not excluding from the canvass returns from voting centers showing a
very high percentage of voting and coupled with massive substitution of voters is
proof of manufacturing of election returns;

"4. In denying petitioners' petition for the opening of the ballot boxes from
voting centers whose records are not available for examination to determine
whether or not there had been voting in said voting centers;
"5. In not identifying the ballot boxes that had no padlocks and Especially
those that were found to be empty while they were shipped to Mania pursuant to
the directive of the Commission in compliance with the guidelines of this
Honorable Court;
"6. In not excluding from the canvass returns where the results of
examination of the voting records and registration records show that the
thumbprints of the voters in CE Form 5 did not correspond to those of the
registered voters as shown in CE Form 1;
"7. In giving more credence to the affidavits of chairmen and members of the
voting centers, municipal treasurers and other election officials in the voting
centers where irregularities had been committed and not giving credence to the
affidavits of watchers of petitioners;
"8. In not including among those questioned before the Board by petitioners
those include among the returns questioned by them in their Memorandum filed
with the Commission on April 26, 1978 filed which Memorandum was attached
as Annex 'I' to their petition filed with this Honorable Court said in its Guidelines
should be considered by the Board in the course of the canvass (Guidelines No.
4)." (Pp. 15-16, Record, Id.).
On the other hand, the Mandangan petition submits that the Comelec committed the
following errors: LLpr
"1. In erroneously applying the earlier case of Diaz vs. Commission on

Elections (November 29, 1971; 42 SCRA 426), and particularly the highly
restrictive criterion that when the when obtained by the candidates with the
highest number of votes exceed the total number of highest possible valid votes,
the COMELEC ruled to exclude from the canvass the election returns reflecting
such results, under which the COMELEC excluded 1,004 election returns, involving
around 100,000 votes, 95% of which are for KBL candidate, particularly the
petitioner Linang Mandangan, and which rule is so patently unfair, unjust and
oppressive.
"2. In not holding that the real doctrine in the Diaz-Case is not the total
exclusion of election returns simple because the total number of votes exceed to
total number of highest possible valid votes, but 'even if all to votes cast by
persons identified as registered voters were added to the votes cast by persons
who can not be definitely ascertained as registered or not, and granting, ad
arguendo, that all of them voted for respondent Daoas, still the resulting total is
much below the number of votes credited to the latter in returns for Sagada, 'and
that 'of the 2,188 ballots cast in Sagada, nearly one half (1,012) were cast by
persons definitely identified as not registered therein,' or still more than 40% of
substitute voting which was the rule followed in the later case of Bashier/Basman
(Diaz Case, November 19, 1971, 42 SCRA 426,432).
"3. In not applying the rule and formula in the later case of Bashier and
Basman vs. Commission on Elections (February 24, 1972, 43 SCRA 238) which
was the one followed by the Regional Board of Canvassers, to wit:
'In Basman vs. Comelec (L-33728, Feb. 24, 1972) the Supreme Court
upheld the ruling of the Comelec in setting the standard of 40% excess
votes to justify the exclusion of election returns. In line with the above
ruling, the Board of Canvassers may likewise set aside election returns with
40% substitute votes. Likewise, where excess voting occurred and the
excess was such as to destroy the presumption of innocent mistake, the
returns was excluded.
(COMELEC'S Resolution, Annex 1 hereof, p. 22), which this Honorable Court must
have meant when its Resolution of May 23, 1978 (G.R. No. L-48097), it referred to
'massive substitution of voters.'
"4. In examining, through the NBI/COMELEC experts, the records in more than
878 voting centers examined by the KB experts and passed upon by the Regional
Board of Canvassers which was all that was within its appellate jurisdiction; is
examination of more election records to make a total of 1,085 voting centers
(COMELEC's Resolution, Annex 1 hereof, p. 100), being beyond its jurisdiction and
a denial of due process as far as the KBL, particularly the petitioner Mandangan,
were concerned because they were informed of it only in December, 1978, long
after the case has been submitted for decision in September, 1978; and the
statement that the KBL acquiesced to the same is absolutely without foundation.
"5. In excluding election returns from areas where the conditions of peace and
order were allegedly unsettled or where there was a military operation going on
immediately before and during elections and where the voter turn out was high
(90% to 100%), and where the people had been asked to evacuate, as a ruling
without jurisdiction and in violation of due process because no evidence was at
all submitted by the parties before the Regional Board of Canvassers." (Pp. 23-25,
Record, L-47917-21.).
Now before discussing the merits of the foregoing contentions, it is necessary to clarify
first the nature and extent of the Supreme Court's power of review in the premises. The
Aratuc petition is expressly predicated on the ground that respondent Comelec
"committed grave abuse of discretion, amounting to lack of jurisdiction" in eight
specifications. On the other hand, the Mandangan petition raises pure questions of law and
jurisdiction. In other words, both petitions invoked the Court's certiorari jurisdiction, not its
appellate authority of review. cdphil
This is as it should be. While under the Constitution of 1935, "the decisions, orders and
rulings of the Commission shall be subject to review by the Supreme Court" (Sec. 2, first
paragraph, Article X) and pursuant to the Rules of Court the petition for "certiorari or
review" shall be on the ground that the Commission "has decided a question of substance
not theretofore determined by the Supreme Court, or has decided it in a way not in accord
with law or the applicable decisions of the Supreme Court" (Sec. 3, Rule 43), and such
provisions refer not only to election contests but even to pre-proclamation proceedings,
the 1973 Constitution provides somewhat differently thus: "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 this receipt of a copy thereof" (Section 11, Article XII c), even
as it ordains that the Commission shall "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" (Section 2 (2).)
Correspondingly, the Election Code of 1978, which is the first legislative construction of
the pertinent constitutional provisions, makes the Commission also the "sole judge of all
pre-proclamation controversies" and further provides that "any of its decisions, orders or
rulings (in such controversies) shall be final and executory", just as in election contests,
"the decision of the Commission shall be final, and executory and inappealable." (Section
193)
It is at once evident from these constitutional and statutory modifications that there is a
definite tendency to enhance and invigorate the role of the Commission on Elections as the
independent constitutional body charged with the safeguarding of free, peaceful and
honest elections. The framers of the new Constitution must be presumed to have definite
knowledge of what it means to make the decisions, orders and rulings of the Commission
"subject to review by the Supreme Court". And since instead of maintaining that provision
intact, it ordained that the Commission's actuations be instead "brought to the Supreme
Court on certiorari", We cannot insist that there was no intent to change the nature of the
remedy, considering that the limited scope of certiorari, compared to a review, is well
known in remedial law.
Withal, as already stated, the legislative construction of the modified pertinent
constitutional provision is to the effect that the actuations of the Commission are final,
executory and even inappealable. While such construction does not exclude the general
certiorari jurisdiction of the Supreme Court which inheres in it as the final guardian of the
Constitution, particularly, of its imperious due process mandate, it correspondingly
narrows down the scope and extent of the inquiry the Court is supposed to undertake to
what is strictly, the office of certiorari as distinguished from review. We are of the
considered opinion that the statutory modifications are consistent with the apparent new
constitutional intent. Indeed, it is obvious that to say that actuations of the Commission
may be brought to the Supreme Court on certiorari technically connotes something less
than saying that the same "shall be subject to review by the Supreme Court", when it comes
to the measure the Court's reviewing authority or prerogative in the premises.
A review includes digging into the merits and unearthing errors of judgment, while
certiorari deals exclusively with grave abuse of discretion, which may not exist even when
the decision is otherwise erroneous. Certiorari implies an indifferent disregard of the law,
arbitrariness and caprice, an omission to weigh pertinent considerations, a decision
arrived at without rational deliberation. While the effects of an error of judgment may not
differ from that of an indiscretion, as a matter of policy, there are matters that by their
nature ought to be left for final determination to the sound discretion of certain officers or
entities, reserving it to the Supreme Court to insure the faithful observance of due process
only in cases of patent arbitrariness.cdrep
Such, to Our mind, is the constitutional scheme relative to the Commission on Elections.
Conceived by the charter as the effective instrument to preserve the sanctity of popular
suffrage, endowed with independence and all the needed con-comittant powers, it is but
proper that the Court should accord the greatest measure of presumption of regularity to
its course of action and choice of means in performing its duties, to the end that it may
achieve its designed place in the democratic fabric of our government. Ideally, its
members should be free from all suspicions of partisan inclinations, but the fact that
actually some of them have had stints in the arena of politics should not, unless the
contrary is shown, serve as basis for denying to its actuations the respect and
consideration that the Constitution contemplates should be accorded to it, in the same
manner that the Supreme Court itself which from time to time may have members drawn
from the political ranks or even from the military is at all times deemed insulated from
every degree or form of external pressure and influence as well as improper internal
motivations that could arise from such background or orientation.
We hold, therefore, that under the existing constitutional and statutory provisions, the
certiorari jurisdiction of the Court over orders, rulings and decisions of the Comelec is not
as abroad as it used to be and should be confined to instances of grave abuse of
discretion amounting to patent and substantial denial of due process. Accordingly, it is in
this light that We shall proceed to examine the opposing contentions of the parties in
these cases.
THE MANDANGAN CASE
Being more simple in Our view, We shall deal with the petition in G.R. No. L-49717-21 first.
The errors assigned in this petition boil down to two main propositions, namely, (1) that it
was an error of law on the part of respondent Comelec to have applied to the extant
circumstances hereof the ruling of this Court in Diaz vs. Comelec, 42 SCRA 426 instead of
that of Bashier vs. Comelec, 43 SCRA 238; and (2) that respondent Comelec exceeded its
jurisdiction and denied due process to petitioner Mandangan in extending its inquiry
beyond the election records of "the 878 voting centers examined by the KB experts and
passed upon by the Regional Board of Canvassers" and in excluding from the canvass the
returns, showing 90 to 100% voting, from voting centers where military operations were
certified by the Army to be going on, to the extent that said voting centers had to be
transferred to the poblaciones, the same being unsupported by evidence.
Anent the first proposition, it must be made clear that the Diaz and Bashier rulings are not
mutually exclusive of each other, each being an outgrowth of the basic rationale of
statistical improbability laid down in Lagumbay vs. Comelec and Climaco, 16 SCRA 176.
Whether they should be applied together or separately-or which of them should be applied
depends on the situation on hand. In the factual milieu of the instant case as found by the
Comelec, We see no cogent reason, and petitioner has not shown any, why returns in voting
centers showing that the votes of the candidate obtaining the highest possible number of
valid votes cast therein should not be deemed as spurious and manufactured just because
the total number of excess votes in said voting centers were not more than 40%. Surely,
this is not the occasion, considering the historical antecedents relative to the highly
questionable manner in which elections have been held in the past in the provinces herein
involved, of which the Court has judicial notice as attested by its numerous decisions in
cases involving practically every such election, of the Court to move a whit back from the
standards it has enunciated in those decisions.
In regard to the jurisdictional and due process points raised by herein petitioner, it is of
decisive importance to bear in mind that under Section 168 of the Revised Election Code
of 1978, "the Commission (on Elections) shall have direct control and supervision over the
board of canvassers" and that relatedly, Section 176 of the same Code provides that it
"shall be the sole judge of all pre-proclamation controversies." While nominally, the
procedure of bringing to the Commission objections to the actuations of boards of
canvassers has been quite loosely referred to in certain quarters, even by the Commission
and by this Court, such as in the guidelines of May 23, 1978 quoted earlier in this opinion,
as an appeal, the fact of the matter is that the authority of the Commission in reviewing
such actuations does not spring from any appellate jurisdiction conferred by any specific
provision of law, for there is none such provision anywhere in the Election Code, but from
the plenary prerogative of direct control and supervision endowed to it by the above-
quoted provisions of Section 168. And in administrative law, it is a too well settled
postulate to need any supporting citation here, that a superior body or office having
supervision and control over another may do directly what the latter is supposed to do or
ought to have done. llcd
Consequently, anything said in Lucman vs. Dimaporo, 33 SCRA 387, cited by petitioner, to
the contrary notwithstanding, We cannot fault respondent Comelec for its having extended
its inquiry beyond that undertaken by the Board of Canvassers. On the contrary, it must be
stated that Comelec correctly and commendably asserted its statutory authority born of
its envisaged constitutional duties vis-a-vis the preservation of the purity of elections and
electoral processes and procedures in doing what petitioner claims it should not have
done. Incidentally, it cannot be said that Comelec went further than even what Aratuc, et al.
have asked, since said complainants had impugned from the outset not only the returns
from the 878 voting centers examined by their experts but all those mentioned in their
complaints in the election cases filed originally with the Comelec enumerated in the
opening statements hereof, hence respondent Comelec had that much field to work on.
The same principle should apply in respect to the ruling of the Commission regarding the
voting centers affected by military operations. It took cognizance of the fact, not
considered by the board of canvassers, that said voting centers had been transferred to
the poblaciones. And, if only for purposes of pre-proclamation proceedings, We are
persuaded it did not constitute a denial of due process for the Commission to have taken
into account, without the need or presentation of evidence by the parties, a matter so
publicly notorious as the unsettled situation of peace and order in some localities in the
provinces herein involved that they may perhaps be taken judicial notice of, the same being
capable of unquestionable demonstration. (See 1, Rule 129).
In this connection, We may as well, perhaps, say here as later that regrettably We cannot,
however, go along with the view, expressed in the dissent of our respected Chief Justice,
that from the fact that some of the voting centers had been transferred to the poblaciones
there is already sufficient basis for Us to rule that the Commission should have also
subjected all the returns from the other voting centers of the same municipalities, if not
provinces, to the same degree of scrutiny as in the former. The majority of the Court feels
that had the Commission done so, it would have fallen into the error precisely alleged by
petitioner Mandangan about denial of due process, for it is relatively unsafe to draw
adverse conclusions us to the exact conditions of peace and order in those other voting
centers without at least some prima facie evidence to rely on considering that there is no
allegation, much less any showing at all that the voting centers in question are so close to
those excluded by the Commission as to warrant the inescapable conclusion that the
relevant circumstances found by the Comelec as obtaining in the latter were identical to
those in the former.
Premises considered, the petition in G.R. Nos. L-49717-21 is hereby dismissed, for lack of
merit.
THE ARATUC ET AL. PETITION
Of the eight errors assigned by herein petitioners earlier adverted to, the seventh and the
eight do not require any extended disquisition. As to the issue of whether the elections in
the voting centers concerned were held on April 7, 1978, the date designated by law, or
earlier, to which the seventh alleged error is addressed, We note that apparently petitioners
are not seriously pressing on it anymore, as evidenced by the complete absence of any
reference thereto during the oral argument of their counsel and the practically cavalier
discussion thereof in the petition. In any event, We are satisfied from a careful review of
the analysis by the Comelec in its resolution now before Us that it took pains to consider
as meticulously as the nature of the evidence presented by both parties would permit all
the contentions of petitioners relative to the weight that should be given to such evidence.
The detailed discussion of said evidence is contained in not less than nineteen pages (pp.
70-89) of the resolution. In these premises, We are not prepared to hold that Comelec
acted wantonly and arbitrarily in drawing its conclusions adverse to petitioners' position. If
errors there are in any of those conclusions, they are errors of judgment which are not
reviewable in certiorari, so long as they are founded on substantial evidence.
As to eighth assigned error. the thrust of respondents' comment is that the results in the
voting centers mentioned in this assignment of error had already been canvassed at the
regional canvassing center in Cotabato City. Again, We cannot say that in sustaining the
board of canvassers in this regard, Comelec gravely abused its discretion, if only because
in the guidelines set by this Court, what appears to have been referred to is, rightly or
wrongly, the resumption only of the canvass, which does not necessarily include the
setting aside and repetition of the canvass already made in Cotabato City.
The second and fourth assignments of error concern the voting centers the corresponding
voter's record (C.E. Form 1) and record of voting, (C.E. Form 6) of which have never been
brought to Manila because they were not available. The record is not clear as to how many
are these voting centers. According to petitioners they are 501, but in the Comelec
resolution in question, the number mentioned is only 408, and this number is directly
challenged in the petition. Under the second assignment, it is contended that the Comelec
gravely abused its discretion in including in the canvass the election returns from these
voting centers and, somewhat alternatively, it is alleged as fourth assignment that
petitioners' motion for the opening of the ballot boxes pertaining to said voting centers
was arbitrarily denied by respondent Comelec. prcd
The resolution under scrutiny explains the situation that confronted the Commission in
regard to the 408 voting centers referred to as follows:
"The Commission had the option of excluding from the canvass the election
returns under this category. By deciding to exclude, the Commission would be
summarily disenfranchising the voters registered in the voting centers affected
without any basis. The Commission could also order the inclusion in the canvass
of these election returns under the injunction of the Supreme Court that extreme
caution must be exercised in rejecting returns unless these are palpably irregular.
The Commission chose to give prima facie validity to the election returns
mentioned and uphold the votes cast by the voters in those areas. The
Commission held the view that the failure of some election officials to comply
with Commission orders (to submit the records) should not prejudice the right of
suffrage of the citizens who were not parties to such official disobedience. In the
case of Lino Luna vs. Rodriguez, 39 Phil. 208, the Supreme Court ruled that when
voters have honestly cast their ballots, the same should not be nullified because
the officers appointed under the law to direct the election and guard the purity of
the ballot have not complied with their duty. (cited in Laurel on Elections, p. 24)"
(Pp. 139-140, Record).
On page 14 of the comment of the Solicitor General, however, it is stated that:

"At all events, the returns corresponding to these voting centers were examined by
the Comelec and 141 of such returns were excluded, as follows:

'SUMMARY
PROVINCE TOTAL EXCLUDED INCLUDED
Lanao del Norte 30 — 30
Lanao del Sur 342 137 205
Maguindanao 21 1 20
North Cotabato 7 1 6
Sultan Kudurat 12 2 10
—— —— ——
Totals 412 141 271"

==== ==== ====
(Page 301, Record.)
This assertion has not been denied by petitioners.

Thus, it appears that precisely because of the absence or unavailability of the CE Forms 1
and 5 corresponding to the more than 400 voting centers concerned in our present
discussion, the Comelec examined the returns from said voting centers to determine their
trustworthiness by scrutinizing the purported relevant data appearing on their faces,
believing that such was the next best thing that could be done to avoid total
disenfranchisement of the voters in all of them. On the other hand, petitioners' insist that
the right thing to do was to order the opening of the ballot boxes involved.
In connection with such opposing contentions, Comelec's explanation in its resolution is:
". . . The commission had it seen fit to so order, could have directed the opening of
the ballot boxes. But the Commission did not see the necessity of going to such
length in a proceeding that was summary in nature and decided that there was
sufficient bases for the resolution of the appeal. That the Commission has
discretion to determine when the ballot boxes should be opened is implicit in the
guidelines set by the Supreme Court which states that '. . . the ballot boxes [which]
shall be opened only upon orders of either the respondent Board or respondent
Commission, after the need therefor has become evident . . .' (guideline No. 3;
italics supplied). Furthermore, the Court on June 1, 1978, amended the guidelines
by providing that the "ballot boxes for the voting centers . . . need not be taken to
Manila, EXCEPT those of the particular centers as to which the petitioners have
the right to demand that the corresponding ballot boxes he opened . . . provided
that the voting centers concerned shall be specified and made known by
petitioners to the Regional Board of Canvassers not later than June 3, 1978 . . .'
(emphasis supplied). The KB, candidates did not take advantage of the option
granted them under these guidelines.' (Pp. 106-107, Record.)
Considering that Comelec, if it had wished to do so, had the facilities to identify on its own
the voting centers without CE Form, 1 and 5, thereby precluding the need for the
petitioners having to specify them, and under the circumstances the need for opening the
ballot boxes in question should have appeared to it to be quite apparent, it may be
contended that Comelec would have done greater service to the public interest had it
proceeded to order such opening, as it had announced it had thoughts of doing in its
resolution of August 30, 1978. On the other hand, We cannot really blame the Commission
too much, since the exacting tenor of the guidelines issued by Us left it with very little
elbow room, so to speak, to use its own discretion independently of what We had ordered.
What could have saved matters altogether would have been a timely move on the part of
petitioners on or before June 3, 1978, as contemplated in Our resolution. After all, come to
think of it, that the possible outcome of the opening of the ballot boxes would favor the
petitioners was not a certainty — the contents thereof could conceivably boomerang
against them, such as, for example, if the ballots therein had been found to be regular and
preponderantly for their opponents. Having in mind that significantly, petitioners filed their
motion for opening only on January 9, 1979, practically on the eve of the promulgation of
the resolution, We hold that by having adhered to Our guidelines of June 1, 1978, Comelec
certainly cannot be held to be guilty of having gravely abused its discretion, whether in
examining and passing on the returns from the voting centers referred to in the second
and fourth assignments of error in the canvass or in denying petitioners' motion for the
opening of the ballot boxes concerned.
The first, third and sixth assignment of errors involve related matters and maybe
discussed together. They all deal with the inclusion in or exclusion from the canvass of
certain returns on the basis of the percentage of voting in specified voting centers and the
corresponding findings of the Comelec on the extent of substitute voting therein as
indicated by the result of either the technical examination by experts of the signatures and
thumb-prints of the voters thereat.
To begin with, petitioners' complaint that the Comelec did not examine and study 1,694 of
the records in all the 2,775 voting centers questioned by them is hardly accurate. To be
more exact, the Commission excluded a total of 1,267 returns coming under four
categories namely: 1,001 under the Diaz, supra, ruling, 79 because of 90-100% turnout of
voters despite military operations, 105 palpably manufactured ones and 82 returns
excluded by the board of canvassers on other grounds. Thus, 45.45% of the claims of the
petitioners were sustained by the Comelec. In contrast, in the board of canvassers, only
453 returns were excluded. The board was reversed as to 6 of these, and 821 returns were
excluded by Comelec over and above those excluded by the board. In other words, the
Comelec almost doubled the exclusions by the board. llcd
Petitioners would give the impression by their third assignment of error that Comelec
refused to consider high percentage of voting, coupled with mass substitute voting as
proof that the pertinent returns had been manufactured. That such was not the case is
already shown in the above specifications. To add more, it can be gleaned from the
resolution that in respect to the 1,065 voting centers in Lanao del Sur and Marawi City
where a high percentage of voting appeared, the returns from the 867 voting centers were
excluded by the Comelec and only 198 were included a ratio of roughly 78% to 22%. The
following tabulation drawn from the figures in the resolution shows hour the Comelec went
over those returns center by center and acted on them individually:
"90% — 100% VOTING
MARAWI CITY AND LANAO DEL SUR
NO. OF V/C THAT V/C WITH 90% to 100%

MUNICIPALITIES FUNCTIONED VOTING No. of
V/C Excluded Included

Marawi City 151 112 107 5
Bacolod Grande 28 28 27 1
Balabagan 53 53 49 4
Balindong 22 22 15 7
Bayang 29 20 13 7
Binidayan 37 33 29 4
Buadiposo Buntoug 41 10 10 0
Bubong 24 23 21 2
Bumbaran 21 (all excluded)
Butig 35 33 32 1
Calanogas 23 21 21 0
Ditsaan-Ramain 42 39 38 1
Ganassi 39 38 23 15
Lumba Bayabao 64 63 47 16
Lumbatan 30 28 17 11
Lumbayanague 37 33 28 5
Madalum 14 13 6 7
Madamba 20 20 5 15
Maguing 57 55 53 2
Malabang 59 47 5 42
Marantao 79 63 41 22
Marugong 37 35 32 3
Masiu 27 26 24 2
Pagayawan 15 13 9 4
Piagapo 39 39 36 3
Poona-Bayabao 44 44 42 2
Pualas 23 20 20 0
Saguiaran 36 32 21 11
Sultan Gumander 35 31 31 0
Tamparan 24 21 15 6
Taraka 31 31 31 0
Tubaran 23 19 19 0
— — — —

TOTALS: Marawi &
Lanao del Sur 1,218 1,065 867 198"

==== ==== === ===
We are convinced, apart from presuming regularity in the performance of its duties, that
there is enough showing in the record that it did examine and study the returns and
pertinent records corresponding to all the 2775 voting centers subject of petitioners'
complaints below. In one part of its resolution the Comelec states:
"The Commission as earlier stated examined on its own the Books of Voters
(Comelec Form No. 1) and the Voters Records Comelec Form No. 5) to determine
for itself which of these election forms needed further examination by the
COMELEC-NBI experts. The Commission, aware of the summary nature of this
pre-proclamation controversy, believes that it can decide, using common sense
and perception, whether the election forms in controversy needed further
examination by the experts based on the presence or absence of patent signs of
irregularity." (Pp. 137-138, Record.)
In the face of this categorical assertion of fact of the Commission, the bare charge of
petitioners that the records pertaining to the 1,694 voting centers assailed by them
should not create any ripple of serious doubt. As We view this point under discussion,
what is more factually accurate is that those records complained of were not examined
with the aid of experts and that Comelec passed upon the returns concerned "using
common sense and perception only." And there is nothing basically objectionable in
this. The defunct Presidential, Senate and House Electoral Tribunals examined, passed
upon and voided millions of votes in several national elections without the assistance
of experts and "using" only "common sense and perception". No one ever raised any
eyebrows about such procedure. Withal, what we discern from the resolution is that
Comelec preliminary screened the records and whatever it could not properly pass
upon by "using common sense and perception" it left to the experts to work on. We
might disagree with he Comelec as to which voting center should be excluded or
included, were We to go over the same records Ourselves, but still a case of grave
abuse of discretion would not come out, considering that Comelec cannot be said to
have acted whimsically or capriciously or without any rational basis, particularly if it is
considered that in many respects and from the very nature of our respective functions,
becoming candor would dictate to Us to concede that the Commission is in a better
position to appreciate and assess the vital circumstances closely and accurately. By
and large, therefore, the rst, third and sixth assignments of error of the petitioners are
not well taken. cdll
The fifth assignment of error is in Our view moot and academic. The identification of the
ballot boxes in defective condition, in some instances open and allegedly empty, is at best
of secondary import because, as already discussed, the records related thereto were after
all examined, studied and passed upon. If at all, deeper inquiry into this point would be of
real value in an electoral protest.
CONCLUSION
Before closing, it may not be amiss to state here that the Court had initially agreed to
dispose of the cases in a minute resolution, without prejudice to an extended or reasoned
out opinion later, so that the Court's decision may be known earlier. Considering, however,
that no less than the Honorable Chief Justice has expressed misgivings as to the propriety
of yielding to the conclusions of respondent Commission because in his view there are
strong considerations warranting further meticulous inquiry of what he deems to be
earmarks of seemingly traditional faults in the manner elections are held in the
municipalities and provinces herein involved, and he is joined in this pose by two other
distinguished colleagues of Ours, the majority opted to ask for more time to put down at
least some of the important considerations that impelled Us to see the matters in dispute
the other way, just as the minority bidded for the opportunity to record their points of view.
In this manner, all concerned will perhaps have ample basis to place their respective
reactions in proper perspective.
In this connection, the majority feels it is but meet to advert to the following portion of the
ratiocination of respondent Board of Canvassers adopted by respondent Commission
with approval in its resolution under question:
"First of all this Board was guided by the legal doctrine that canvassing boards
must exercise "extreme caution" in rejecting returns and they may do so only
when the returns are palpably irregular. A conclusion that an election return is
obviously manufactured or false and consequently should be disregarded in the
canvass must be approached with extreme caution, and only upon the most
convincing proof. Any plausible explanation, one which is acceptable to a
reasonable man in the light of experience and of the probabilities of the situation,
should suffice to avoid outright nullification, with the resulting
disenfranchisement of those who exercised their right of suffrage. (Anni vs.
Isquierdo et al, L-35918, June 28, 1974; Villalon v. Comelec, L-32008, August 31,
1970: Tagoranao v. Comelec, 22 SCRA 978). In the absence of strong evidence
establishing the spuriousness of the return, the basis rule of their being accorded
prima facie status as bona fide reports of the results of the count of the votes for
canvassing and proclamation purposes must be applied, without prejudice to the
question being tried on the merits with the presentation of evidence, testimonial
and real, in the corresponding electoral protest. (Bashier vs. Comelec, L-33692,
33699, 33728, 43 SCRA 236, February 24, 1972). The decisive factor is that where
it has been duly determined after investigation and examination of the voting and
registration records that actual voting and election by the registered voters had
taken place in the questioned voting centers, the election returns cannot be
disregarded and excluded with the resulting disenfranchisement of the voters, but
must be accorded prima facie status as bona fide reports of the results of the
voting for canvassing and proclamation purposes. Where the grievances relied
upon is the commission of irregularities and violation of the Election Law the
proper remedy is election protest. (Anni vs. Isquierdo et al, Supra)." (P. 59, Record,
L-49706-09).
The writer of this opinion has taken care to personally check on the citations to be doubly
sure they were not taken out of context, considering that most, if not all of them, arose
from similar situations in the very venues of the actual milieu of the instant cases, and We
are satisfied they do fit our chosen posture. More importantly, they actually came from the
pens of different members of the Court, already retired or still with Us, distinguished by
their perspicacity and their perceptive prowess. In the context of the constitutional and
legislative intent expounded at the outset of this opinion and evident in the modifications
of the duties and responsibilities of the Commission on Elections vis-a-vis the matters that
have concerned Us herein, particularly the elevation of the Commission as the "sole judge
of pre-proclamation controversies" as well as of all electoral contests, We find the
aforequoted doctrines compelling as they reveal through the clouds of existing
jurisprudence the polestar by which the future should be guided in delineating and
circumscribing separate spheres of action of the Commission as it functions in its equally
important dual role just indicated bearing as they do on the purity and sanctity of elections
in this country. cdrep
In conclusion, the Court finds insufficient merit in the petition to warrant its being given
due course. Petition dismissed, without pronouncement as to costs. Justices Fernando,
Antonio and Guerrero who are presently on official missions abroad voted for such
dismissal.
Fernando, Antonio, Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.
Teehankee, Aquino, and Abad Santos, JJ., took no part.
Makasiar and Herrera JJ., concurs in the dissenting opinion of the Chief Justice.
Separate Opinions
CASTRO, C.J., dissenting:
1
At the outset I must state that constraints of time effectively prevent me from writing an
extended dissent. Hence, this abbreviated exposition of my views.
For a clear understanding of the issues, a summary of the essential events relative to these
cases is necessary.
On April 7, 1978, elections of representatives to the Batasang Pambansa were held
throughout the Philippines. The cases at bar concern only the results of the elections in
Region XII (Central Mindanao) which comprises the provinces of Lanao del Sur, Lanao del
Norte, Maguindanao, North Cotabato and Sultan Kudarat, and the cities of Marawi, Iligan
and Cotabato. (The entire Region had a total of 4,107 voting centers, but only 3,984 were
functional).
On June 11, 1978, the Regional Board of Canvassers issued a resolution, over the objection
of the Konsensiya ng Bayan (KB) candidates, declaring all the eight Kilusan ng Bagong
Lipunan (KBL) candidates elected. Appeal was taken by the KB candidates to the Comelec.
On January 13, 1979, the Comelec issued its questioned resolution declaring seven KBL
candidates and one KB candidate as having obtained the first eight places, and ordering
the Regional Board of Canvassers to proclaim the winning candidates. The KB candidates
forth with interposed the present petition; in due time the respondents filed their
comments.
Oral argument was had before the Court for two days, specifically on January 31 and
February 1, 1979. Atty. Lino Patajo argued for and in behalf of the KB candidates,
Assemblyman Estanislao Fernandez for the KBL and the private respondents, and Solicitor
General Estelito P. Mendoza for the public respondents. The Court subjected the three
counsels to intensive interrogation. The cases were then submitted for decision in the
afternoon of February 1.
2
I have carefully read the entire record, more particularly the Comelec resolution of January
13, 1979, and I must confess that until now my mind cannot rest easy on a number of
questions sharply in issue, some of which are hereunder briefly discussed. LLjur
a. After the Comelec examined very closely the voting returns, books of voters and
voting records from 1,116 voting centers protested by the KB candidates, to the extent of
subjecting them to detailed documentary examination and fingerprint comparison by
Comelec experts, and thereafter annulled 31.84% of the votes cast, why did it refuse to
proceed to subject all the records of the remaining 1,659 voting centers protested by the
KB candidates to the same manner of close scrutiny?
b. Why did not the Comelec examine, utilizing the same meticulous method, similar
documents and records appertaining to a total of 164 voting centers in Lanao del Sur and
19 voting centers in Lanao del Norte — two provinces where concededly there had been
military operations — and an additional number of voting centers in the other provinces, all
of which registered a 100% turnout of voters? The peace and order conditions in the two
cities of Iligan and Cotabato on the day of the elections were normal, and yet the total
percentages of voting were only 79% and 52%, respectively. How then can the Comelec
explain why and how in many voting centers located in areas where there had been military
operations there was a voting turnout of 100%? Assuming that the KB candidates did not
call the attention of the Comelec — although they actually did — to the stark improbability
of 100% vote turnout in the said places, because the peace and order conditions were far
from normal it perforce devolved on the Comelec to conduct, motu proprio, an in-depth
and full-blown inquiry into this paradox. The record shows that there was 100% voting in
the whole of each of three municipalities, over 99% voting in each of thirteen other
municipalities, and an average 97% turnout in five more municipalities. Of inescapable
significance is the fact that most of these municipalities are located in the provinces of
Lanao del Sur and Lanao del Norte, the past election history of which is replete with the
perpetration of massive frauds, terrorism and scandalous substitutions of voters.
c. Why did the Comelec deny the motion of the KB candidates for the opening of ballot
boxes pertaining to a total of 408 voting centers — the voting records of which were not
available as they had somehow mysteriously disappeared — to determine whether or not
the election in each of the said voting centers was a sham? This remedial measure was
resorted to by the Comelec in 1969 when it ordered the opening of a number of ballot
boxes in the pre-proclamation contest in Lucman vs. Dimaporo in order to see whether or
not there were ballots in side them, without counting the ballots, and determine whether
there had been an actual election in each of the disputed precincts. In that case the
Supreme Court sustained the action of the Comelec.
d. Why did the Comelec include in the canvass the voting returns from some indicated
100 voting centers when the ballot boxes corresponding thereto were found to be
completely empty? And why did the Comelec also include in the canvass the election
returns corresponding to almost 200 ballot boxes found to be without padlocks?
3
Of incalculable significance is the absence of any statement in the Comelec resolution that
indicates that, granting that all the questions I have above raised would be resolved in
favor of the KB candidates, the election results would not be materially altered. Upon the
other hand, the KB candidates state categorically, with benefit of extrapolation, that the
election results would be considerably changed in their favor.
4

The majority of my brethren anchor their denial of the petition on two principal grounds,
namely:
a. The issues raised by the KB candidates would be better and properly ventilated in an
election protest; and
b. No grave abuse of discretion is discernible from the actuations of the Comelec.
Anent the first ground, it is a notorious fact in the history of Philippine politics that an
election protest not only is usually inordinately protracted but as well entails heavy and
prohibitive expenditure of time, money and effort on the part of the protestant. More than
this, should the protestant in the end win, very little time or none at all is left for him to
assume and discharge the duties of his office. In the meantime, the person previously
proclaimed elected continues to fraudulently represent the people who bad in law and in
fact duly elected someone else to represent them. cdphil
Besides, taking a broad view of the fundamental issues raised by the KB candidates, I am
of the opinion that resolution of these issues by the Comelec would not take more than six
months of conscientious labor — and surely this period is short, very short indeed,
compared to the time that will be wasted by the Comelec in deciding a formal electoral
protest.
Is it not time the Supreme Court asserted its powers in order to excise completely the Old
Society pernicious evil of "grab the proclamation at all costs"?
Anent the second ground, I squarely traverse the statement that no grave abuse of
discretion can be imputed to the Comelec. The grave misgivings I have above articulated
demonstrate what to my mind constitute the size and shape of the remissness of the
Comelec. And more compelling and overriding a consideration than the overwrought
technicality of "grave abuse of discretion" is the fundamental matter of the faith of the
people of Region XII in the electoral process. There will always be the nagging question in
the minds of the voters in that Region as to the legitimacy of those who will be proclaimed
elected under the Comelec resolution should the Court refuse to direct that body to
continue the meticulous search for legitimacy and truth.
5
Upon all the foregoing, it behooves the Court to remand these cases to the Comelec, with
the direction that that body immediately convene and, within an unextendible period and as
speedily as possible, resolve with definitiveness all the questions I have above posed,
under such unequivocal guidelines as the Court may prescribe.
For my part, unless and until this is done, I shall continue to entertain grave doubt as to the
correctness and validity of the results already reached by the Comelec, especially when
political history, placed in perspective, pointedly reminds me of the massive frauds,
terrorism and scandalous substitutions of voters that have characterized past elections in
the two Lanao provinces.
Makasiar and Herrera, JJ., concurs.
DE CASTRO, J., concurring:
The present case has afforded Us an early opportunity to examine and define the extent of
the power of judicial review as granted to the Supreme Court over any decision, order or
ruling of the Commission on Elections under the new Constitution the pertinent provision
of which reads:
"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." (Article XII, Constitution).
The Commission on Elections has been granted powers under the new Constitution which,
under the old Constitution, belonged either to the legislative body (Electoral Tribunals) or
to the courts. This is evident from the provision of the new Constitution which reads:
"(2) Be the sole judge of all contents relating to the elections, returns, and
qualification of all Members of the National Assembly and elective provincial and
city officials." (Section 2, Article XII, Constitution).
The Commission is thus envisioned to exercise exclusive powers on all electoral matters
except the right to vote, such as the enforcement and administration of laws relative to the
conduct of elections deciding administrative questions affecting elections, except those
involving the right to vote, but also those that heretofore have been regarded, as matters
for strictly judicial inquiry, such as the hearing and disposition of election contests, as is
doubtlessly shown by the transfer thereto of the powers previously conferred upon the
Electoral Tribunal of Congress and the Courts. (see Section 2, par. 2, Article XII, New
Constitution). This change may properly be viewed as having the intention to relieve the
Courts, particularly the Supreme Court, of those burdens placed upon them relating to the
conduct of election and matters incident thereto. It could have been, likewise, intended to
insulate judicial bodies from the baneful effects of partisan politics, the more deleterious
ones being those that could come from the higher seats of political power, such a those in
the Assembly and in the provincial and city government levels.
It is, therefore, my view that what was intended by the new Constitution is to limit the
intervention of the Supreme Court in the acts of the Commission as constitutional body
like said Court, but with broadened powers, allocating to it a domain as exclusive as that of
the legislative body (which includes the President or Prime Minister) on matters of
lawmaking, to that of "judicial inquiry". This power is confined to justifiable questions not
of political nature, and always involving alleged violation of constitutional rights or the
constitution itself. For a controversy of a political character, commonly referred to as
"political questions", is excluded from the scope of the Supreme Court's power of judicial
inquiry. 1 The exclusive character of the power conferred upon the Commission on
Elections, and considering that political rights, as distinguished from civil and personal or
property rights, 2 are for the most part, if not in their totality, the subject of its authority,
should counsel against an expansive intervention by the Supreme Court in the acts of the
Commission on Elections. With the confernment of exclusive authority on the electoral
process upon it, the Commission may be said to have been given full discretionary
authority, the exercise of which would give rise to a controversy involving a political
question. 3
What then is the test or criterion in determining whether the Supreme Court may exercise
its power under Article XII, Section 11 of the new Constitution? It is my humble submission
that the aforecited provision is merely a reassertion of the power of the Supreme Court, as
guardian of the Constitution and protector of constitutional rights, of which, under no
circumstance, could it be deprived, if our present constitutional system is to be
maintained. For it is a power constitutionally assigned to it as the essence of the high
judicial power of the Supreme Court, for the orderly and salutary apportionment of
governmental powers among the different branches of the government, as well as the
special constitutional bodies created to deal more effectively with specific matters
requiring governmental action. Cdpr
Examining the instant petition, nothing reveals itself as raising more than questions merely
affecting the conduct of the election held on April 7, 1978, much less a truly constitutional
question, aside perhaps from the allegation that the COMELEC undertook an examination
of election records beyond those examined during the pendency of the controversy before
the Regional Board of Canvassers, allegedly without notice to the petitioners, thus
intimating a violation of due process. This particular matter, however, can easily be
disposed of by citing the provision of Section 175 of the Electoral Code of 1978 which
reads:
". . . The Commission shall be the sole judge of all pre-proclamation controversies
and any of its decisions, orders or rulings shall be final and executory. It may,
motu proprio or upon written petition, and after due notice and hearing order the
suspension of the proclamation of a candidate-elect or annul any proclamation, if
one has been made, on any of the grounds mentioned in Sections 172, 173 and
174 hereof."
If the Commission has the power to suspend motu proprio the proclamation of a
candidate-elect, it must have the power to conduct inquiry into the cause for which it
ordains the suspension of the proclamation, such as making its own examination of the
integrity of election returns or inquiring into any relevant matter affecting the purity of the
ballot. Notice is required by the legal provision cited, but this must be notice to the party
adversely affected, the candidate elect whose proclamation is suspended. The action
taken by the COMELEC in examining additional election documents to those examined by
the KB experts during the pendency of the controversy with the Regional Board of
Canvassers was, therefore, one of which petitioners cannot be heard, nor have any reason,
one of which petitioners cannot be heard, nor have any reason, to complain, for it even
resulted in one KB candidate getting into the winners' column. If the COMELEC stopped at
a certain point in its examination, instead of going through all those questioned by the
petitioners, evidently due to time constraint as fixed in the guidelines, set by this Court, and
the summary character of pre-proclamation proceedings, it cannot be charged with abuse
of discretion, much less a grave one. It did not have the conduct the additional
examination, in the first place. The controversy which was heard and decided, in the first
instance, by the Regional Board of Canvassers, with guidelines set by this Court, was
appealed to the COMELEC. The latter's appellate authority was thus limited to a review of
the decision of the Board rendered on the basis of the evidence presented before it,
rendering its own decision on the basis of the same evidence, and no more. It incorporated
the result of its own examination of additional election returns, and found one KB as one of
the winning candidate, a fact clearly showing that COMELEC did examine the said
documents, otherwise, the result as previously declared by the Board of Canvassers with a
clean sweep of the KBL candidate would have remained unaltered.
Expounding more on the one circumstance inclining me to the theory that with the
enlarged power and broadened authority of the COMELEC which extends to and cover
virtually the entire electoral process, as exclusively as the power of legislation is
constitutionally lodged in the law-making body, what is given to the Supreme Court as its
reviewing authority over acts of the COMELEC is no more than what it could exercise under
its power of judicial inquiry with respect to acts of the legislative body, which is the
transfer to the COMELEC of the powers pertaining to the Electoral Tribunals and the
courts under the old Constitution over election contests, it must not be hard to concede
that with the composition of the electoral tribunals in which six of the justices of the
Supreme Court sit in said bodies, the Supreme Court could no longer exercise any
reviewing authority over the acts of the said electoral tribunals except possibly when
violation of the Constitution or constitutional rights are involved. With this limited concept
of this Court's authority over the defunct electoral tribunals now applied to an equally
constitutional body that the COMELEC is that took over the function of the Electoral
Tribunals, I would hesitate to hold that Supreme Court may grant the relief as in prayed for
in the present petition. LLjur
If this is so under the law and the Constitution, it should also be upon consideration of
public policy. The last elections were called by the President as a test or experiment as to
how the vital reforms and changes of political and social discipline and moral values he
has instituted to evolve a new order have affected the thinking and the attitudes of our
people. There should be extreme caution, if not restraint, in any act on our part that might
reflect on the success or failure of that experiment intended, at the same time as a big
stride in the way back to normalization. This is specially true in the field of politics where
the ills of the Old Society has been most grave, because our elections then as a
democratic process, have tarnished the image of our country as a representative
democracy. Except on very compelling reasons then, which I believe do not exist in the
case before Us, should we make any pronouncement that would detract on how
successful the last political exercise had been, as the first election held under the new
Constitution. We must refrain from imputing to the COMELEC which has been enlarged
with fresh mandate and a bigger trust by the Constitution failure in the performance of its
functions either by willful neglect, official incompetence, much less by deliberate partiality,
in the first real test of its capability.
In the light of the foregoing, I vote, in concurrence with the majority, to dismiss the petition,
first, as to the matter allegedly involving a violation of the petitioners' right of due process
on the ground that there was no denial thereof, and second, as to the other matters
involving no violation of constitutional rights, on the ground they are purely political
questions, and that in any case, no grave abuse of discretion has been committed by, much
less is there lack or excess of jurisdiction on the part of, the Commission on Elections.
Footnotes

1. Mabanag vs. Lopez Vito, 78 Phil. 1; Tañada & Macapagal vs. Cuenco, L-10520, February
28, 1967; Gonzales vs. Comelec, L-28196 and L-28224, November 9, 1967; The Plebiscite
Cases, 60 SCRA 30 (1973); Peralta vs. Commission on Elections, et al., L-4771, March 11,
1978; Juan T. David vs. Commission on Elections, et al., L-47803, March 11, 1978; Youth
Democratic Movement, et al. vs. Commission on Elections, L-47816, March 11, 1978;
Sanidad vs. Commission on Elections, 73 SCRA 333.
2. Political right consists in the power to participate directly or indirectly in the

establishment of the government. (Avelino vs. Cuenco, 77 Phil., 192).

3. A political question relates to "those question which under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which fall discretionary
authority has been delegated to the legislative or the executive branch of the
government. Tañada vs. Macapagal, G.R. No. L-10520, February 28, 1967).

EN BANC
[G.R. Nos. 95203-05. December 18, 1990.]
SENATOR ERNESTO MACEDA , petitioner, vs. ENERGY REGULATORY

BOARD (ERB); MARCELO N. FERNANDO, ALEJANDRO B. AFURONG;
REX V. TANTIONGCO; and OSCAR E. ALA, in their collective official
capacities as Chairman and Members of the Board (ERB),
respectively; CATALINO MACARAIG, in his quadruple official
capacities as Executive Secretary, Chairman of Philippine National
Oil Company; Office of the Energy Affairs, and with MANUEL
ESTRELLA, in their respective official capacities as Chairman and
President of the Petron Corporation; PILIPINAS SHELL PETROLEUM
CORPORATION; with CESAR BUENAVENTURA and REY GAMBOA as
chairman and President, respectively; CALTEX PHILIPPINES with
FRANCIS ABLAN, President and Chief Executive Officer; and the
Presidents of Philippine Petroleum Dealer's Association, Caltex
Dealer's Co., Petron Dealer's Asso., Shell Dealer's Asso. of the Phil.,
Liquefied Petroleum Gas Institute of the Phils., any and all
concerned gasoline and petrol dealers or stations; and such other
persons, officials, and parties, acting for and on their behalf; or in
representation of and/or under their authority , respondents.
[G.R. Nos. 95119-21. December 18, 1990.]
OLIVER O. LOZANO , petitioner, vs. ENERGY REGULATORY BOARD

(ERB), PILIPINAS SHELL PETROLEUM CORPORATION, CALTEX
(PHIL.), INC., and PETRON CORPORATION , respondents.
Padilla, Jimenez, Kintanar and Asuncion Law Firm for petitioner.

Diosdado L. Mendiola and Armando Batara for Pilipinas Shell.
Alikpala, De Guzman, Gamboa for Petron Corporation.
Joselia Poblador for Caltex, Philippines.
DECISION
SARMIENTO , J : p
The petitioners pray for injunctive relief, to stop the Energy Regulatory Board (Board
hereinafter) from implementing its Order, dated September 21, 1990, mandating a
provisional increase in the prices of petroleum and petroleum products, as follows:
PRODUCTS IN PESOS PER LITER
OPSF

Premium Gasoline 1.7700
Regular Gasoline 1.7700
Avturbo 1.8664
Kerosene 1.2400
Diesel Oil 1.2400
Fuel Oil 1.4900
Feedstock 1.4900
LPG 0.8487
Asphalts 2.7160
Thinners 1.7121 1
It appears that on September 10, 1990, Caltex (Philippines), Inc., Pilipinas Shell Petroleum
Corporation, and Petron Corporation proferred separate applications with the Board for
permission to increase the wholesale posted prices of petroleum products, as follows:
Caltex P3.2697 per liter
Shell 2.0338 per liter
Petron 2.00 per liter 2

and meanwhile, for provisional authority to increase temporarily such wholesale posted
prices pending further proceedings. Cdpr
On September 21, 1990, the Board, in a joint (on three applications) Order granted
provisional relief as follows:
WHEREFORE, considering the foregoing, and pursuant to Section 8 of Executive
Order No. 172, this Board hereby grants herein applicants' prayer for provisional
relief and, accordingly, authorizes said applicants a weighted average provisional
increase of ONE PESO AND FORTY-TWO CENTAVOS (P1.42) per liter in the
wholesale posted prices of their various petroleum products enumerated below,
refined and/or marketed by them locally. 3
The petitioners submit that the above Order had been issued with grave abuse of
discretion, tantamount to lack of jurisdiction, and correctible by certiorari.
The petitioner, Senator Ernesto Maceda, 4 also submits that the same was issued without
proper notice and hearing in violation of Section 3, paragraph (e), of Executive Order No.
172; that the Board, in decreeing an increase, had created a new source for the Oil Price
Stabilization Fund (OPSF), or otherwise that it had levied a tax, a power vested in the
legislature, and/or that it had "re-collected", by an act of taxation, ad valorem taxes on oil
which Republic Act No. 6965 had abolished.
The petitioner, Atty. Oliver Lozano, 5 likewise argues that the Board's Order was issued
without notice and hearing, and hence, without due process of law.
The intervenor, the Trade Union of the Philippines and Allied Services (TUPAS/FSM)-
W.F.T.U., 6 argues on the other hand, that the increase can not be allowed since the
respondents oil companies had not exhausted their existing oil stock which they had
bought at old prices and that they can not be allowed to charge new rates for stock
purchased at such lower rates.
The Court set the cases (in G.R. Nos. 95203-05) for hearing on October 25, 1990, in which
Senator Maceda and his counsel, Atty. Alexander Padilla, argued. The Solicitor General, on
behalf of the Board, also presented his arguments, together with Board Commissioner Rex
Tantiangco. Attys. Federico Alikpala, Jr. and Joselia Poblador represented the oil firms
(Petron and Caltex, respectively).
The parties were thereafter required to submit their memorandums after which, the Court
considered the cases submitted for resolution.
On November 20, 1990, the Court ordered these cases consolidated.
On November 27, 1990, we gave due course to both petitions.
The Court finds no merit in these petitions.
Senator Maceda and Atty. Lozano, in questioning the lack of a hearing, have overlooked the
provisions of Section 8 of Executive Order No. 172, which we quote:
"SECTION 8. Authority to Grant Provisional Relief . — The Board may, upon
the filing of an application, petition or complaint or at any stage thereafter and
without prior hearing, on the basis of supporting papers duly verified or
authenticated, grant provisional relief on motion of a party in the case or on its
own initiative, without prejudice to a final decision after hearing, should the Board
find that the pleadings, together with such affidavits, documents and other
evidence which may be submitted in support of the motion, substantially support
the provisional order: Provided, That the Board shall immediately schedule and
conduct a hearing thereon within thirty (30) days thereafter, upon publication and
notice to all affected parties.
LLphil
As the Order itself indicates, the authority for provisional increase falls within the above
provision.
There is no merit in the Senator's contention that the "applicable" provision is Section 3,
paragraph (e) of the Executive Order, which we quote:
(e) Whenever the Board has determined that there is a shortage of any
petroleum product, or when public interest so requires, it may take such steps as it
may consider necessary, including the temporary adjustment of the levels of
prices of petroleum products and the payment to the Oil Price Stabilization Fund
created under Presidential Decree No. 1956 by persons or entities engaged in the
petroleum industry of such amounts as may be determined by the Board, which
will enable the importer to recover its cost of importation.
What must be stressed is that while under Executive Order No. 172, a hearing is
indispensable, it does not preclude the Board from ordering, ex parte, a provisional
increase, as it did here, subject to its final disposition of whether or not: (1) to make it
permanent; (2) to reduce or increase it further; or (3) to deny the application. Section 37
paragraph (e) is akin to a temporary restraining order or a writ of preliminary attachment
issued by the courts, which are given ex parte, and which are subject to the resolution of
the main case.
Section 3, paragraph (e) and Section 8 do not negate each other, or otherwise, operate
exclusively of the other, in that the Board may resort to one but not to both at the same
time. Section 3(e) outlines the jurisdiction of the Board and the grounds for which it may
decree a price adjustment, subject to the requirements of notice and hearing. Pending that,
however, it may order, under Section 8, an authority to increase provisionally, without need
of a hearing, subject to the final outcome of the proceeding. The Board, of course, is not
prevented from conducting a hearing on the grant of provisional authority — which is of
course, the better procedure — however, it can not be stigmatized later if it failed to
conduct one. As we held in Citizens' Alliance for Consumer Protection v. Energy Regulatory
Board. 7
In the light of Section 8 quoted above, public respondent Board need not even
have conducted formal hearings in these cases prior to issuance of its Order of 14
August 1987 granting a provisional increase of prices. The Board, upon its own
discretion and on the basis of documents and evidence submitted by private
respondents, could have issued an order granting provisional relief immediately
upon filing by private respondents of their respective applications. In this respect,
the Court considers the evidence presented by private respondents in support of
their applications — i.e., evidence showing that importation costs of petroleum
products had gone up; that the peso had depreciated in value; and that the Oil
Price Stabilization Fund (OPSF) had by then been depleted — as substantial and
hence constitutive of at least prima facie basis for issuance by the Board of a
provisional relief order granting an increase in the prices of petroleum products. 8
We do not therefore find the challenged action of the Board to have been done in violation
of the due process clause. The petitioners may contest however, the applications at the
hearings proper.
Senator Maceda's attack on the Order in question on premises that it constitutes an act of
taxation or that it negates the effects of Republic Act No. 6965, can not prosper. Republic
Act No. 6965 operated to lower taxes on petroleum and petroleum products by imposing
specific taxes rather than ad valorem taxes thereon; it is, not, however, an insurance
against an "oil hike", whenever warranted, or is it a price control mechanism on petroleum
and petroleum products. The statute had possibly forestalled a larger hike, but it operated
no more. LLjur
The Board Order authorizing the proceeds generated by the increase to be deposited to
the OPSF is not an act of taxation. It is authorized by Presidential Decree No. 1956, as
amended by Executive Order No. 137, as follows:
SECTION 8. There is hereby created a Trust Account in the books of

accounts of the Ministry of Energy to be designated as Oil Price Stabilization
Fund (OPSF) for the purpose of minimizing frequent price changes brought about
by exchange rate adjustments and/or changes in world market prices of crude oil
and imported petroleum products. The Oil Price Stabilization Fund (OPSF) may be
sourced from any of the following:
a) Any increase in the tax collection from ad valorem tax or customs duty
imposed on petroleum products subject to tax under this Decree arising from
exchange rate adjustment, as may be determined by the Minister of Finance in
consultation with the Board of Energy;
b) Any increase in the tax collection as a result of the lifting of tax
exemptions of government corporations, as may be determined by the Minister of
Finance in consultation with the Board of Energy;
c) Any additional amount to be imposed on petroleum products to augment
the resources of the Fund through an appropriate Order that may be issued by the
Board of Energy requiring payment by persons or companies engaged in the
business of importing, manufacturing and/or marketing petroleum products;
d) Any resulting peso cost differentials in case the actual peso costs paid by
oil companies in the importation of crude oil and petroleum products is less than
the peso costs computed using the reference foreign exchange rates as fixed by
the Board of Energy.
Anent claims that oil companies can not charge new prices for oil purchased at old rates,
suffice it to say that the increase in question was not prompted alone by the increase in
world oil prices arising from tension in the Persian Gulf. What the Court gathers from the
pleadings as well as events of which it takes judicial notice, is that: (1) as of June 30, 1990,
the OPSF has incurred a deficit of P6.1 Billion; (2) the exchange rate has fallen to P28.00 to
$1.00; (3) the country's balance of payments is expected to reach $1 Billion; (4) our trade
deficit is at $2.855 Billion as of the first nine months of the year.
Evidently, authorities have been unable to collect enough taxes necessary to replenish the
OPSF as provided by Presidential Decree No. 1956, and hence, there was no available
alternative but to hike existing prices.
The OPSF, as the Court held in the aforecited CACP cases, must not be understood to be a
funding designed to guarantee oil firms' profits although as a subsidy, or a trust account,
the Court has no doubt that oil firms make money from it. As we held there, however, the
OPSF was established precisely to protect the consuming public from the erratic
movement of oil prices and to preclude oil companies from taking advantage of
fluctuations occurring every so often. As a buffer mechanism, it stabilizes domestic prices
by bringing about a uniform rate rather than leaving pricing to the caprices of the market.
In all likelihood, therefore, an oil hike would have probably been imminent, with or without
trouble in the Gulf, although trouble would have probably aggravated it. LLphil
The Court is not to be understood as having prejudged the justness of an oil price increase
amid the above premises. What the Court is saying is that it thinks that based thereon, the
Government has made out a prima facie case to justify the provisional increase in
question. Let the Court therefore make clear that these findings are not final; the burden,
however, is on the petitioners' shoulders to demonstrate the fact that the present
economic picture does not warrant a permanent increase.
There is no doubt that the increase in oil prices in question (not to mention another one
impending, which the Court understands has been under consideration by policy-makers)
spells hard(er) times for the Filipino people. The Court can not, however, debate the
wisdom of policy or the logic behind it (unless it is otherwise arbitrary), not because the
Court agrees with policy, but because the Court is not the suitable forum for debate. It is a
question best judged by the political leadership which after all, determines policy, and
ultimately, by the electorate, that stands to be better for it or worse off, either in the short
or long run.
At this point, the Court shares the indignation of the people over the conspiracy of events
and regrets its own powerlessness, if by this Decision it has been powerless. The
constitutional scheme of things has simply left it with no choice.
In fine, we find no grave abuse of discretion committed by the respondent Board in issuing
its questioned Order.
WHEREFORE, these petitions are DISMISSED. No costs.
SO ORDERED.
Narvasa, Gutierrez, Jr ., Cruz, Gancayco, Bidin, Griño Aquino, Medialdea and Regalado, JJ.,
concur.
Fernan, C.J., Melencio-Herrera and Padilla, JJ., took no part.
Feliciano, J., is on leave.
Separate Opinions
PARAS , J ., dissenting :
I dissent.
In fixing the oil prices complained of, the Energy Regulatory Board (ERB) gravely abused its
discretion —
(1) in approving the prices without due process of law, and
(2) in exercising the taxing power in gross violation of the 1987 Constitution
which vests such power only in Congress. LLphil
With respect to due process, it will be noted that it is Sec. 3(e) (and not Sec. 8) of Ex. Order
No. 172 which should apply to the instant case (and therefore a hearing is essential) 1 for it
is Sec. 3(e) that refers to "the temporary adjustment of the levels of prices of petroleum
products" or instances "when public interest so requires." Sec. 8, which is relied upon by
the majority opinion, does NOT speak of price increases. Additionally it is clear that in the
instant case, "public interest" [also mentioned in Sec. 3 (e)] necessitated a prior hearing.
Anent the unconstitutional use of the taxing power, the decision of the majority says that
"the Board Order authorizing the proceeds generated by the increases" is "authorized by
Presidential Decree No. 1456, as amended by Executive Order No. 137" (See Decision, pp.
7-8). Assuming that such is authorized by law, still a law, no matter how imperative, cannot
prevail over the Constitution which grants only to Congress the power to tax. And indeed,
there can be no denying the fact that when revenue is earned by the government from the
consuming public (except when only licenses are concerned) there is an exercise of the
taxing power.
I am of course aware of the dangerous economic quagmire to which our country has been
plunged by the sadism precipitating the Middle East crisis, but certainly one error cannot
be corrected by another error. Besides there are more significant and clear-cut reasons for
our economic crisis: namely, the intentional depreciation (actually, a devaluation) of our
already demeaned currency, our unfortunate liberalization of imports, and our slavish
subservience to the dictates of the IMF. Cdpr
Footnotes
1. Rollo, 45.
2. Id., 32.
3. Id., 44-45.
4. He is the petitioner in G.R. Nos. 95203-05.
5. He is the other petitioner in G.R. Nos. 95119-21.
6. It is the intervenor in G.R. Nos. 95203-05.
7. Nos. 78888-90, 79501-03, 79590-92, June 23, 1988, 162 SCRA 521.
8. Supra, at 535.
PARAS, J ., dissenting:
1. The majority opinion itself concedes that when See. 3(e) is applicable, a hearing is
indispensable (See Decision, p. 6).

FIRST DIVISION
[G.R. No. 86695. September 3, 1992.]
MARIA ELENA MALAGA, doing business under the name B.E.

CONSTRUCTION; JOSIELEEN NAJARRO, doing business under the
name BEST BUILT CONSTRUCTION; JOSE N. OCCEÑA, doing
business under the name THE FIRM OF JOSE N. OCCEÑA; and the
ILOILO BUILDERS CORPORATION , petitioners, vs. MANUEL R.
PENACHOS, JR., ALFREDO MATANGGA, ENRICO TICAR AND
TERESITA VILLANUEVA, in their respective capacities as Chairman
and Members of the Pre-qualification Bids and Awards Committee
(PBAC)-BENIGNO PANISTANTE, in his capacity as President of
Iloilo State College of Fisheries, as well as in their respective
personal capacities; and HON. LODRIGIO L. LEBAQUIN , respondents.
Salas, Villareal & Velasco for petitioners.

Virgilio A. Sindico for respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; GOVERNMENT INSTRUMENTALITY, DEFINED. — The 1987

Administrative Code defines a government instrumentality as follows: Instrumentality
refers to any agency of the National Government, not integrated within the department
framework, vested with special functions or jurisdiction by law, endowed with some if not
all corporate powers, administering special funds, and enjoying operational autonomy,
usually through a charter. This term includes regulatory agencies, chartered institutions,
and government-owned or controlled corporations. (Sec. 2 (5) Introductory Provisions).
2. ID.; CHARTERED INSTITUTION; DEFINED; APPLICATION IN CASE AT BAR. — The
1987 Administrative Code describes a chartered institution thus: Chartered institution —
refers to any agency organized or operating under a special charter, and vested by law with
functions relating to specific constitutional policies or objectives. This term includes the
state universities and colleges, and the monetary authority of the state. (Sec. 2 (12)
Introductory Provisions). It is clear from the above definitions that ISCOF is a chartered
institution and is therefore covered by P.D. 1818. There are also indications in its charter
that ISCOF is a government instrumentality. First, it was created in pursuance of the
integrated fisheries development policy of the State, a priority program of the government
to effect the socio-economic life of the nation. Second, the Treasurer of the Republic of the
Philippines shall also be the ex-officio Treasurer of the state college with its accounts and
expenses to be audited by the Commission on Audit or its duly authorized representative.
Third, heads of bureaus and offices of the National Government are authorized to loan or
transfer to it, upon request of the president of the state college, such apparatus,
equipment, or supplies and even the services of such employees as can be spared without
serious detriment to public service. Lastly, an additional amount of P1.5M had been
appropriated out of the funds of the National Treasury and it was also decreed in its
charter that the funds and maintenance of the state college would henceforth be included
in the General Appropriations Law. (Presidential Decree No. 1523)
3. ID.; PROHIBITION OF ANY COURT FROM ISSUING INJUNCTION IN CASES
INVOLVING INFRASTRUCTURE PROJECTS OF GOVERNMENT (P.D. 1818); POWER OF THE
COURTS TO RESTRAIN APPLICATION. — In the case of Datiles and Co. vs. Sucaldito, (186
SCRA 704) this Court interpreted a similar prohibition contained in P.D. 605, the law after
which P.D. 1818 was patterned. It was there declared that the prohibition pertained to the
issuance of injunctions or restraining orders by courts against administrative acts in
controversies involving facts or the exercise of discretion in technical cases. The Court
observed that to allow the courts to judge these matters would disturb the smooth
functioning of the administrative machinery. Justice Teodoro Padilla made it clear,
however, that on issues definitely outside of this dimension and involving questions of law,
courts could not be prevented by P.D. No. 605 from exercising their power to restrain or
prohibit administrative acts. We see no reason why the above ruling should not apply to
P.D. 1818. There are at least two irregularities committed by PBAC that justified injunction
of the bidding and the award of the project.
4. ID.; POLICIES AND GUIDELINES PRESCRIBED FOR GOVERNMENT
INFRASTRUCTURE (PD 1594); RULES IMPLEMENTING THEREOF, NOT SUFFICIENTLY
COMPLIED WITH IN CASE AT BAR. — Under the Rules Implementing P.D. 1594, prescribing
policies and guidelines for government infrastructure contracts, PBAC shall provide
prospective bidders with the Notice to Pre-qualification and other relevant information
regarding the proposed work. Prospective contractors shall be required to file their ARC-
Contractors Confidential Application for Registration & Classifications & the PRE-C2
Confidential Pre-qualification Statement for the Project (prior to the amendment of the
rules, this was referred to as Pre-C1) not later than the deadline set in the published
Invitation to Bid, after which date no PRE-C2 shall be submitted and received. Invitations to
Bid shall be advertised for at least three times within a reasonable period but in no case
less than two weeks in at least two newspapers of general circulations. (IB 13 1.2-19,
Implementing Rules and Regulations of P.D. 1594 as amended) PBAC advertised the pre-
qualification deadline as December 2, 1988, without stating the hour thereof, and
announced that the opening of bids would be at 3 o'clock in the afternoon of December 12,
1988. This scheduled was changed and a notice of such change was merely posted at the
ISCOF bulletin board. The notice advanced the cut-off time for the submission of pre-
qualification documents to 10 o'clock in the morning of December 2, 1988, and the
opening of bids to 1 o'clock in the afternoon of December 12, 1988. The new schedule
caused the pre-disqualification of the petitioners as recorded in the minutes of the PBAC
meeting held on December 6, 1988. While it may be true that there were fourteen
contractors who were pre-qualified despite the change in schedule, this fact did not cure
the defect of the irregular notice. Notably, the petitioners were disqualified because they
failed to meet the new deadline and not because of their expired licenses. (B.E. & Best
Built's licenses were valid until June 30, 1989. [Ex. P & O respectively: both were marked on
December 28, 1988]) We have held that where the law requires a previous advertisement
before government contracts can be awarded, non-compliance with the requirement will,
as a general rule, render the same void and of no effect. (Caltex Phil. v. Delgado Bros., 96
Phil. 368) The fact that an invitation for bids has been communicated to a number of
possible bidders is not necessarily sufficient to establish compliance with the
requirements of the law if it is shown that other possible bidders have not been similarly
notified.
5. ID.; ID.; ID.; PURPOSE THEREOF; CASE AT BAR. — The purpose of the rules
implementing P.D. 1594 is to secure competitive bidding and to prevent favoritism,
collusion and fraud in the award of these contracts to the detriment of the public. This
purpose was defeated by the irregularities committed by PBAC. It has been held that the
three principles in public bidding are the offer to the public, an opportunity for competition
and a basis for exact comparison of bids. A regulation of the matter which excludes any of
these factors destroys the distinctive character of the system and thwarts the purpose of
its adoption. (Hannan v. Board of Education, 25 Okla. 372) In the case at bar, it was the
lack of proper notice regarding the pre-qualification requirement and the bidding that
caused the elimination of petitioners B.E. and Best Built. It was not because of their
expired licenses, as private respondents now claim. Moreover, the plans and specifications
which are the contractors' guide to an intelligent bid, were not issued on time, thus
defeating the guaranty that contractors be placed on equal footing when they submit their
bids. The purpose of competitive bidding is negated if some contractors are informed
ahead of their rivals of the plans and specifications that are to be the subject of their bids.
6. ID.; ID.; ID.; EFFECT OF NON-COMPLIANCE THEREOF. — It has been held in a long
line of cases that a contract granted without the competitive bidding required by law is
void, and the party to whom it is awarded cannot benefit from it. It has not been shown
that the irregularities committed by PBAC were induced by or participated in by any of the
contractors. Hence, liability shall attach only to the private respondents for the prejudice
sustained by the petitioners as a result of the anomalies described above.
7. CIVIL LAW; NOMINAL DAMAGES; AWARD THEREOF, WHEN AVAILABLE. — As there
is no evidence of the actual loss suffered by the petitioners, compensatory damage may
not be awarded to them. Moral damages do not appear to be due either. Even so, the Court
cannot close its eyes to the evident bad faith that characterized the conduct of the private
respondents, including the irregularities in the announcement of the bidding and their
efforts to persuade the ISCOF president to award the project after two days from receipt
of the restraining order and before they moved to lift such order. For such questionable
acts, they are liable in nominal damages at least in accordance with Article 2221 of the
Civil Code, which states: Art. 2221. Nominal damages are adjudicated in order that a right
of the plaintiff, which has been violated or invaded by the defendant may be vindicated or,
recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by
him. These damages are to be assessed against the private respondents in the amount of
P10,000.00 each, to be paid separately for each of petitioners B.E. Construction and Best
Built Construction.
DECISION
CRUZ , J : p
This controversy involves the extent and applicability of P.D. 1818, which prohibits any
court from issuing injunctions in cases involving infrastructure projects of the government.
prLL
The facts are not disputed.

The Iloilo State College of Fisheries (henceforth ISCOF) through its Pre-qualification, Bids
and Awards Committee (henceforth PBAC) caused the publication in the November 25, 26,
28, 1988 issues of the Western Visayas Daily an Invitation to Bid for the construction of
the Micro Laboratory Building at ISCOF. The notice announced that the last day for the
submission of pre-qualification requirements (PRE C-1) ** was December 2, 1988, and that
the bids would be received and opened on December 12, 1988, 3 o'clock in the afternoon.
1
Petitioners Maria Elena Malaga and Josieleen Najarro, respectively doing business under
the name of the B.E. Construction and Best Built Construction, submitted their pre-
qualification documents at two o'clock in the afternoon of December 2, 1988. Petitioner
Jose Occeña submitted his own PRE-C1 on December 5, 1988. All three of them were not
allowed to participate in the bidding because their documents were considered late,
having been submitted after the cut-off time of ten o'clock in the morning of December 2,
1988.
On December 12, 1988, the petitioners filed a complaint with the Regional Trial Court of
Iloilo against the chairman and members of PBAC in their official and personal capacities.
The plaintiffs claimed that although they had submitted their PRE-C1 on time, the PBAC
refused without just cause to accept them. As a result, they were not included in the list of
pre-qualified bidders, could not secure the needed plans and other documents, and were
unable to participate in the scheduled bidding.
In their prayer, they sought the resetting of the December 12, 1988 bidding and the
acceptance of their PRE-C1 documents. They also asked that if the bidding had already
been conducted, the defendants be directed not to award the project pending resolution of
their complaint.
On the same date, Judge Lodrigio L. Lebaquin issued a restraining order prohibiting PBAC
from conducting the bidding and awarding the project. 2
On December 16, 1988, the defendants filed a motion to lift the restraining order on the
ground that the Court was prohibited from issuing restraining orders, preliminary
injunctions and preliminary mandatory injunctions by P.D. 1818. cdll
The decree reads pertinently as follows:

Section 1. No Court in the Philippines shall have jurisdiction to issue any
restraining order, preliminary injunction, or preliminary infrastructure project, or a
mining, fishery, forest or other natural resource development project of the
government, or any public utility operated by the government, including among
others public utilities for the transport of the goods and commodities, stevedoring
and arrastre contracts, to prohibit any person or persons, entity or government
official from proceeding with, or continuing the execution or implementation of
any such project, or the operation of such public utility, or pursuing any lawful
activity necessary for such execution, implementation or operation.
The movants also contended that the question of the propriety of a preliminary injunction
had become moot and academic because the restraining order was received late, at 2
o'clock in the afternoon of December 12, 1988, after the bidding had been conducted and
closed at eleven thirty in the morning of that date.
In their opposition of the motion, the plaintiffs argued against the applicability of P.D.
1818, pointing out that while ISCOF was a state college, it had its own charter and
separate existence and was not part of the national government or of any local political
subdivision. Even if P.D. 1818 were applicable, the prohibition presumed a valid and legal
government project, not one tainted with anomalies like the project at bar.
They also cited Filipinas Marble Corp. vs. IAC, 3 where the Court allowed the issuance of a
writ of preliminary injunction despite a similar prohibition found in P.D. 385. The Court
therein stated that:
The government, however, is bound by basic principles of fairness and decency
under the due process clauses of the Bill of Rights. P.D. 385 was never meant to
protect officials of government-lending institutions who take over the
management of a borrower corporation, lead that corporation to bankruptcy
through mismanagement or misappropriation of its funds, and who, after ruining
it, use the mandatory provisions of the decree to avoid the consequences of their
misleads (p. 188, emphasis supplied).
On January 2, 1989, the trial court lifted the restraining order and denied the petition for
preliminary injunction. It declared that the building sought to be construed at the ISCOF
was an infrastructure project of the government falling within the coverage of P.D. 1818.
Even if it were not, the petition for the issuance of a writ of preliminary injunction would still
fail because the sheriff's return showed that PBAC was served a copy of the restraining
order after the bidding sought to be restrained had already been held. Furthermore, the
members of the PBAC could not be restrained from awarding the project because the
authority to do so was lodged in the President of the ISCOF, who was not a party to the
case. 4
In the petition now before us, it is reiterated that P.D. 1818 does not cover the ISCOF
because of its separate and distinct corporate personality. It is also stressed again that
the prohibition under P.D. 1818 could not apply to the present controversy because the
project was vitiated with irregularities, to wit: prcd
1. The invitation to bid as published fixed the deadline of submission of pre-

qualification document on December 2, 1988 without indicating any time, yet
after 10:00 o'clock of the given late, the PBAC already refused to accept
petitioners' documents.
2. The time and date of bidding was published as December 12, 1988 at 3:00
p.m. yet it was held at 10:00 o'clock in the morning.
3. Private respondents, for the purpose of inviting bidders to participate,
issued a mimeographed "Invitation to Bid" form, which by law (P.D. 1594 and
Implementing Rules, Exh. B-1) is to contain the particulars of the project subject
of bidding for the purpose of.
(i) enabling bidders to make an intelligent and accurate bids;
(ii) for PBAC to have a uniform basis for evaluating the bids;
(iii) to prevent collusion between a bidder and the PBAC, by
opening to all the particulars of a project.
Additionally, the Invitation to Bid prepared by the respondents and the Itemized Bill of
Quantities therein were left blank. 5 And although the project in question was a
"Construction," the private respondents used an Invitation to Bid form for "Materials." 6
The petitioners also point out that the validity of the writ of preliminary injunction had not
yet become moot and academic because even if the bids had been opened before the
restraining order was issued, the project itself had not yet been awarded. The ISCOF
president was not an indispensable party because the signing of the award was merely a
ministerial function which he could perform only upon the recommendation of the Award
Committee. At any rate, the complaint had already been duly amended to include him as a
party defendant.
In their Comment, the private respondents maintain that since the members of the board
of trustees of the ISCOF are all government officials under Section 7 of P.D. 1523 and
since the operations and maintenance of the ISCOF are provided for in the General
Appropriations Law, it is should be considered a government institution whose
infrastructure project is covered by P.D. 1818.
Regarding the schedule for pre-qualification, the private respondents insist that PBAC
posted on the ISCOF bulletin board an announcement that the deadline for the submission
of pre-qualifications documents was at 10 o'clock of December 2, 1988, and the opening
of bids would be held at 1 o'clock in the afternoon of December 12, 1988. As of ten o'clock
in the morning of December 2, 1988, B.E. construction and Best Built construction had
filed only their letters of intent. At two o'clock in the afternoon, B.E., and Best Built filed
through their common representative, Nenette Garuello, their pre-qualification documents
which were admitted but stamped "submitted late." The petitioners were informed of their
disqualification on the same date, and the disqualification became final on December 6,
1988. Having failed to take immediate action to compel PBAC to pre-qualify them despite
their notice of disqualification, they cannot now come to this Court to question the binding
proper in which they had not participated.
In the petitioners' Reply, they raise as an additional irregularity the violation of the rule that
where the estimate project cost is from P1M to P5M, the issuance of plans, specifications
and proposal book forms should made thirty days before the date of bidding. 7 They point
out that these forms were issued only on December 2, 1988, and not at the latest on
November 12, 1988, the beginning of the 30-day period prior to the scheduled bidding.
In their Rejoinder, the private respondents aver that the documents of B.E. and Best Built
were received although filed late and were reviewed by the Award Committee, which
discovered that the contractors had expired licenses. B.E.'s temporary certificate of
Renewal of Contractor's License was valid only until September 30, 1988, while Best Built's
license was valid only up to June 30, 1988. llcd
The Court has considered the arguments of the parties in light of their testimonial and
documentary evidence and the applicable laws and jurisprudence. It finds for the
petitioners.
The 1987 Administrative Code defines a government instrumentality as follows:
Instrumentality refers to any agency of the National Government, not integrated
within the department framework, vested with special functions or jurisdiction by
law, endowed with some if not all corporate powers, administering special funds,
and enjoying operational autonomy, usually through a charter. This term includes
regulatory agencies, chartered institutions, and government-owned or controlled
corporations. (Sec. 2 (5) Introductory Provisions).
The same Code describes a chartered institution thus:

Chartered institution — refers to any agency organized or operating under a
special charter, and vested by law with functions relating to specific
constitutional policies or objectives. This term includes the state universities and
colleges, and the monetary authority of the state. (Sec. 2 (12) Introductory
Provisions).
It is clear from the above definitions that ISCOF is a chartered institution and is therefore
covered by P.D. 1818.
There are also indications in its charter that ISCOF is a government instrumentality. First, it
was created in pursuance of the integrated fisheries development policy of the State, a
priority program of the government to effect the socio-economic life of the nation. Second,
the Treasurer of the Republic of the Philippines also be the ex-officio Treasurer of the state
college with its accounts and expenses to be audited by the Commission on Audit or its
duly authorized representative. Third, heads of bureaus and offices of the National
Government are authorized to loan or transfer to it, upon request of the president of the
state college, such apparatus, equipment, or supplies and even the services of such
employees as can be spared without serious detriment to public service. Lastly, an
additional amount of P1.5M had been appropriated out of the funds of the National
Treasury and it was also decreed in its charter that the funds and maintenance of the state
college would henceforth be included in the General Appropriations Law. 8
Nevertheless, it does not automatically follow that ISCOF is covered by the prohibition in
the said decree.
In the case of Datiles and Co. vs. Sucaldito, 9 this Court interpreted a similar prohibition
contained in P.D. 605, the law after which P.D. 1818 was patterned. It was there declared
that the prohibition pertained to the issuance of injunctions or restraining orders by courts
against administrative acts in controversies involving facts or the exercise of discretion in
technical cases. The Court observed that to allow the courts to judge these matters would
disturb the smooth functioning of the administrative machinery. Justice Teodoro Padilla
made it clear, however, that on issues definitely outside of this dimension and involving
questions of law, courts could not be prevented by P.D. No. 605 from exercising their
power to restrain or prohibit administrative acts.
We see no reason why the above ruling should not apply to P.D. 1818.
There are at least two irregularities committed by PBAC that justified injunction of the
bidding and the award of the project. LLjur
First, PBAC set deadlines for the filing of the PRE-C1 and the opening of bids and then
changed these deadlines without prior notice to prospective participants.
Under the Rules Implementing P.D. 1594, prescribing policies and guidelines for
government infrastructure contracts, PBAC shall provide prospective bidders with the
Notice of Pre-qualification and other relevant information regarding the proposed work.
Prospective contractors shall be required to file their ARC-Contractors Confidential
Application for Registration & Classifications & the PRE-C2 Confidential Pre-qualification
Statement for the Project (prior to the amendment of the rules, this was referred to as
PRE-C1) not later than the deadline set in the published Invitation to Bid, after which date
no PRE-C2 shall be submitted and received. Invitations to Bid shall be advertised for at
least three times within a reasonable period but in no case less than two weeks in at least
two newspapers of general circulations. 1 0
PBAC advertised the pre-qualification deadline as December 2, 1988, without stating the
hour thereof, and announced that the opening of bids would be at 3 o'clock in the
afternoon of December 12, 1988. This schedule was changed and a notice of such change
was merely posted at the ISCOF bulletin board. The notice advanced the cut-off time for
the submission of pre-qualification documents to 10 o'clock in the morning of December
2, 1988, and the opening of bids to 1 o'clock in the afternoon of December 12, 1988.
The new schedule caused the pre-disqualification of the petitioners as recorded in the
minutes of the PBAC meeting held on December 6, 1988. While it may be true that there
were fourteen contractors who were pre-qualified despite the change in schedule, this fact
did not cure the defect of the irregular notice. Notably, the petitioners were disqualified
because they failed to meet the new deadline and not because of their expired licenses. ***
We have held that where the law requires a previous advertisement before government
contracts can be awarded, non-compliance with the requirement will, as a general rule,
render the same void and of no effect. 1 1 The facts that an invitation for bids has been
communicated to a number of possible bidders is not necessarily sufficient to establish
compliance with the requirements of the law if it is shown that other public bidders have
not been similarly notified. 1 2
Second, PBAC was required to issue to pre-qualified applicants the plans, specifications
and proposal book forms for the project to be bid thirty days before the date of bidding if
the estimate project cost was between P1M and P5M. PBAC has not denied that these
forms were issued only on December 2, 1988, or only ten days before the bidding
scheduled for December 12, 1988. At the very latest, PBAC should have issued them on
November 12, 1988, or 30 days before the scheduled bidding.
It is apparent that the present controversy did not arise from the discretionary acts of the
administrative body nor does it involve merely technical matters. What is involved here is
non-compliance with the procedural rules on bidding which required strict observance. The
purpose of the rules implementing P.D. 1594 is to secure competitive bidding and to
prevent favoritism, collusion and fraud in the award of these contracts to the detriment of
the public. This purpose was defeated by the irregularities committed by PBAC. LLpr
It has been held that the three principles in public bidding are the offer to the public, an
opportunity for competition and a basis for exact comparison of bids. A regulation of the
matter which excludes any of these factors destroys the distinctive character of the
system and thwarts the purpose of its adoption. 1 3
In the case at bar, it was the lack of proper notice regarding the pre-qualification
requirement and the bidding that caused the elimination of petitioners B.E. and Best Built.
It was not because of their expired licenses, as private respondents now claim. Moreover,
the plans and specifications which are the contractors' guide to an intelligent bid, were not
issued on time, thus defeating the guaranty that contractors be placed on equal footing
when they submit their bids. The purpose of competitive bidding is negated if some
contractors are informed ahead of their rivals of the plans and specifications that are to be
the subject of their bids.
P.D. 1818 was not intended to shield from judicial scrutiny irregularities committed by
administrative agencies such as the anomalies above described. Hence, the challenged
restraining order was not improperly issued by the respondent judge and the writ of
preliminary injunction should not have been denied. We note from Annex Q of the private
respondent's memorandum, however, that the subject project has already been "100%
completed as to the Engineering Standard." This fait accompli has made the petition for a
writ of preliminary injunction moot and academic.
We come now to the liabilities of the private respondents.
It has been held in a long line of cases that a contract granted without the competitive
bidding required by law is void, and the party to whom it is awarded cannot benefit from it.
14 It has not been shown that the irregularities committed by PBAC were induced by or
participated in by any of the contractors. Hence, liability shall attach only to the private
respondents for the prejudice sustained by the petitioners as a result of the anomalies
described above.
As there is no evidence of the actual loss suffered by the petitioners, compensatory
damage may not be awarded to them. Moral damages do not appear to be due either.
Even so, the Court cannot close its eyes to the evident bad faith that characterized the
conduct of the private respondents, including the irregularities in the announcement of the
bidding and their efforts to persuade the ISCOF president to award the project after two
days from receipt of the restraining order and before they moved to lift such order. For
such questionable acts, they are liable in nominal damages at least in accordance with
Article 2221 of the Civil Code, which states:
"Art. 2221. Nominal damages are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant may be vindicated
or, recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him.
These damages are to assessed against the private respondents in the amount of
P10,000.00 each, to be paid separately for each of petitioners B.E. Construction and Best
Built Construction. The other petitioner, Occeña Builders, is not entitled to relief because it
admittedly submitted its pre-qualification documents on December 5, 1988, or three days
after the deadline. Cdpr
WHEREFORE, judgment is hereby rendered: a) upholding the restraining order dated

December 12, 1988, as not covered by the prohibition in P.D. 1818; b) ordering the
chairman and the members of the PBAC board of trustees, namely Manuel R. Penachos,
Jr., Alfredo Matangga, Enrico Ticar, and Teresita Villanueva, to each pay separately to
petitioners Maria Elena Malaga and Josieleen Najarro nominal damages P10,000.00 each;
and c) removing the said chairman and members from the PBAC board of trustees, or
whoever among them is still incumbent therein, for their malfeasance in office. Costs
against PBAC.
Let a copy of this decision be sent to the Office of the Ombudsman.

SO ORDERED.
Griño-Aquino, Medialdea and Bellosillo, JJ ., concur.
Footnotes
** Implementing Rules and Regulations on PD 1594 (Prescribing Policies, Guidelines, Rules

and Regulations for Government Infrastructure Contracts) as amended. Official Gazette,
Vol. 84, No. 23, p. 3340-3365, June 6, 1988.
1. Annex A, Rollo, p. 134.
2. Annex B. Rollo p. 31.
3. 142 SCRA 180.
4. Annex F, Rollo, pp. 44-48.

5. Exhibit E-2, Rollo of Exhibits.
6. Exhibit E-3-a, Rollo of Exhibits.
7. Rollo, p. 87.
8. Presidential Decree No. 1523.
9. 186 SCRA 704.
10. IB 13 1.2-19, Implementing Rules and Regulations of P.D. 1594 as amended.

*** B.E. & Best Built's licenses were valid until June 30, 1989. (Exh. P & O respectively: both
were marked on December 28, 1988).
11. Caltex Phil. v. Delgado Bros., 96 Phil. 368.
12. 51 CT. C1. 211, 214, 249, U.S. 319, 39 S. Ct. 300 25 Comp. Gen. 859.
13. Hannan v. Board of Education, 25 Okla. 372.
14. Johnson Country Savings Bank, et al. v. City of Creston, 212 Iowa 929, 231 N.W. 705;
Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96; Richardson v. Grant Country (c.c.)
27 F. 495; People v. Gleason, 121 N.Y. 631; 25 N.E. 4; Wagner v. Milwaukee, 196 Wis.
328, 220 N.W. 207.

EN BANC
[G.R. No. 97149. March 31, 1992.]
FIDENCIO Y. BEJA, SR. , petitioner, vs. COURT OF APPEALS,

HONORABLE REINERIO O. REYES, in his capacity as Secretary of the
Department of Transportation and Communications; COMMODORE
ROGELIO A. DAYAN, in his capacity as General Manager of the
Philippine Ports Authority; DEPARTMENT OF TRANSPORTATION
AND COMMUNICATIONS, ADMINISTRATIVE ACTION BOARD; and
JUSTICE ONOFRE A. VILLALUZ, in his capacity as Chairman of the
Administrative Action Board, DOTC , respondents.
Rogelio Zosa Bagabuyo for petitioner.
SYLLABUS
1. ADMINISTRATIVE LAW; PUBLIC OFFICE; PREVENTIVE SUSPENSION; NOT A

PENALTY IN ITSELF BUT A MERE MEASURE OF PRECAUTION. — The imposition of
preventive suspension on a government employee charged with an administrative offense
is subject to the provision of Section 41 of the Civil Service Law, P.D. No. 807. Imposed
during the pendency of an administrative investigation, preventive suspension is not a
penalty in itself. It is merely a measure of precaution so that the employee who is charged
may be separated, for obvious reasons, from the scene of his alleged misfeasance while
the same is being investigated.
2. ID.; ID.; ID.; DISTINGUISHED FROM REMOVAL FROM OFFICE. — Preventive
suspension is distinct from the administrative penalty of removal from office such as the
one mentioned in Sec. 8(d) of P.D. No. 857. While the former may be imposed on a
respondent during the investigation of the charges against him, the latter is the penalty
which may only be meted upon him at the termination of the investigation or the final
disposition of the case.
3. ID.; PHILIPPINE PORTS AUTHORITY (PPA); GENERAL MANAGER; WITH
JURISDICTION TO INVESTIGATE AND DECIDE ADMINISTRATIVE COMPLAINTS AGAINST
ITS OFFICERS AND EMPLOYEES. — The PPA general manager is the disciplining authority
who may, by himself and without the approval of the PPA Board of Directors, subject a
respondent in an administrative case to preventive suspension. His disciplinary powers are
sanctioned, not only by Sec. 8 of P.D. No. 857 aforequoted, but also by Sec. 37 of P.D. No.
807 granting heads of agencies the "jurisdiction to investigate and decide matters
involving disciplinary actions against officers and employees" in the PPA.
4. ID.; ADMINISTRATIVE CODE OF 1987; PREVENTIVE SUSPENSION; PERIOD LIMITED
TO NINETY (90) DAYS. — The period of preventive suspension is limited. It may be lifted
even if the disciplining authority has not finally decided the administrative case provided
the ninety-day period from the effectivity of the preventive suspension has been
exhausted. The employee concerned may then be reinstated.
5. ID.; ID.; ID.; ID.; PERIOD INTERRUPTED BY COURT PROCESSES. — However, the said
ninety-day period may be interrupted. Section 42 of P.D. No. 807 also mandates that any
fault, negligence or petition of a suspended employee may not be considered in the
computation of the said period. Thus, when a suspended employee obtains from a court of
justice a restraining order or a preliminary injunction inhibiting proceedings in an
administrative case, the lifespan of such court order should be excluded in the reckoning
of the permissible period of the preventive suspension.
6. ID.; ID.; ATTACHMENT; DEFINED. — "Attachment" is defined in Sec. 38, Book IV,
Chapter 7 of the Administrative Code of 1987, as to the lateral relationship between the
department or its equivalent and the attached agency or coordination.
7. ID.; ID.; ID.; AN ATTACHED AGENCY HAS A LARGER MEASURE OF INDEPENDENCE
FROM THE DEPARTMENT TO WHICH IT IS ATTACHED; WITH FREEDOM FROM
INTERFERENCE WITH RESPECT TO ADMINISTRATIVE MATTER. — An attached agency has
a larger measure of independence from the Department to which it is attached than one
which is under departmental supervision and control or administrative supervision. This is
borne out by the "lateral relationship" between the Department and the attached agency.
The attachment is merely for "policy and program coordination." With respect to
administrative matters, the independence of an attached agency from Departmental
control and supervision is further reinforced by the fact that even an agency under a
Department's administrative supervision is free from Departmental interference with
respect to appointments and other personnel actions "in accordance with the
decentralization of personnel functions" under the Administrative Code of 1987. Moreover,
the Administrative Code explicitly provides that Chapter 8 of Book IV on supervision and
control shall not apply to chartered institutions attached to a Department. Hence, the
inescapable conclusion is that with respect to the management of personnel, an attached
agency is, to a certain extent, free from Departmental interference and control. This is
more explicitly shown by P.D. No. 857.
8. ID.; PHILIPPINE PORTS AUTHORITY; GENERAL MANAGER; POWER TO REMOVE
ERRING EMPLOYEES BELOW THE RANK OF ASSISTANT MANAGER, IMPLIEDLY GRANTED.
— Although the foregoing section does not expressly provide for a mechanism for an
administrative investigation of personnel, by vesting the power to remove erring
employees on the General Manager, with the approval of the PPA Board of Directors, the
law impliedly grants said officials the power to investigate its personnel below the rank of
Assistant Manager who may be charged with an administrative offense.
9. ID.; ID.; ID.; ID.; APPROVAL OF THE BOARD OF DIRECTORS, ESSENTIAL. — During
such investigation, the PPA General Manager, as earlier stated, may subject the employee
concerned to preventive suspension. The investigation should be conducted in accordance
with the procedure set out in Sec. 38 of P.D. No. 807. Only after gathering sufficient facts
may the PPA General Manager impose the proper penalty in accordance with law. It is the
latter action which requires the approval of the PPA Board of Directors.
10. ID.; ID.; ID.; ID.; ID.; APPEAL MAY BE MADE TO DEPARTMENT HEAD OR
SECRETARY OR DIRECTLY TO THE CIVIL SERVICE COMMISSION. — From an adverse
decision of the PPA General Manager and the Board of Directors, the employee concerned
may elevate the matter to the Department Head or Secretary. Otherwise, he may appeal
directly to the Civil Service Commission. The permissive recourse to the Department
Secretary is sanctioned by the Civil Service Law (P.D. No. 807).
11. ID.; ID.; ID.; ID.; TRANSMITTAL OF COMPLAINT TO THE ADMINISTRATIVE ACTION
BOARD (AAB), PREMATURE. — It is clear that the transmittal of the complaint by the PPA
General Manager to the AAB (Administrative Action Board) which was created during the
tenure of Secretary Reyes under Office Order No. 88-318 dated July 1, 1988, was designed
to act, decide and recommend to him "all cases of administrative malfeasance,
irregularities, grafts and acts of corruption in the Department," was premature.
12. ID.; ID.; ADMINISTRATIVE ACTION BOARD; NOT EXEMPT FROM THE
OBSERVANCE OF DUE PROCESS; CASE AT BAR. — Its special nature as a quasi-judicial
administrative body notwithstanding, the AAB is not exempt from the observance of due
process in its proceedings. We are not satisfied that it did so in this case the respondents
protestation that petitioner waived his right to be heard notwithstanding. It should be
observed that petitioner was precisely questioning the AAB's jurisdiction when it sought
judicial recourse.
DECISION
ROMERO , J : p
The instant-petition for certiorari questions the jurisdiction of the Secretary of the
Department of Transportation and Communications (DOTC) and/or its Administrative
Action Board (AAB) over administrative cases involving personnel below the rank of
Assistant General Manager of the Philippine Ports Authority (PPA), an agency attached to
the said Department.
Petitioner Fidencio Y. Beja, Sr. 1 was first employed by the PPA as arrastre supervisor in
1975. He became Assistant Port Operations Officer in 1976 and Port Operations Officer in
1977. In February 1988, as a result of the reorganization of the PPA, he was appointed
Terminal Supervisor. cdphil
On October 21, 1988, the PPA General Manager, Rogelio A. Dayan, filed Administrative
Case No. 11-04-88 against petitioner Beja and Hernando G. Villaluz for grave dishonesty,
grave misconduct, willful violation of reasonable office rules and regulations and conduct
prejudicial to the best interest of the service. Beja and Villaluz allegedly erroneously
assessed storage fees resulting in the loss of P38,150.77 on the part of the PPA.
Consequently, they were preventively suspended for the charges. After a preliminary
investigation conducted by the district attorney for Region X, Administrative Case No. 11-
04-88 was "considered closed for lack of merit."
On December 13, 1988, another charge sheet, docketed as Administrative Case No. 12-01-
88, was filed against Beja by the PPA general manager also for dishonesty, grave
misconduct, violation of reasonable office rules and regulations, conduct prejudicial to the
best interest of the service and for being notoriously undesirable. The charge consisted of
six (6) different specifications of administrative offenses including fraud against the PPA
in the total amount of P218,000.00. Beja was also placed under preventive suspension
pursuant to Sec. 41 of P.D. No. 807.
The case was redocketed as Administrative Case No. PPA-AAB-1-049-89 and thereafter,
the PPA general manager indorsed it to the AAB for "appropriate action." At the scheduled
hearing, Beja asked for continuance on the ground that he needed time to study the
charges against him. The AAB proceeded to hear the case and gave Beja an opportunity to
present evidence. However, on February 20, 1989, Beja filed a petition for certiorari with
preliminary injunction before the Regional Trial Court of Misamis Oriental. 2 Two days later,
he filed with the AAB a manifestation and motion to suspend the hearing of Administrative
Case No. PPA-AAB-1-049-89 on account of the pendency of the certiorari proceeding
before the court. AAB denied the motion and continued with the hearing of the
administrative case.
Thereafter, Beja moved for the dismissal of the certiorari case below and proceeded to file
before this Court a petition for certiorari with preliminary injunction and/or temporary
restraining order. The case was docketed as G.R. No. 87352 captioned "Fidencio Y. Beja v.
Hon. Reinerio O. Reyes, etc., al." In the en banc resolution of March 30, 1989, this Court
referred the case to the Court of Appeals for "appropriate action." 3 G.R. No. 87352 was
redocketed in the Court of Appeals as CA-G.R. SP No. 17270.
Meanwhile, a decision was rendered by the AAB in Administrative Case No. PPA-AAB-049-
89. Its dispositive portion reads:
"WHEREFORE, judgment is hereby rendered, adjudging the following, namely:
a) That respondents Geronimo Beja, Jr. and Hernando Villaluz are
exonerated from the charge against them;
b) That respondent Fidencio Y. Beja be dismissed from the service;

c) That his leave credits and retirement benefits are declared forfeited;
d) That he be disqualified from re-employment in the government

service;
e) That his eligibility is recommended to be cancelled.

Pasig, Metro Manila, February 28, 1989."
On December 10, 1990, after appropriate proceedings, the Court of Appeals also rendered
a decision 4 in CA-G.R. SP No. 17270 dismissing the petition for certiorari for lack of merit.
Hence, Beja elevated the case back to this Court through an "appeal by certiorari with
preliminary injunction and/or temporary restraining order."
We find the pleadings filed in this case to be sufficient bases for arriving at a decision and
hence, the filing of memoranda has been dispensed with.
In his petition, Beja assails the Court of Appeals for having "decided questions of
substance in a way probably not in accord with law or with the applicable decisions" of this
Court. 5 Specifically, Beja contends that the Court, of Appeals failed to declare that: (a) he
was denied due process; (b) the PPA general manager has no power to issue a preventive
suspension order without the necessary approval of the PPA board of directors; (c) the
PPA general manager has no power to refer the administrative case filed against him to
the DOTC-AAB, and (d) the DOTC Secretary, the Chairman of the DOTC-AAB and DOTC-AAB
itself as an adjudicatory body, have no jurisdiction to try the administrative case against
him. Simply put, Beja challenges the legality of the preventive suspension and the
jurisdiction of the DOTC Secretary and/or the AAB to initiate and hear administrative cases
against PPA personnel below the rank of Assistant General Manager. cdphil
Petitioner anchors his contention that the PPA general manager cannot subject him to a
preventive suspension on the following provision of Sec. 8, Art. V of Presidential Decree
No. 857 reorganizing the PPA:
"(d) The General Manager shall, subject to the approval of the Board, appoint
and remove personnel below the rank of Assistant General Manager." (Emphasis
supplied.)
Petitioner contends that under this provision, the PPA Board of Directors and not the PPA
General Manager is the "proper disciplining authority." 6
As correctly observed by the Solicitor General, the petitioner erroneously equates
"preventive suspension" as a remedial measure with "suspension" as a penalty for
administrative dereliction. The imposition of preventive suspension on a government
employee charged with an administrative offense is subject to the following provision of
the Civil Service Law, P.D. No. 807:
"Sec. 41. Preventive Suspension. — The proper disciplining authority may
preventively suspend any subordinate officer or employee under his authority
pending an investigation, if the charge against such officer or employee involves
dishonesty, oppression or grave misconduct, or neglect in the performance of
duty, or if there are reasons to believe that the respondent is guilty of charges
which would warrant his removal from the service."
Imposed during the tendency of an administrative investigation, preventive suspension is

not a penalty in itself. It is merely a measure of precaution so that the employee who is
charged may be separated, for obvious reasons, from the scene of his alleged
misfeasance while the same is being investigated. 7 Thus, preventive suspension is
distinct from the administrative penalty of removal from office such as the one mentioned
in Sec. 8(d) of P.D. No. 857. While the former may be imposed on a respondent during the
investigation of the charges against him, the latter is the penalty which may only be meted
upon him at the termination of the investigation or the final disposition of the case. cdphil
The PPA general manager is the disciplining authority who may, by himself and without the
approval of the PPA Board of Directors, subject a respondent in an administrative case to
preventive suspension. His disciplinary powers are sanctioned, not only by Sec. 8 of P.D.
No. 857 aforequoted, but also by Sec. 37 of P.D. No. 807 granting heads of agencies the
"jurisdiction to investigate and decide matters involving disciplinary actions against
officers and employees" in the PPA. Cdpr
Parenthetically, the period of preventive suspension is limited. It may be lifted even if the
disciplining authority has not finally decided the administrative case provided the ninety-
day period from the effectivity of the preventive suspension has been exhausted. The
employee concerned may then be reinstated. 8 However, the said ninety-day period may be
interrupted. Section 42 of P.D. No. 807 also mandates that any fault, negligence or petition
of a suspended employee may not be considered in the computation of the said period.
Thus, when a suspended employee obtains from a court of justice a restraining order or a
preliminary injunction inhibiting proceedings in an administrative case, the lifespan of such
court order should be excluded in the reckoning of the permissible period of the preventive
suspension. 9
With respect to the issue of whether or not the DOTC Secretary and/or the AAB may
initiate and hear administrative cases against PPA personnel below the rank of Assistant
General Manager, the Court qualifiedly rules in favor of petitioner.
The PPA was created through P.D. No. 505 dated July 11, 1974. Under that law, the
corporate powers of the PPA were vested in a governing Board of Directors known as the
Philippine Port Authority Council. Sec. 5(i) of the same decree gave the Council the power
"to appoint, discipline and remove, and determine the composition of the technical staff of
the Authority and other personnel."
On December 23, 1975, P.D. No. 505 was substituted by P.D. No. 857. Sec. 4(a) thereof
created the Philippine Ports Authority which would be "attached" to the then Department of
Public Works, Transportation and Communication. When Executive Order No. 125 dated
January 30, 1987 reorganizing the Ministry of Transportation and Communications was
issued, the PPA retained its "attached" status. 1 0 Even Executive Order No. 292 or the
Administrative Code of 1987 classified the PPA as an agency "attached" to the
Department of Transportation and Communications (DOTC). Sec. 24 of Book IV, Title XV,
Chapter 6 of the same Code provides that the agencies attached to the DOTC "shall
continue to operate and function in accordance with the respective charters or laws
creating them, except when they conflict with this Code.
Attachment of an agency to a Department is one of the three administrative relationships
mentioned in Book IV, Chapter 7 of the Administrative Code of 1987, the other two being
supervision and control and administrative supervision. "Attachment" is defined in Sec. 38
thereof as follows:
"(3) Attachment. — (a) This refers to the lateral relationship between the
department or its equivalent and the attached agency or coordination. The
coordination shall be accomplished by having the department represented in the
governing board of the attached agency or corporation, either as chairman or as a
member, with or without voting rights, if this is permitted by the charter; having
the attached corporation or agency comply with a system of periodic reporting
which shall reflect the progress of programs and projects; and having the
department or its equivalent provide general policies through its representative in
the board, which shall serve as the framework for the internal policies of the
attached corporation or agency;
(b) Matters of day-to-day administration or all those pertaining to internal
operations shall be left to the discretion or judgment of the executive officer of
the agency or corporation. In the event that the Secretary and the head of the
board or the attached agency or corporation strongly disagree on the
interpretation and application of policies, and the Secretary is unable to resolve
the disagreement, he shall bring the matter to the President for resolution and
direction;
(c) Government-owned or controlled corporations attached to a department
shall submit to the Secretary concerned their audited financial statements within
sixty (60) days after the close of the fiscal year; and
(d) Pending submission of the required financial statements, the corporation
shall continue to operate on the basis of the preceding year's budget until the
financial statements shall have been submitted. Should any government-owned
or controlled corporation incur an operation deficit at the close of its fiscal year, it
shall be subject to administrative supervision of the department; and the
corporation's operating and capital budget shall be subject to the department's
examination, review, modification and approval." (Emphasis supplied.)
An attached agency has a larger measure of independence from the Department to which
it is attached than one which is under departmental supervision and control or
administrative supervision. This is borne out by the "lateral relationship" between the
Department and the attached agency. The attachment is merely for "policy and program
coordination." With respect to administrative matters, the independence of an attached
agency from Departmental control and supervision is further reinforced by the fact that
even an agency under a Department's administrative supervision is free from Departmental
interference with respect to appointments and other personnel actions "in accordance
with the decentralization of personnel functions" under the Administrative Code of 1987.
1 1 Moreover, the Administrative Code explicitly provides that Chapter 8 of Book IV on
supervision and control shall not apply to chartered institutions attached to a Department.
12
Hence, the inescapable conclusion is that with respect to the management of personnel,
an attached agency is, to a certain extent, free from Departmental interference and control.
This is more explicitly shown by P.D. No. 857 which provides:
"SEC. 8. Management and Staff . — a) The President shall, upon the
recommendation of the Board, appoint the General Manager and the Assistant
General Managers.
b) All other officials and employees of the Authority shall be selected and
appointed on the basis of merit and fitness based on a comprehensive and
progressive merit system to be established by the Authority immediately upon its
organization and consistent with Civil Service rules and regulations. The
recruitment, transfer, promotion, and dismissal of all personnel of the Authority,
including temporary workers, shall be governed by such merit system.
c) The General Manager shall, subject to the approval of the Board, determine
the staffing pattern and the number of personnel of the Authority, define their
duties and responsibilities, and fix their salaries and emoluments. For
professional and technical positions, the General Manager shall recommend
salaries and emoluments that are comparable to those of similar positions in
other government-owned corporations, the provisions of existing rules and
regulations on wage and position classification notwithstanding.
d) The General Manager shall, subject to the approval by the Board, appoint
and remove personnel below the rank of Assistant General Manager.
xxx xxx xxx" (Emphasis supplied.)
Although the foregoing section does not expressly provide for a mechanism for an
administrative investigation of personnel, by vesting the power to remove erring
employees on the General Manager, with the approval of the PPA Board of Directors, the
law impliedly grants said officials the power to investigate its personnel below the rank of
Assistant Manager who may be charged with an administrative offense. During such
investigation, the PPA General Manager, as earlier stated, may subject the employee
concerned to preventive suspension. The investigation should be conducted in accordance
with the procedure set out in Sec. 38 of P.D. No. 807. 1 3 Only after gathering sufficient
facts may the PPA General Manager impose the proper penalty in accordance with law. It
is the latter action which requires the approval of the PPA Board of Directors. 1 4
From an adverse decision of the PPA General Manager and the Board of Directors, the
employee concerned may elevate the matter to the Department Head or Secretary.
Otherwise, he may appeal directly to the Civil Service Commission. The permissive
recourse to the Department Secretary is sanctioned by the Civil Service Law (P.D. No. 807)
under the following provisions:
"SEC. 37. Disciplinary Jurisdiction. — (a) The Commission shall decide upon
appeal all administrative disciplinary cases involving the imposition of a penalty
of suspension for more than thirty days, or fine in an amount exceeding thirty
days' salary, demotion in rank or salary or transfer, removal or dismissal from
office. A complaint may be filed directly with the Commission by a private citizen
against a government official or employee in which case it may hear and decide
the case or it may deputize any department or agency or official or group of
officials to conduct the investigation. The results of the investigation shall be
submitted to the Commission with recommendation as to the penalty to be
imposed or other action to be taken."
(b) The heads of departments, agencies and instrumentalities, provinces,
cities and municipalities shall have jurisdiction to investigate and decide matters
involving disciplinary action against officers and employees under their
jurisdiction. The decisions shall be final in case the penalty imposed is
suspension for not more than thirty days or fine in an amount not exceeding thirty
days' salary. In case the decision rendered by a bureau or office head is
appealable to the Commission, the same may be initially appealed to the
department and finally to the Commission and pending appeal, the same shall be
executory except when the penalty is removal, in which case the same shall be
executory only after confirmation by the department head.
"xxx xxx xxx" (Emphasis supplied.)
It is, therefore, clear that the transmittal of the complaint by the PPA General Manager to
the AAB was premature. The PPA General Manager should have first conducted an
investigation, made the proper recommendation for the imposable penalty and sought its
approval by the PPA Board of Directors. It was discretionary on the part of the herein
petitioner to elevate the case to the then DOTC Secretary Reyes. Only then could the AAB
take jurisdiction of the case.
The AAB, which was created during the tenure of Secretary Reyes under Office Order No.
88-318 dated July 1, 1988, was designed to act, decide and recommend to him "all cases
of administrative malfeasance, irregularities, grafts and acts of corruption in the
Department." Composed of a Chairman and two (2) members, the AAB came into being
pursuant to Administrative Order No. 25 issued by the President on May 25, 1987. 1 5 Its
special nature as a quasi-judicial administrative body notwithstanding, the AAB is not
exempt from the observance of due process in its proceedings. 1 6 We are not satisfied
that it did so in this case the respondents protestation that petitioner waived his right to
be heard notwithstanding. It should be observed that petitioner was precisely questioning
the AAB's jurisdiction when it sought judicial recourse. cdasia
WHEREFORE, the decision of the Court of Appeals is AFFIRMED insofar as it upholds the
power of the PPA General Manager to subject petitioner to preventive suspension and
REVERSED insofar as it validates the jurisdiction of the DOTC and/or the AAB to act on
Administrative Case No. PPA-AAB-1-049-89 and rules that due process has been
accorded the petitioner.
The AAB decision in said case is hereby declared NULL and VOID and the case is
REMANDED to the PPA whose General Manager shall conduct with dispatch its
reinvestigation.
The preventive suspension of petitioner shall continue unless after a determination of its
duration, it is found that he had served the total of ninety (90) days in which case he shall
be reinstated immediately.
SO ORDERED.
Narvasa, C .J ., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Bidin, Griño-Aquino, Medialdea,
Regalado, Davide, Jr. and Nocon, JJ ., concur.
Feliciano, J ., is on leave.
Padilla and Bellosilo, JJ ., took no part.
Footnotes
1. Petitioner was referred to as "Fidencio Y. Beja" in the proceedings below. He appears as

"Fidencio Y. Beja, Sr." for the first time in this forum.
2. Case No. 89-053.
3. Two other cases involving substantially the same issues were likewise referred by the
Court to the Court of Appeals G.R. Nos. 86468-69 (Leopoldo F. Bungabung v. Hon.
Reinerio O. Reyes, et al.) and G.R. No. 86646 (Reinerio O. Reyes, et al. vs. Cristeto O.
Dinopol, et al.).
4. Penned by Justice Venancio D. Aldecoa, Jr. and concurred in by Justices Fidel P.

Purisima and Abelardo M. Dayrit.
5. Petition, p. 3; Rollo, p. 4.
6. Petition, pp. 13-14; Rollo, pp. 14-15.
7. Bautista v. Peralta, L-21967, September 29, 1968, 18 SCRA 223, 225-226.
8. Sec. 42, P.D. No. 807.
9. Orbos v. Bungubung, G.R. No. 92358, November 21, 1990, 191 SCRA 563.
10. Sec. 18 (a).
11. Sec. 38 (2), par. (b).
12. Sec. 39 (2).
13. "SEC. 38. Procedure in Administrative Cases Against Non-Presidential Appointees. — (a)
Administrative proceedings may be commenced against a subordinate officer or
employee by the head of department or office of equivalent rank, or head of local
government, or chiefs of agencies, or regional directors, or upon sworn written complaint
of any other persons.
(b) In the case of a complaint filed by any other persons, the complainant
shall submit sworn statements covering his testimony and those of his witnesses
together with his documentary evidence. If on the basis of such papers a prima facie
case is found not to exist, the disciplining authority shall dismiss the case. If a prima
facie case exists, he shall notify the respondent in writing, of the charges against the
latter, to which shall be attached copies of the complaint, sworn statements and other
documents submitted, and the respondent shall be allowed not less than seventy-two
hours after receipt of the complaint to answer the charges in writing under oath,
together with supporting sworn statements and documents, in which he shall indicate
whether or not he elects a formal investigation if his answer is not considered
satisfactory. If the answer is found satisfactory, the disciplining authority shall dismiss
the case.
(c) Although a respondent does not request a formal investigation, one shall
nevertheless be conducted when from the allegations, of the complaint and the answer
of the respondent, including the supporting documents, the merits of the case cannot
be decided judiciously without conducting such an investigation.
(d) The investigation shall be held not earlier than five days nor later than
ten days from the date of receipt of respondent's answer by the disciplining authority,
and shall be finished within thirty days from the filing of the charges, unless the period
is extended by the Commission in meritorious cases. The decision shall be rendered by
the disciplining authority within thirty days from the termination of the investigation or
submission of the report of the investigator, which report shall be submitted within
fifteen days from the conclusion of the investigation.
(e) The direct evidence for the complainant and the respondent shall consist
of the sworn statement and documents submitted in support of the complaint or
answer, as the case may be, without prejudice to the presentation of additional
evidence deemed necessary but was unavailable at the time of the filing of the
complaint, or answer, upon which the cross-examination, by respondent and the
complainant, respectively, shall be based. Following cross-examination, there may be
redirect and recross-examination.
(f) Either party may avail himself of the services of counsel and may require
the attendance of witnesses and the production of documentary evidence in his favor
through the compulsory process of subpoena or subpoena duces tecum.
(g) The investigation shall be conducted only for the purpose of
ascertaining the truth and without necessarily adhering to technical rules applicable in
judicial proceedings. It shall be conducted by the disciplining authority concerned or
his authorized representative.
The phrase 'any other party' shall be understood to be a complainant other than
those referred to in subsection (a) hereof."
14. Under the last paragraph of Sec. 36 of P.D. No. 807, the disciplining authority may
impose the penalty of removal from the service, transfer, demotion in rank, suspension
for not more than one year without pay, fine in an amount not exceeding six months'
salary, or reprimand.
15. Respondents Comment, p. 1; Rollo, p. 85.
16. Lupo v. Administrative Action Board, G.R. No. 89687, September 26, 1990, 190 SCRA
69.

EN BANC
[G.R. No. 115863. March 31, 1995.]
AIDA D. EUGENIO , petitioner, vs. CIVIL SERVICE COMMISSION, HON.

TEOFISTO T. GUINGONA, JR. & HON. SALVADOR ENRIQUEZ, JR. ,
respondent.
Mauricio Law Office for petitioner.

The Solicitor General for respondents.
SYLLABUS
1. POLITICAL LAW; CIVIL SERVICE COMMISSION (CSC); CAREER EXECUTIVE SERVICE

BOARD (CESB); AN OFFICE CREATED BY LAW AND CAN ONLY BE ABOLISHED BY LAW. —
The Career Executive Service Board (CESB) was created by Presidential Decree (P.D.) No.
1 on September 1, 1974 which adopted the Integrated Reorganization Plan. As the CESB
was created by law, it can only be abolished by the legislature. This follows an unbroken
stream of rulings that the creation and abolition of public offices is primarily a legislative
function. As aptly summed up in AM JUR 2d on Public Officers and Employees, viz: Except
for such offices as are created by the Constitution, the creation of public offices is
primarily a legislative function. In so far as the legislative power in this respect is not
restricted by constitutional provisions, it is supreme, and the legislature may decide for
itself what offices are suitable, necessary, or convenient. When in the exigencies of
government it is necessary to create and define duties, the legislative department has the
discretion to determine whether additional offices shall be created, or whether these
duties shall be attached to and become ex-officio duties of existing offices. An office
created by the legislature is wholly within the power of that body, and it may prescribe the
mode of filling the office and the powers and duties of the incumbent, and, if it sees fit,
abolish the office." In the petition at bench, the legislature has not enacted any law
authorizing the abolition of the CESB. On the contrary, in all the General Appropriation Acts
from 1975 to 1993, the legislature has set aside funds for the operation of CESB.
2. ID.; ID.; ID.; AUTONOMOUS ENTITY THAT CANNOT BE ABOLISHED BY CSC. —
Respondent Commission invokes Section 17, Chapter 3, Subtitle A, Title I, Book V of the
Administrative Code of 1987 as the source of its power to abolish the CESB. Section 17
must be read together with Section 16 of the said Code which enumerates the offices
under the respondent Commission. As read together, the inescapable conclusion is that
respondent Commission's power to reorganize is limited to offices under its control as
enumerated in Section 16. From its inception, the CESB was intended to be an
autonomous entity, albeit administratively attached to respondent Commission. As
conceptualized by the Reorganization Committee "the CESB shall be autonomous. It is
expected to view the problem of building up executive manpower in the government with a
broad and positive outlook." The essential autonomous character of the CESB is not
negated by its attachment to respondent Commission. By said attachment, CESB was not
made to fall within the control of respondent Commission. Under the Administrative Code
of 1987, the purpose of attaching any functionally inter-related government agency to
another is to attain "policy and program coordination." This is clearly etched out in Section
38(3), Chapter 7, Book IV of the aforecited Code.
DECISION
PUNO , J : p
The power of the Civil Service Commission to abolish the Career Executive
Service Board is challenged in this petition for certiorari and prohibition. cdphil
First the facts. Petitioner is the Deputy Director of the Philippine Nuclear
Research Institute. She applied for a Career Executive Service (CES) Eligibility and a
CESO rank. On August 2, 1993, she was given a CES eligibility. On September 15, 1993,
she was recommended to the President for a CESO rank by the Career Executive
Service Board. 1
All was not to turn well for petitioner. On October 1, 1993, respondent Civil
Service Commission 2 passed Resolution No. 93-4359, viz:
RESOLUTION NO. 93-4359
"WHEREAS, Section 1(1) of Article IX-B provides that the Civil Service shall be
administered by the Civil Service Commission, . . . ";
"WHEREAS, Section 3, Article IX-B of the 1987 Philippine Constitution provides

that 'The Civil Service Commission, as the central personnel agency of the
government, is mandated to establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness, progressiveness and
courtesy in the civil service, . . . ';
"WHEREAS, Section 12 (1), Title I, Subtitle A, Book V of the Administrative Code of

1987 grants the Commission the power, among others, to administer and enforce
the constitutional and statutory provisions on the merit system for all levels and
ranks in the Civil Service;
"WHEREAS, Section 7, Title I, Subtitle A, Book V of the Administrative Code of
1987 provides, among others, that 'The Career Service shall be characterized by
(1) entrance based on merit and fitness to be determined as far as practicable by
competitive examination, or based on highly technical qualifications; (2)
opportunity for advancement to higher career positions; and (3) security of tenure;
"WHEREAS, Section 8 (c), Title I, Subtitle A, Book V of the Administrative Code of

1987 provides that 'The third level shall cover position in the Career Executive
Service';
"WHEREAS, the Commission recognizes the imperative need to consolidate,
integrate and unify the administration of all levels of positions in the career
service;
"WHEREAS, the provisions of Section 17, Title I, Subtitle A, Book V of the

Administrative Code of 1987 confers on the Commission the power and authority
to effect changes in its organization as the need arises.
"WHEREAS, Section 5, Article IX-A of the Constitution provides that the Civil
Service Commission shall enjoy fiscal autonomy and the necessary implications
thereof;
"NOW THEREFORE, foregoing premises considered, the Civil Service Commission

hereby resolves to streamline, reorganize and effect changes in its organizational
structure. Pursuant thereto, the Career Executive Service Board, shall now be
known as the Office for Career Executive Service of the Civil Service Commission.
Accordingly, the existing personnel, budget, properties and equipment of the
Career Executive Service Board shall now form part of the Office for Career
Executive Service."
The above resolution became an impediment to the appointment of petitioner as

Civil Service Of cer, Rank IV. In a letter to petitioner, dated June 7, 1994, the Honorable
Antonio T. Carpio, Chief Presidential Legal Counsel, stated:
"xxx xxx xxx
"On 1 October 1993, the Civil Service Commission issued CSC Resolution No. 93-
4359 which abolished the Career Executive Service Board. prLL
"Several legal issues have arisen as a result of the issuance of CSC Resolution
No. 93-4359, including whether the Civil Service Commission has authority to
abolish the Career Executive Service Board. Because these issues remain
unresolved, the Office of the President has refrained from considering
appointments of career service eligibles to career executive ranks.
"xxx xxx xxx
"You may, however, bring a case before the appropriate court to settle the legal
issues arising from the issuance by the Civil Service Commission of CSC
Resolution No. 93-4359, for guidance of all concerned.
"Thank you."
Finding herself bereft of further administrative relief as the Career Executive

Service Board which recommended her CESO Rank IV has been abolished, petitioner
led the petition at bench to annul, among others, Resolution No. 93-4359. The petition
is anchored on the following arguments:
"A.
IN VIOLATION OF THE CONSTITUTION, RESPONDENT COMMISSION USURPED

THE LEGISLATIVE FUNCTIONS OF CONGRESS WHEN IT ABOLISHED THE CESB,
AN OFFICE CREATED BY LAW, THROUGH THE ISSUANCE OF CSC RESOLUTION
NO. 93-4359;
"B.
ALSO IN VIOLATION OF THE CONSTITUTION, RESPONDENT CSC USURPED THE
LEGISLATIVE FUNCTIONS OF CONGRESS WHEN IT ILLEGALLY AUTHORIZED
THE TRANSFER OF PUBLIC MONEY, THROUGH THE ISSUANCE. OF CSC
RESOLUTION NO. 93-4359."
Required to le its Comment, the Solicitor General agreed with the contentions of
petitioner. Respondent Commission, however, chose to defend its ground. It posited
the following position:
"ARGUMENTS FOR PUBLIC RESPONDENT-CSC
"I. THE INSTANT PETITION STATES NO CAUSE OF ACTION AGAINST THE
PUBLIC RESPONDENT-CSC.
"II. THE RECOMMENDATION SUBMITTED TO THE PRESIDENT FOR
APPOINTMENT TO A CESO RANK OF PETITIONER EUGENIO WAS A VALID
ACT OF THE CAREER EXECUTIVE SERVICE BOARD OF THE CIVIL SERVICE
COMMISSION AND IT DOES NOT HAVE ANY DEFECT.
"III. THE OFFICE OF THE PRESIDENT IS ESTOPPED FROM QUESTIONING
THE VALIDITY OF THE RECOMMENDATION OF THE CESB IN FAVOR OF
PETITIONER EUGENIO SINCE THE PRESIDENT HAS PREVIOUSLY
APPOINTED TO CESO RANK FOUR (4) OFFICIALS SIMILARLY SITUATED
AS SAID PETITIONER. FURTHERMORE, LACK OF MEMBERS TO
CONSTITUTE A QUORUM, ASSUMING THERE WAS NO QUORUM, IS NOT
THE FAULT OF PUBLIC RESPONDENT CIVIL SERVICE COMMISSION BUT
OF THE PRESIDENT WHO HAS THE POWER TO APPOINT THE OTHER
MEMBERS OF THE CESB. LLphil
"IV. THE INTEGRATION OF THE CESB INTO THE COMMISSION IS

AUTHORIZED BY LAW (Sec. 12(1), Title I, Subtitle A, Book V of the
Administrative Code of 1987). THIS PARTICULAR ISSUE HAD ALREADY
BEEN SETTLED WHEN THE HONORABLE COURT DISMISSED THE
PETITION FILED BY THE HONORABLE MEMBERS OF THE HOUSE OF
REPRESENTATIVES, NAMELY: SIMEON A. DATUMANONG, FELICIANO R.
BELMONTE, JR., RENATO V. DIAZ, AND MANUEL M. GARCIA IN G.R. NO.
114380. THE AFOREMENTIONED PETITIONERS ALSO QUESTIONED THE
INTEGRATION OF THE CESB WITH THE COMMISSION."
We find merit in the petition. 3

The controlling fact is that the Career Executive Service Board (CESB) was
created by Presidential Decree (P.D.) No. 1 on September 1, 1974 4 which adopted the
Integrated Reorganization Plan. Article IV, Chapter I, Part III of the said Plan provides:
"Article IV — Career Executive Service
"1. A Career Executive Service is created to form a continuing pool of well-

selected and development-oriented career administrators who shall provide
competent and faithful service.
"2. A Career Executive Service Board, hereinafter referred to in this Chapter as

the Board, is created to serve as the governing body of the Career Executive
Service. The Board shall consist of the Chairman of the Civil Service Commission
as presiding officer, the Executive Secretary and the Commissioner of the Budget
as ex-officio members and two other members from the private sector and/or the
academic community who are familiar with the principles and methods of
personnel administration.
"xxx xxx xxx

"5. The Board shall promulgate rules, standards and procedures on the
selection, classification, compensation and career development of members of
the Career Executive Service. The Board shall set up the organization and
operation of the service." (Emphasis supplied)
It cannot be disputed, therefore, that as the CESB was created by law, it can only
be abolished by the legislature. This follows an unbroken stream of rulings that the
creation and abolition of public of ces is primarily a legislative function. As aptly
summed up in AM JUR 2d on Public Officers and Employees, 5 viz:
"Except for such offices as are created by the Constitution, the creation of public
offices is primarily a legislative function. In so far as the legislative power in this
respect is not restricted by constitutional provisions, it is supreme, and the
legislature may decide for itself what offices are suitable, necessary, or
convenient. When in the exigencies of government it is necessary to create and
define duties, the legislative department has the discretion to determine whether
additional offices shall be created, or whether these duties shall be attached to
and become ex-officio duties of existing offices. An office created by the
legislature is wholly within the power of that body, and it may prescribe the mode
of filling the office and the powers and duties of the incumbent and, if it sees fit,
abolish the office."
In the petition at bench, the legislature has not enacted any law authorizing the
abolition of the CESB. On the contrary, in all the General Appropriations Acts from 1975
to 1993, the legislature has set aside funds for the operation of CESB. Respondent
Commission, however, invokes Section 17, Chapter 3, Subtitle A, Title I, Book V of the
Administrative Code of 1987 as the source of its power to abolish the CESB. Section
17 provides:
"Section 17. Organizational Structure. — Each office of the Commission shall
be headed by a Director with at least one Assistant Director, and may have such
divisions as are necessary to carry out their respective functions. As an
independent constitutional body, the Commission may effect changes in the
organization as the need arises."
But, as well pointed out by petitioner and the Solicitor General, Section 17 must be read
together with Section 16 of the said Code which enumerates the of ces under the
respondent Commission, viz:
"SEC. 16. Offices in the Commission. — The Commission shall have the
following offices:
"(1) The Office of the Executive Director headed by an Executive

Director, with a Deputy Executive Director shall implement policies,
standards, rules and regulations promulgated by the Commission;
coordinate the programs of the offices of the Commission and render
periodic reports on their operations, and perform such other functions as
may be assigned by the Commission. cdphil
"(2) The Merit System Protection Board composed of a Chairman and

two (2) members shall have the following functions:
"xxx xxx xxx
"(3) The Office of Legal Affairs shall provide the Chairman with legal
advice and assistance; render counselling services; undertake legal studies
and researches; prepare opinions and ruling in the interpretation and
application of the Civil Service law, rules and regulations; prosecute
violations of such law, rules and regulations; and represent the
Commission, before any court or tribunal.
"(4) The Office of Planning and Management shall formulate

development plans, programs and projects; undertake research and studies
on the different aspects of public personnel management; administer
management improvement programs; and provide fiscal and budgetary
services.
"(5) The Central Administrative Office shall provide the Commission

with personnel, financial, logistics and other basic support services.
"(6) The Office of Central Personnel Records shall formulate and

implement policies, standards, rules and regulations pertaining to
personnel records maintenance, security, control and disposal; provide
storage and extension services; and provide and maintain library services.
"(7) The Office of Position Classification and Compensation shall
formulate and implement policies, standards, rules and regulations relative
to the administration of position classification and compensation.
"(8) The Office of Recruitment, Examination and Placement shall
provide leadership and assistance in developing and implementing the
overall Commission programs relating to recruitment, execution and
placement, and formulate policies, standards, rules and regulations for the
proper implementation of the Commission's examination and placement
programs.
"(9) The Office of Career Systems and Standards shall provide

leadership and assistance in the formulation and evaluation of personnel
systems and standards, relative to performance appraisal, merit promotion,
and employee incentive benefits and awards.
"(10) The Office of Human Resource Development shall provide
leadership and assistance in the development and retention of qualified
and efficient work force in the Civil Service; formulate standards for
training and staff development; administer service-wide scholarship
programs; develop training literature and materials; coordinate and
integrate all training activities and evaluate training programs.
"(11) The Office of Personnel Inspection and Relations and Audit shall
develop policies, standards, rules and regulations for the effective conduct
or inspection and audit personnel and personnel management programs
and the exercise of delegated authority; provide technical and advisory
services to Civil Service Regional Offices and government agencies in the
implementation of their personnel programs and evaluation systems. LLjur
"(12) The Office of Personnel Relations shall provide leadership and

assistance in the development and implementation of policies, standards,
rules and regulations in the accreditation of employee associations or
organizations and in the adjustment and settlement of employee
grievances and management of employee disputes.
"(13) The Office of Corporate Affairs shall formulate and implement
policies, standards, rules and regulations governing corporate officials and
employees in the areas of recruitment, examination, placement, career
development, merit and awards systems, position classification and
compensation, performing appraisal, employee welfare and benefit,
discipline and other aspects of personnel management on the basis of
comparable industry practices.
"(14) The Office of Retirement Administration shall be responsible for
the enforcement of the constitutional and statutory provisions, relative to
retirement and the regulation for the effective implementation of the
retirement of government officials and employees.
"(15) The Regional and Field Offices. — The Commission shall have
not less than thirteen (13) Regional offices each to be headed by a
Director, and such field offices as may be needed, each to be headed by an
official with at least the rank of an Assistant Director.
As read together, the inescapable conclusion is that respondent Commission's power

to reorganize is limited to of ces under its control as enumerated in Section 16, supra.
From its inception, the CESB was intended to be an autonomous entity, albeit
administratively attached to respondent Commission. As conceptualized by the
Reorganization Committee "the CESB shall be autonomous. It is expected to view the
problem of building up executive manpower in the government with a broad and
positive outlook." 6 The essential autonomous character of the CESB is not negated by
its attachment to respondent Commission. By said attachment, CESB was not made to
fall within the control of respondent Commission. Under the Administrative Code of
1987, the purpose of attaching one functionally inter-related government agency to
another is to attain "policy and program coordination." This is clearly etched out in
Section 38(3), Chapter 7, Book IV of the aforecited Code, to wit:
"(3) Attachment. — (a) This refers to the lateral relationship between the
department or its equivalent and the attached agency or corporation for purposes
of policy and program coordination. The coordination may be accomplished by
having the department represented in the governing board of the attached agency
or corporation, either as chairman or as a member, with or without voting rights, if
this is permitted by the charter; having the attached corporation or agency comply
with a system of periodic reporting which shall reflect the progress of programs
and projects; and having the department or its equivalent provide general policies
through its representative in the board, which shall serve as the framework: for the
internal policies of the attached corporation or agency." llcd
Respondent Commission also relies on the case of Datumanong, et al. vs. Civil
Service Commission, G.R. No. 114380 where the petition assailing the abolition of the
CESB was dismissed for lack of cause of action. Suf ce to state that the reliance is
misplaced considering that the cited case was dismissed for lack of standing of the
petitioner, hence, the lack of cause of action.
IN VIEW WHEREOF, the petition is granted and Resolution No. 93-4359 of the
respondent Commission is hereby annulled and set aside. No costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Vitug, Kapunan, Mendoza, and Francisco, JJ., concur.
Footnotes
1. Together with twenty-six (26) others.
2. Patricia A. Sto. Tomas (Chairman), Ramon P. Ereneta, Jr., (member) and Thelma P.
Gaminde (member).
3. On February 13, 1995 respondent CSC manifested that the President appointed
petitioner to a CESO rank on January 9, 1995. Her appointment, however, has not
rendered moot the broader issue of whether or not the abolition of Career Executive
Service Board is valid.
4. P.D. No. 1 was later amended by P.D. No. 336 and P.D. No. 367 on the composition of
the CESB; P.D. No. 807 and E.O. No. 292 (Administrative Code of 1987) reiterated the
functions of the CESB. The General Appropriations Acts from 1975 to 1993 also
uniformly appropriated funds for the CESB.
5. 63 AM JUR 2d section 30.
6. Reorganization Panel Reports, Vol. II pp. 16 to 49 as cited in Petition, p. 17.

EN BANC
[G.R. No. 83578. March 16, 1989.]
THE PRESIDENTIAL ANTI-DOLLAR SALTING TASK FORCE , petitioner,

vs. HONORABLE COURT OF APPEALS, HONORABLE TEOFILO L.
GUADIZ, JR., Presiding Judge, REGIONAL TRIAL COURT, Branch 147,
NCR (MAKATI), and KARAMFIL IMPORT-EXPORT CO., INC. ,
respondents.
K.V. Faylona & Associates for respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; WHERE LEGISLATION

PROVIDES FOR AN APPEAL FROM DECISIONS OF CERTAIN ADMINISTRATIVE BODIES
TO THE COURT OF APPEALS, SUCH BODIES ARE CO-EQUAL WITH THE REGIONAL
TRIAL COURTS. — As a rule, where legislation provides for an appeal from decisions of
certain administrative bodies to the Court of Appeals, it means that such bodies are co-
equal with the Regional Trial Courts, in terms of rank and stature, and logically, beyond
the control of the latter.
2. ADMINISTRATIVE LAW; QUASI-JUDICIAL BODY; DEFINITION. — A quasi-
judicial body has been de ned as "an organ of government other than a court and other
than a legislature, which affects the rights of private parties through either adjudication
or rule making."
3. CONSTITUTIONAL LAW; EXECUTIVE DEPARTMENT; PRESIDENTIAL
DECREE NO. 1936; PRESIDENTIAL ANTI-DOLLAR SALTING TASK FORCE; DOES NOT
HAVE POWER TO EXERCISE QUASI-JUDICIAL FUNCTIONS BUT ONLY OF
PROSECUTING "DOLLAR-SALTING" ACTIVITIES. — A perusal of the Presidential Anti-
Dollar Salting Task Force's organic act, Presidential Decree No. 1936, as amended by
Presidential Decree No. 2002, convinces the Court that the Task Force was not meant
to exercise quasi-judicial functions, that is, to try and decide claims and execute its
judgments. As the President's arm called upon to combat the vice of "dollar salting" or
the blackmarketing and salting of foreign exchange, it is tasked alone by the Decree to
handle the prosecution of such activities, but nothing more.
4. ID.; ID.; ID.; DUTIES ARE TO CONDUCT AN INQUIRY PRELIMINARY TO A
JUDICIAL RECOURSE AND TO RECOMMEND ACTION "OF APPROPRIATE
AUTHORITIES." — The Presidential Anti-Dollar Salting Task Force's undertaking, as we
said, is simply, to determine whether or not probable cause exists to warrant the ling
of charges with the proper court, meaning to say, to conduct an inquiry preliminary to a
judicial recourse, and to recommend action "of appropriate authorities". It is not unlike a
scal's o ce that conducts a preliminary investigation to determine whether or not
prima facie evidence exists to justify haling the respondent to court, and yet, while it
makes that determination, it cannot be said to be acting as a quasi-court. For it is the
courts, ultimately, that pass judgment on the accused, not the fiscal.
5. ID.; ID.; ID.; POWERS SIMILAR TO PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT BUT BOTH ARE NOT QUASI-JUDICIAL ENTITIES. — It is not unlike the
Presidential Commission on Good Government either, the executive body appointed to
investigate and prosecute cases involving "ill-gotten wealth". It had been vested with
enormous powers, like the issuance of writs of sequestration, freeze orders, and similar
processes, but that did not, on account thereof alone, make it a quasi-judicial entity as
de ned by recognized authorities. It cannot pronounce judgment of the accused's
culpability, the jurisdiction to do which is exclusive upon the Sandiganbayan.
6. ID.; ID.; ID.; NOT CO-EQUAL OR COORDINATE WITH THE REGIONAL TRIAL
COURT AS IT IS NOT A QUASI-JUDICIAL BODY. — If the Presidential Anti-Dollar Salting
Task Force is not, hence, a quasi-judicial body, it cannot be said to be co-equal or
coordinate with the Regional Trial Court. There is nothing in its enabling statutes that
would demonstrate its standing at par with the said court.
7. ID.; ID.; PRESIDENTIAL DECREE NO. 1936, UNCONSTITUTIONAL,
REASONS. — We agree that the Presidential Anti-Dollar Salting Task Force exercises, or
was meant to exercise, prosecutorial powers, and on that ground, it cannot be said to
be a neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested in
the success of his case. Although his o ce "is to see that justice is done and not
necessarily to secure the conviction of the person accused," he stands, invariably, as the
accused's adversary and his accuser. To permit him to issue search warrants and
indeed, warrants of arrest, is to make him both judge and jury in his own right, when he
is neither. That makes, to our mind and to that extent, Presidential Decree No. 1936 as
amended by Presidential Decree No. 2002, unconstitutional.
8. ID.; 1973 CONSTITUTION; BILL OF RIGHTS; RIGHT OF THE PEOPLE TO BE
SECURE IN THEIR PERSONS, HOUSES, PAPERS AND EFFECTS; OFFICER HIMSELF
MUST BE "RESPONSIBLE; MEANING OF "RESPONSIBILITY." — It is our ruling, thus, that
when the 1973 Constitution spoke of "responsible o cer" to whom the authority to
issue arrest and search warrants may be delegated by legislation, it did not furnish the
legislator with the license to give that authority to whomsoever it pleased. It is to be
noted that the Charter itself makes the quali cation that the o cer himself must be
"responsible". We are not saying, of course, that the Presidential Anti-Dollar Salting Task
Force (or any similar prosecutor) is or has been irresponsible in discharging its duty.
Rather, we take "responsibility", as used by the Constitution, to mean not only skill and
competence but more signi cantly, neutrality and independence comparable to the
impartiality presumed of a judicial o cer. A prosecutor can in no manner be said to be
possessed of the latter qualities.
9. ID.; ID.; ID.; ID.; EXCLUSION OF PROSECUTORS THEREUNDER DEMANDED
BY PRINCIPLE OF SEPARATION OF POWERS. — According to the Court of Appeals, the
implied exclusion of prosecutors under the 1973 Constitution was founded on the
requirements of due process, notably, the assurance to the respondent of an unbiased
inquiry of the charges against him prior to the arrest of his person or seizure of his
property. We add that the exclusion is also demanded by the principle of separation of
powers on which our republican structure rests. Prosecutors exercise essentially an
executive function (the petitioner itself is chaired by the Minister, now Secretary, of
Trade and Industry), since under the Constitution, the President has pledged to execute
the laws. As such, they cannot be made to issue judicial processes without unlawfully
impinging the prerogative of the courts.
DECISION
SARMIENTO , J : p
The petitioner, the Presidential Anti-Dollar Salting Task Force, the President's arm
assigned to investigate and prosecute so-called "dollar salting" activities in the country
(per Presidential Decree No. 1936 as amended by Presidential Decree No. 2002), asks
the Court to hold as null and void two Resolutions of the Court of Appeals, dated
September 24, 1987 1 and May 20, 1988, 2 reversing its Decision, dated October 24,
1986. 3 The Decision set aside an Order, dated April 16, 1985, of the Regional Trial
Court, 4 as well as its Order, dated August 21, 1985. The Resolution, dated September
24, 1987 disposed of, and granted, the private respondent Karam l Import-Export Co.,
Inc.'s motion for reconsideration of the October 24, 1986 Decision; the Resolution
dated May 20, 1988, in turn, denied the petitioner's own motion for reconsideration. LLpr
The facts are not in controversy. We quote:

On March 12, 1985, State Prosecutor Jose B. Rosales, who is assigned
with the Presidential Anti-Dollar Salting Task Force hereinafter referred to as
PADS Task Force for purposes of convenience, issued search warrants Nos.
156, 157, 158, 159, 160 and 161 against the petitioners Karam l Import-Export
Co., Inc., P & B Enterprises Co., Inc., Philippine Veterans Corporation, Philippine
Veterans Development Corporation, Philippine Construction Development
Corporation, Philippine Lauan Industries Corporation, Intertrade Development
(Alvin Aquino), Amelili U. Malaquiok Enterprises and Jaime P. Lucman
Enterprises.
The application for the issuance of said search warrants was led by
Atty. Napoleon Gatmaytan of the Bureau of Customs who is a deputized
member of the PADS Task Force. Attached to the said application is the
a davit of Jose n M. Castro who is an operative and investigator of the PADS
Task Force. Said Jose n M. Castro is likewise the sole deponent in the
purported deposition to support the application for the issuance of the six (6)
search warrants involved in this case. The application led by Atty. Gatmaytan,
the affidavit and deposition of Josefin M. Castro are all dated March 12, 1985. 5
Shortly thereafter, the private respondent (the petitioner below) went to the
Regional Trial Court on a petition to enjoin the implementation of the search warrants in
question. 6 On March 13, 1985, the trial court issued a temporary restraining order
[effective "for a period of ve (5) days notice" 7 ] and set the case for hearing on March
18, 1985.
In disposing of the petition, the said court found the material issues to be:
1) Competency of this Court to act on petition filed by the petitioners;
2) Validity of the search warrants issued by respondent State
Prosecutor;
3) Whether or not the petition has become moot and academic
because all the search warrants sought to be quashed had already been
implemented and executed. 8
On April 16, 1985, the lower court issued the rst of its challenged Orders, and
held:
WHEREFORE, in view of all the foregoing, the Court hereby declares
Search Warrant Nos. 156, 157, 158, 159, 160, and 161 to be null and void.
Accordingly, the respondents are hereby ordered to return and surrender
immediately all the personal properties and documents seized by them from the
petitioners by virtue of the aforementioned search warrants.
SO ORDERED. 9
On August 21, 1985, the trial court denied reconsideration.
On April 4, 1986, the Presidential Anti-Dollar Salting Task Force went to the
respondent Court of Appeals to contest, on certiorari, the twin Order(s) of the lower
court.
In ruling initially for the Task Force, the Appellate Court held:
Herein petitioner is a special quasi-judicial body with express powers
enumerated under PD 1936 to prosecute foreign exchange violations de ned
and punished under P.D. No. 1883.
The petitioner, in exercising its quasi-judicial powers, ranks with the
Regional Trial Courts, and the latter in the case at bar had no jurisdiction to
declare the search warrants in question null and void.
Besides as correctly pointed out by the Assistant Solicitor General the
decision of the Presidential Anti-Dollar Salting Task Force is appealable to the
Office of the President. 1 0
On November 12, 1986, Karam l Import-Export Co., Inc. sought a
reconsideration, on the question primarily of whether or not the Presidential Anti-Dollar
Salting Task Force is "such other responsible o cer" countenanced by the 1973
Constitution to issue warrants of search and seizure.
As we have indicated, the Court of Appeals, on Karam l's motion, reversed itself
and issued its Resolution, dated September 1987, and subsequently, its Resolution,
dated May 20, 1988, denying the petitioner's motion for reconsideration.
In its petition to this Court, the petitioner alleges that in so issuing the
Resolution(s) above-mentioned, the respondent Court of Appeals "committed grave
abuse of discretion and/or acted in excess of its appellate jurisdiction," 1 1 specifically:
a) In deviating from the settled policy and rulings of the Supreme
Court that no Regional Trial Courts may countermand or restrain the
enforcement of lawful writs or decrees issued by a quasi-judicial body of equal
and coordinate rank, like the PADS Task Force;
b) For resorting to judicial legislation to arrive at its erroneous basis
for reconsidering its previous Decision dated October 24, 1986 (see Annex "I")
and thus promulgated the questioned Resolutions (Annexes "A" and "B"), which
violated the constitutional doctrine on separation of powers;
c) In not resolving directly the other important issues raised by the
petitioner in its Petition in CA-G.R. No. 08622-SP despite the fact that petitioner
has demonstrated su ciently and convincingly that respondent RTC, in issuing
the questioned Orders in Special Proceeding No. M-624 (see Annexes "C" and
"D"), committed grave abuse of discretion and/or acted in excess of jurisdiction:
1. In ruling that (a) the description of the things to be seized as
stated in the contested search warrant were too general which allegedly
render the search warrants null and void; (b) the applications for the
contested search warrants actually charged two offenses in contravention
of the 2nd paragraph, Section 3, Rule 126 of the Rules of Court; and (c) this
case has not 'become moot and academic, even if the contested search
warrants had already been fully implemented with positive results; and
2. In ruling that the petitioner PADS Task Force has not been
granted under PD 1936 "judicial or quasi-judicial jurisdiction." 1 2
We nd, upon the foregoing facts, that the essential questions that confront us
are — (i) is the Presidential Anti-Dollar Salting Task Force a quasi-judicial body, and one
co-equal in rank and standing with the Regional Trial Court, and accordingly, beyond the
latter's jurisdiction; and (ii) may the said presidential body be said to be "such other
responsible o cer as may be authorized by law" to issue search warrants under the
1973 Constitution? — questions we take up seriatim. *
In submitting that it is a quasi-judicial entity, the petitioner states that it is
endowed with express powers and functions under PD No. 1936, to prosecute foreign
exchange violations as de ned and punished under PD No. 1883." 1 3 "By the very nature
of its express powers as conferred by the laws," so it is contended, "which are
decidedly quasi-judicial or discretionary function, such as to conduct preliminary
investigation on the charges of foreign exchange violations, issue search warrants or
warrants of arrest, hold-departure orders, among others, and depending upon the
evidence presented, to dismiss the charges or to le the corresponding information in
court (cf, Executive Order No. 934, PD No. 1936 and its Implementing Rules and
Regulations effective August 26, 1984), petitioner exercises quasi-judicial power or the
power of adjudication." 1 4
The Court of Appeals, in its Resolution now assailed, 1 5 was of the opinion that "
[t]he grant of quasi-judicial powers to petitioner did not diminish the regular courts'
judicial power of interpretation. The right to interpret a law and, if necessary to declare
one unconstitutional, exclusively pertains to the judiciary. In assuming this function,
courts do not proceed on the theory that the judiciary is superior to the two other
coordinate branches of the government, but solely on the theory that they are required
to declare the law in every case which come before them." 1 6
This Court nds the Appellate Court to be in error, since what the petitioner puts
to question is the Regional Trial Court's act of assuming jurisdiction over the private
respondent's petition below and its subsequent countermand of the Presidential Anti-
Dollar Salting Task Force's orders of search and seizure, for the reason that the
presidential body, as an entity (allegedly) coordinate and co-equal with the Regional
Trial Court, was (is) not vested with such a jurisdiction. An examination of the
Presidential Anti-Dollar Salting Task Force's petition shows indeed its recognition of
judicial review (of the acts of Government) as a basic privilege of the courts. Its
objection, precisely, is whether it is the Regional Trial Court, or the superior courts, that
may undertake such a review. cdrep
Under the Judiciary Reorganization Act of 1980, 1 7 the Court of Appeals

exercises:
(3) Exclusive appellate jurisdiction over all nal judgments,
decisions, resolutions, orders or awards of Regional Trial Court and quasi-
judicial agencies, instrumentalities, boards or commissions, except those falling
within the appellate jurisdiction of the Supreme Court in accordance with the
Constitution, the provisions of this Act, and of subparagraph (1) of the third
paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the
Judiciary Act of 1948. 1 8
xxx xxx xxx
Under the present Constitution, with respect to its provisions on Constitutional
Commissions, it is provided, in part that:
. . . Unless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from receipt of a copy thereof.
19
On the other hand, Regional Trial Courts have exclusive original jurisdiction:
(6) In all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial functions. 2 0
xxx xxx xxx
Likewise:
. . .The Supreme Court may designate certain branches of the Regional
Trial Court to handle exclusively criminal cases, juvenile and domestic relations
cases, agrarian case, urban land reform cases which do not fall under the
jurisdiction of quasi-judicial bodies and agencies and/or such other special
cases as the Supreme Court may determine in the interest of a speedy and
efficient administration of justice. 2 1
xxx xxx xxx
Under our Resolution dated January 11, 1983: 2 2

. . . The appeals to the Intermediate Appellate Court [now, Court of
Appeals] from quasi-judicial bodies shall continue to be governed by the
provisions of Republic Act No. 5434 insofar as the same is not inconsistent with
the provisions of B.P. Blg. 129. 2 3
The pertinent provisions of Republic Act No. 5434 are as follows:
SECTION 1. Appeals from speci ed agencies . — Any provision
of existing law or Rule of Court to the contrary notwithstanding, parties
aggrieved by a nal ruling, award, order, decision, or judgment of the Court
of Agrarian Relations; the Secretary of Labor under Section 7 of Republic Act
Numbered Six hundred and two, also known as the "Minimum Wage Law";
the Department of Labor under Section 23 of Republic Act Numbered Eight
hundred seventy- ve, also known as the "Industrial Peace Act"; the Land
Registration Commission; the Securities and Exchange Commission; the
Social Security Commission; the Civil Aeronautics Board; the Patent O ce
and the Agricultural Inventions Board, may appeal therefrom to the Court of
Appeals, within the period and in the manner herein provided, whether the
appeal involves questions of fact, mixed questions of fact and law, or
questions of law, or all three kinds of questions. From nal judgments or
decisions of the Court of Appeals, the aggrieved party may appeal by
certiorari to the Supreme Court as provided in Rule 45 of the Rules of Court.
24
Because of subsequent amendments, including the abolition of various specials

courts, 2 5 jurisdiction over quasi-judicial bodies has to be, consequently, determined by
the corresponding amendatory statutes. Under the Labor Code, decisions and awards
of the National Labor Relations Commission are nal and executory, but, nevertheless,
"reviewable by this Court through a petition for certiorari and not by way of appeal." 2 6
Under the Property Registration Decree, decisions of the Commission of Land
Registration, en consulta, are appealable to the Court of Appeals. 2 7
The decisions of the Securities and Exchange Commission are likewise
appealable to the Appellate Court, 2 8 and so are decisions of the Social Security
Commission. 2 9
As a rule, where legislation provides for an appeal from decisions of certain
administrative bodies to the Court of Appeals, it means that such bodies are co-equal
with the Regional Trial Courts, in terms of rank and stature, and logically, beyond the
control of the latter. cdrep
As we have observed, the question is whether or not the Presidential Anti-Dollar

Salting Task Force is, in the rst place, a quasi-judicial body, and one whose decisions
may not be challenged before the regular courts, other than the higher tribunals — the
Court of Appeals and this Court.
A quasi-judicial body has been de ned as "an organ of government other than a
court and other than a legislature, which affects the rights of private parties through
either adjudication or rule making." 3 0 The most common types of such bodies have
been listed as follows:
(1) Agencies created to function in situations wherein the
government is offering some gratuity, grant, or special privilege, like the defunct
Philippine Veterans Board, Board on Pensions for Veterans, and NARRA, and
Philippine Veterans Administration.
(2) Agencies set up to function in situations wherein the government
is seeking to carry on certain government functions, like the Bureau of
Immigration, the Bureau of Internal Revenue, the Board of Special Inquiry and
Board of Commissioners, the Civil Service Commission, the Central Bank of the
Philippines.
is performing some business service for the public, like the Bureau of Posts, the
Postal Savings Bank, Metropolitan Waterworks & Sewerage Authority, Philippine
National Railways, the Civil Aeronautics Administration.
is seeking to regulate business affected with public interest, like the Fiber
Inspections Board, the Philippine Patent O ce, O ce of the Insurance
Commissioner.
is seeking under the police power to regulate private business and individuals,
like the Securities & Exchange Commission, Board of Food Inspectors, the Board
of Review for Moving Pictures, and the Professional Regulation Commission.
is seeking to adjust individual controversies because of some strong social
policy involved, such as the National Labor Relations Commission, the Court of
Agrarian Relations, the Regional O ces of the Ministry of Labor, the Social
Security Commission, Bureau of Labor Standards, Women and Minors Bureau.
31
As may be seen, it is the basic function of these bodies to adjudicate claims

and/or to determine rights, and unless its decision are seasonably appealed to the
proper reviewing authorities, the same attain nality and become executory. A perusal
of the Presidential Anti-Dollar Salting Task Force's organic act, Presidential Decree No.
1936, as amended by Presidential Decree No. 2002, convinces the Court that the Task
Force was not meant to exercise quasi-judicial functions, that is, to try and decide
claims and execute its judgments. As the President's arm called upon to combat the
vice of "dollar salting" or the blackmarketing and salting of foreign exchange, 3 2 it is
tasked alone by the Decree to handle the prosecution of such activities, but nothing
more. We quote: LibLex
SECTION 1. Powers of the Presidential Anti-Dollar Salting Task

Force. — The Presidential Anti-Dollar Salting Task Force, hereinafter referred
to as Task Force, shall have the following powers and authority:
a) Motu proprio or upon complaint, to investigate and prosecute
all dollar salting activities, including the overvaluation of imports and the
undervaluation of exports;
b) To administer oaths, summon persons or issue subpoenas
requiring the attendance and testimony of witnesses or the production of
such books, papers, contracts, records, statements of accounts,
agreements, and other as may be necessary in the conduct of
investigation;
c) To appoint or designate experts, consultants, state
prosecutors or scals, investigators and hearing o cers to assist the Task
Force in the discharge of its duties and responsibilities; gather data,
information or documents; conduct hearings, receive evidence, oath oral
and documentary, in all cases involving violation of foreign exchange laws
or regulations; and submit reports containing ndings and
recommendations for consideration of appropriate authorities;
d) To punish direct and indirect contempts with the appropriate
penalties therefor under Rule 71 of the Rules of Court; and To adopt such
measures and take such actions as may be necessary to implement this
Decree.
xxx xxx xxx
"f. After due investigation but prior to the ling of the
appropriate criminal charges with the scal's o ce or the courts as the
case may be, to impose a ne and/or administrative sanctions as the
circumstances warrant, upon any person found committing or to have
committed acts constituting blackmarketing or salting abroad of foreign
exchange, provided said person voluntarily admits the facts and
circumstances constituting the offense and presents proof that the foreign
exchange retained abroad has already been brought into the country.
Thereafter, no further civil or criminal action may be instituted
against said person before any other judicial regulatory or administrative
body for violation of Presidential Decree No. 1883.
The amount of the ne shall be determined by the Chairman of the
Presidential Anti-Dollar Salting Task Force and paid in Pesos taking into
consideration the amount of foreign exchange retained abroad, the
exchange rate differentials, uncollected taxes and duties thereon,
undeclared profits, interest rates and such other relevant factors.
The ne shall be paid to the Task Force which shall retain Twenty
percent (20%) thereof. The informer, if any, shall be entitled to Twenty
percent (20%) of the ne. Should there be no informer, the Task Force shall
be entitle to retain Forty percent (40%) of the ne and the balance shall
accrue to the general funds of the National government. The amount of the
ne to be retained by the Task Force shall form part of its Con dential
Fund and be utilized for the operations of the Task Force." 3 3
The Court sees nothing in the aforequoted provisions (except with respect to the
Task Force's powers to issue search warrants) that will reveal a legislative intendment
to confer it with quasi-judicial responsibilities relative to offenses punished by
Presidential Decree No. 1883. Its undertaking, as we said, is simply, to determine
whether or not probable cause exists to warrant the ling of charges with the proper
court, meaning to say, to conduct an inquiry preliminary to a judicial recourse, and to
recommend action "of appropriate authorities". It is not unlike a scal's o ce that
conducts a preliminary investigation to determine whether or not prima facie evidence
exists to justify haling the respondent to court, and yet, while it makes that
determination, it cannot be said to be acting as a quasi-court. For it is the courts,
ultimately, that pass judgment on the accused, not the fiscal.
It is not unlike the Presidential Commission on Good Government either, the
executive body appointed to investigate and prosecute cases involving "ill-gotten
wealth". It had been vested with enormous powers, like the issuance of writs of
sequestration, freeze orders, and similar processes, but that did not, on account thereof
alone, make it a quasi-judicial entity as de ned by recognized authorities. It cannot
pronounce judgment of the accused's culpability, the jurisdiction to do which is
exclusive upon the Sandiganbayan. 3 4
If the Presidential Anti-Dollar Salting Task Force is not, hence, a quasi-judicial
body, it cannot be said to be co-equal or coordinate with the Regional Trial Court. There
is nothing in its enabling statutes that would demonstrate its standing at par with the
said court.
In that respect, we do not nd error in the respondent Court of Appeal's
resolution sustaining the assumption of jurisdiction by the court a quo.
It will not do to say that the fact that the Presidential Task Force has been
empowered to issue warrants of arrest, search, and seizure, makes it, ergo, a "semi-
court". Precisely, it is the objection interposed by the private respondent, whether or not
it can under the 1973 Charter, issue such kinds of processes. llcd
It must be observed that under the present Constitution, the powers of arrest
and search are exclusive upon judges. 3 5 To that extent, the case has become moot and
academic. Nevertheless, since the question has been speci cally put to the Court, we
nd it unavoidable to resolve it as the nal arbiter of legal controversies, pursuant to
the provisions of the 1973 Constitution during whose regime the case was
commenced.
Since the 1973 Constitution took force and effect and until it was so
unceremoniously discarded in 1986, its provisions conferring the power to issue arrest
and search warrants upon an o cer, other than a judge, by at of legislation have been
at best controversial. In Lim v. Ponce de Leon, 3 6 a 1975 decision, this Court ruled that a
scal has no authority to issue search warrants, but held in the same vein that, by virtue
of the "responsible o cer" clause of the 1973 Bill of Rights, "any lawful o cer
authorized by law can issue a search warrant or warrant of arrest." 3 7 Authorities,
however, have continued to express reservations whether or not scals may, by statute,
be given such a power. 3 8
Less than a year later, we promulgated Collector of Customs v. Villaluz , 39 in
which we categorically averred: "[U]ntil now only the judge can issue the warrant of
arrest." 4 0 "No law or presidential decree has been enacted or promulgated vesting the
same authority in a particular responsible officer." 4 1
Apparently, Villaluzhad settled the debate, but the same question persisted
following this Court's subsequent rulings upholding the President's alleged emergency
arrest powers. 4 2 [Mr. Justice Hugo Gutierrez would hold, however, that a Presidential
Commitment Order (PCO) is (was) not a species of "arrest" in its technical sense, and
that the (deposed) Chief Executive, in issuing one, does not do so in his capacity as a
"responsible o cer" under the 1973 Charter, but rather, as Commander-in-Chief of the
Armed Forces in times of emergency, or in order to carry out the deportation of
undesirable aliens. 4 3 In the distinguished Justice's opinion then, these are acts that can
be done without need of judicial intervention because they are not, precisely, judicial but
Presidential actions.]
I n Ponsica v. Ignalaga , 4 4 however, we held that the mayor has been made a
"responsible o cer" by the Local Government Code, 4 5 but had ceased to be one with
the approval of the 1987 Constitution according judges sole authority to issue arrest
and search warrants. But in the same breath, we did not rule the grant under the Code
unconstitutional based on the provisions of the former Constitution. We were agreed,
though, that the "responsible o cer" referred to by the fundamental law should be one
capable of approximating "the cold neutrality of an impartial judge." 4 6
In striking down Presidential Decree No. 1936 the respondent Court relied on
American jurisprudence, notably, Katz v. United States , 4 7 Johnson v. United States , 4 8
and Coolidge v. New Hampshire , 4 9 in which the American Supreme Court ruled that
prosecutors (like the petitioner) cannot be given such powers because of their
incapacity for a "detached scrutiny" 5 0 of the cases before them. We a rm the
Appellate Court.
We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be a
neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested in
the success of his case. Although his o ce "is to see that justice is done and not
necessarily to secure the conviction of the person accused," 5 1 he stands, invariably, as
the accused's adversary and his accuser. To permit him to issue search warrants and
indeed, warrants of arrest, is to make him both judge and jury in his own right, when he
is neither. That makes, to our mind and to that extent, Presidential Decree No. 1936 as
amended by Presidential Decree No. 2002, unconstitutional. LibLex
It is our ruling, thus, that when the 1973 Constitution spoke of "responsible
o cer" to whom the authority to issue arrest and search warrants may be delegated by
legislation, it did not furnish the legislator with the license to give that authority to
whomsoever it pleased. It is to be noted that the Charter itself makes the quali cation
that the o cer himself must be "responsible". We are not saying, of course, that the
Presidential Anti-Dollar Salting Task Force (or any similar prosecutor) is or has been
irresponsible in discharging its duty. Rather, we take "responsibility", as used by the
Constitution, to mean not only skill and competence but more signi cantly, neutrality
and independence comparable to the impartiality presumed of a judicial o cer. A
prosecutor can in no manner be said to be possessed of the latter qualities.
According to the Court of Appeals, the implied exclusion of prosecutors under
the 1973 Constitution was founded on the requirements of due process, notably, the
assurance to the respondent of an unbiased inquiry of the charges against him prior to
the arrest of his person or seizure of his property. We add that the exclusion is also
demanded by the principle of separation of powers on which our republican structure
rests. Prosecutors exercise essentially an executive function (the petitioner itself is
chaired by the Minister, now Secretary, of Trade and Industry), since under the
Constitution, the President has pledged to execute the laws. 5 2 As such, they cannot be
made to issue judicial processes without unlawfully impinging the prerogative of the
courts.
At any rate, Ponsica v. Ignalaga should foreclose all questions on the matter,
although the Court hopes that this disposition has clari ed a controversy that had
generated often bitter debates and bickerings.
The Court joins the Government in its campaign against the scourge of "dollar-
salting", a pernicious practice that has substantially drained the nation's coffers and has
seriously threatened its economy. We recognize the menace it has posed (and
continues to pose) unto the very stability of the country, the urgency for tough
measures designed to contain if not eradicate it, and foremost, the need for
cooperation from the citizenry in an all-out campaign. But while we support the State's
efforts, we do so not at the expense of fundamental rights and liberties and
constitutional safeguards against arbitrary and unreasonable acts of Government. If in
the event that as a result of this ruling, we prove to be an "obstacle" to the vital
endeavour of stamping out the blackmarketing of valuable foreign exchange, we do not
relish it and certainly, do not mean it. The Constitution simply does not leave us much
choice. cdll
WHEREFORE, the petition is DISMISSED. No costs.

SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
Melencio-Herrera, J., took no part.
Cruz, Feliciano and Cortes, JJ., concur in the result.
Footnotes
1. Herrera, Manuel, J., Camilon and Magsino, JJ., Concurring.
2. Herrera, Manuel, J., Bellosillo and Magsino, JJ., Concurring.

3. Herrera, Manuel, J., Camilon and Magsino, JJ., Concurring.
4. Guadiz, Teofilo, presiding Judge, Branch CXLVII, Makati, Metro Manila.

5. Order, dated April 16, 1985, 1.
6. Id.
7. Id.
8. Id., 2. Reference to "Court" is Regional Trial Court.
9. Id., 9.
10. Decision, dated October 24, 1986, 4-5.
11. Petition, 6.
12. Id., 7-9.

* We decide this case notwithstanding the private respondent's prayer for extension to file a
memorandum. (The Solicitor General has asked that he be excused from ling one). We
do so since the pleadings on le with the Court have su ciently shown the respective
positions of the parties and since only questions of law are involved, questions we can
already resolve without the aid of any more other pleading or proper.
13. Id., 15-16.
14. Id., 16.
15. Dated May 20, 1988.
16. Id., 2-3.
17. Batas Pambansa Blg. 129.
18. Supra, sec. 9, Par. (3).
19. CONST. (1987), art. IX (B), sec. 7.
20. Supra, sec. 19, par. (6).

21. Supra, sec. 23.
22. RESOLUTION OF THE COURT EN BANC, DATED JANUARY 11, 1983, PROVIDING FOR
THE INTERIM OR TRANSITIONAL RULES AND GUIDELINES RELATIVE TO THE
IMPLEMENTATION OF THE JUDICIARY REORGANIZATION ACT OF 1981 (B.P. BLG.
129).
23. Supra, par. 22, subpar. (c).

24. Rep. Act No. 5434, sec. 1.
25. The Court of Agrarian Relations for instance, was abolished by Batas Blg. 129, sec. 44.
The Labor Code, sec. 298, on the other hand, abolished the Court of Industrial Relations.
26. Asiaworld Publishing House, Inc. v. Ople, No. L-56398, July 23, 1987, 152 SCRA 219,
225.
27. Pres. Decree No. 1529, sec. 117; Rep. Act No. 5434, sec. 1, supra.
28. Batas Blg. 129, supra, sec. 9(3), amending Pres. Decree No. 902-A, sec. 6.
29. Supra.
30. GONZALES, ADMINISTRATIVE LAW, A TEXT 13 (1979).
31. Id., 14-15.

32. See Pres. Decree No. 1883 as amended by Pres. Decree No. 2002.
33. Pres. Decree No. 1936, sec. 1; Pres. Decree No. 2002, supra, sec. 2; emphasis in original.
34. Presidential Commission on Good Government v. Peña, G.R. No. 77663, April 12, 1988;
Feliciano, J., Concurring with qualifications. While the Regional Trial Courts may not take
cognizance of cases involving the Commission, this is so because the various Executive
Orders creating it speci cally invested the Sandiganbayan of the jurisdiction, and not
because it is co-equal with the said courts.
35. CONST. (1987), art. III, sec. 2.
36. No. L-22554, August 29, 1975, 66 SCRA 299.

37. Supra, 306, fn. 7; emphasis supplied.
38. BERNAS, THE 1973 PHILIPPINE CONSTITUTION A REVIEWER-PRIMER 37 (1981).
39. Nos. L-34038, 34243, 36376, 38688, 39525, 40031, June 18, 1976, 71 SCRA 356.
40. Supra, 380.
41. Supra.
42. See Cruz v. Gatan, No. L-44910, November 29, 1976, 74 SCRA 226 in which the Court
sustained the Arrest, Search, and Seizure Order (ASSO) under General Order No. 2-A;
Garcia-Padilla v. Enrile, No. L-61388, April 20, 1983, 121 SCRA 472 and Morales, Jr. v.
Enrile, Nos. L-61016-7, April 26, 1983, 121 SCRA 538, in which we held valid Presidential
Commitment Order(s) (PCOs) pursuant to Letters of Instructions Nos. 1125-A and 1211;
and Garcia-Padilla v. Enrile, No. L-61388, July 19, 1985, 137 SCRA 647, in which we
recognized the validity of Presidential Detention Action(s) (PDAs) per Presidential Decree
Nos. 1877 and 1877-A.
43. Morales, Jr. v. Enrile, supra, 604, Gutierrez, Jr., J., Concurring.
44. No. L-72301, July 31, 1987, 152 SCRA 647.

45. Batas Pambansa Blg. 337, sec. 143, pars. (1), (3).
46. Ponsica v. Ignalaga, supra, 662.
47. 389 US 347 (1967).

48. 333 US 10 (1948).
49. 403 US 433 (1971).

50. Resolution, dated September 24, 1987, id., 2.
51. Crespo v. Mogul, No. L-53373, June 30, 1987, 151 SCRA 462, 470.
52. CONST. (1987), art. VII, sec. 5.

EN BANC
[G.R. No. 57883. March 12, 1982.]
GUALBERTO J. DE LA LLANA, Presiding Judge, Branch II of the City

Court of Olongapo, ESTANISLAO L. CESA, JR., FIDELA Y. VARGAS,
BENJAMIN C. ESCOLANGO, JUANITO C. ATIENZA, MANUEL REYES
ROSAPAPAN, JR., VIRGILIO E. ACIERTO, and PORFIRIO AGUILLON
AGUILA , petitioners, vs . MANUEL ALBA, Minister of Budget,
FRANCISCO TANTUITCO, Chairman, Commission on Audit, and
RICARDO PUNO, Minister of Justice , respondents.
Fidela Vargas, Leonardo S. Gonzales and Raul Gonzales for petitioners.

Solicitor General Estelito Mendoza and Assistant Solicitor General Reynato S. Puno for
respondents.
SYNOPSIS
Petitioners assailed the constitutionality of Batas Pambansa Blg. 129 entitled "An Act
Reorganizing the Judiciary, Appropriating Funds Therefore and for other Purposes," the
same being contrary to the security of tenure provision of the Constitution as it separates
from the judiciary Justices and judges of inferior courts from the Court of Appeals to
municipal circuit courts except the occupants of the Sandiganbayan and the Court of Tax
Appeals, unless appointed to the inferior courts established by such Act. They likewise
impute lack of good faith in its enactment and characterize as undue delegation of
legislative power to the President his authority to fix the compensation and allowances of
the Justices and judges thereafter appointed and the determination of the date when the
reorganization shall be deemed completed. The Solicitor General maintains that there is no
valid justification for the attack on the constitutionality of the statute, it being a legitimate
exercise of the power vested in the Batasang Pambansa to reorganize the judiciary, the
allegations of absence of good faith as well as the attack on the independence of the
judiciary being unwarranted and devoid of any support in law.
After an intensive and rigorous study of all the legal aspects of the case, the
Supreme Court dismissed the petition, the unconstitutionality of Batas Pambansa Blg.
129 not having been shown. It held that the enactment thereof was in answer to a
pressing and urgent need for a major reorganization of the judiciary; that the attendant
abolition of the inferior courts which shall cause their incumbents to cease from
holding o ce does not impair the independence of the judiciary and the security of
tenure guarantee as incumbent justices and judges with good performance and clean
records can be named anew in legal contemplation without interruption in the continuity
of their service; that the provision granting the President authority to x the
compensation and allowances of the Justices and judges survives the test of undue
delegation of legislative power, a standard having been clearly adopted therefor; that
the reorganization provided by the challenged Act will be carried out in accordance with
the President's constitutional duty to take care that the laws be faithfully executed, and
CD Technologies Asia, Inc. 2017 cdasiaonline.com
the judiciary's commitment to guard constitutional rights.
The petition was dismissed. Associate Justice Claudio Teehankee dissented in a
separate opinion; Justices Felix V. Makasiar and Venicio Escolin concurred with the
main opinion; Justice Hermogenes Concepcion concurred in the result; Justices
Antonio P. Barredo, Ramon C. Aquino, Ramon C. Fernandez, Juvenal K Guerrero,
Ameur na Melencio-Herrera and Vicente G. Ericta concurred in separate opinions;
Justices Vicente Abad-Santos and Efren I. Plana submitted separate concurring and
dissenting opinions.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; PARTIES; CAPACITY TO SUE;

PETITIONERS' LEGAL STANDING DEMONSTRATED. — The argument as to the lack of
standing of petitioners is easily resolved. As far as Judge de Ia Llana is concerned, he
certainly falls within the principle set forth in Justice Laurel's opinion in People vs. Vera, 65
Phil. 56 (1937). Thus: "The unchallenged rule is that the person who impugns the validity of
a statute must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement." The other petitioners
as members of the bar and officers of the court cannot be considered as devoid of "any
personal and substantial interest" on the matter. There is relevance to this excerpt from a
separate opinion in Aquino, Jr. v. Commission on Elections, L-40004, Jan. 31, 1975; "Then
there is the attack on the standing of petitioners, as vindicating at most what they consider
a public right and not protecting their rights as individuals. This is to conjure the specter of
the public right dogma at an inhibition to parties intent on keeping public officials staying
on the path of constitutionalism. As was so well put by Jaffe: `The protection of private
right is an essential constituent of public interest and, conversely, without a well-ordered
state there could be no enforcement of private rights. Private and public interests are, both
in a substantive and procedural sense, aspects of the totality of the legal order.' Moreover,
petitioners have convincingly shown that in their capacity as taxpayers, their standing to
sue has been amply demonstrated.
2. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION ACT OF 1980;
ENACTMENT THEREOF IN ANSWER TO A PRESSING AND URGENT NEED; GOOD FAITH
OBSERVED IN ITS ENACTMENT. — The enactment of Batas Pambansa Blg. 129 would
firstly, result in the attainment "of more efficiency in the disposal of cases. Secondly, the
improvement in the quality of justice dispensed by the courts is expected as a necessary
consequence of the easing of the court's dockets. Thirdly, the structural changes
introduced in the bill, together with the reallocation of jurisdiction and the revision of the
rules of procedure, are designated to suit the court system to the exigencies of the
present day Philippine society, and hopefully, of the foreseeable future." It may be
observed that the volume containing the minutes of the proceedings of the Batasang
Pambansa show that 590 pages were devoted to its discussion. It is quite obvious that it
took considerable time and effort as well as exhaustive study before the act was signed by
the President on August 14, 1981. With such a background, it become quite manifest how
lacking in factual basis is the allegation that its enactment is tainted by the vice of
arbitrariness. What appears undoubted and undeniable is the good faith that characterized
its enactment from its inception to the affixing of the Presidential signature. cdasia
3. ID.; ID.; ID.; RESULTING ABOLITION OF COURTS IN GOOD FAITH, WITH DUE
RECOGNITION OF THE SECURITY OF TENURE GUARANTEE; VALIDITY OF ABOLITION OF
AN OFFICE, SETTLED RULE. — Nothing is better settled in our law than that the abolition of
an office within the competence of a legitimate body if done in good faith suffers from no
infirmity. The ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr., L-28573, June 13,
1968, reiterated such a doctrine: "We find this point urged by respondents, to be without
merit. No removal or separation of petitioners from the service is here involved, but the
validity of the abolition of their offices. This is a legal issue that is for the Courts to decide.
It is well-known rule also that valid abolition of offices is neither removal nor separation of
the incumbents. . . . And, of course, if the abolition is void, the incumbent is deemed never
to have ceased to hold office. The preliminary question laid at rest, we pass to the merits
of the case. As well-settled as the rule that the abolition of an office does not amount to an
illegal removal of its incumbent is the principle that, in order to be valid, the abolition must
be made in good faith." The above excerpt was quoted with approval in Bendanillo, Sr. vs.
Provincial Governor, L-28614, Jan. 17, 1974, two earlier cases enunciating a similar
doctrine having preceded it. As with the offices in the other branches of the government,
so it is with the Judiciary. The test remains whether the abolition is in good faith. As that
element is conspicuously present in the enactment of Batas Pambansa Blg. 129, then the
lack of merit of this petition becomes even more apparent.
4 . ID.; ID; ID.; ENACTMENT THEREOF MAINTAINS UNIMPAIRED THE
INDEPENDENCE OF THE JUDICIARY; TERMINATION BY VIRTUE OF THE ABOLITION OF
THE OFFICE DOES NOT IMPAIR SECURITY OF TENURE; SUPREME COURT TO BE
CONSULTED IN THE IMPLEMENTATION OF THE REORGANIZATION OF THE
JUDICIARY. — Petitioners contend that the abolition of the existing Inferior Courts
collides with the security of tenure enjoyed by incumbent Justices and judges under
Article X, Section 7 of the Constitution. There was a similar provision the 1935
Constitution. It did not, however, go as far as conferring on this Tribunal the power to
supervise administratively inferior courts. Moreover, this Court is empowered "to
discipline judges of inferior courts and, by a vote of at least eight members, order their
dismissal. "Thus it possesses the competence to remove judges. Under the Judiciary
Act, it was the President who was vested with such power. Removal is, of course, to be,
distinguished from termination by virtue of the abolition of the o ce. After the
abolition, there is in law no occupant. In case of removal, there is an o ce with an
occupant who would thereby lose his position. It is in that sense that from the stand-
point of strict law, the question of any impairment of security of tenure does not arise.
Nonetheless, for the incumbents of 'Inferior Courts abolished, the effect is one of
separation. As to its effect, no distinction exists between removal and the abolition of
the o ce. Realistically, it is devoid of signi cance. He ceases to be a member of the
Judiciary. In the implementation of the assailed legislation, therefore, it would be in
accordance with accepted principles of constitutional construction that as far as
incumbent justices and judges are concerned, this Court be consulted and that its view
be accorded, the fullest consideration. No fear need be entertained that there is a
failure to accord respect to the basic principle that this Court does not render advisory
opinions. No question of law is involved. If such were the case, certainly this Court
could not have its say prior to the action taken by either of the two departments. Even
then, it could do so but only by way of deciding a case where the matter has been put in
issue. Neither is there any intrusion into who shall be appointed to the vacant positions
created by the reorganization. That remains in the hands of the Executive to whom it
properly belongs. There is no departure therefore from the tried and tested ways of
judicial power. Rather what is sought to be achieved by this liberal interpretation is to
preclude any plausibility to the charge that in the exercise of the conceded power of
reorganizing the Inferior Courts, the power of removal of the present incumbents
vested in this Tribunal is ignored or disregarded. The challenged Act would thus be free
from any unconstitutional taint, even one not readily discernible except to those
predisposed to view it with distrust. Moreover, such a construction would be in
accordance with the basic principle that in the choice of alternatives between one
which would save and another which would invalidate a statute, the former is to be
preferred. There is an obvious way to do so. The principle that the Constitution enters
into and forms part of every act to avoid any unconstitutional taint must be applied.
5. ID.; ID.; ID.; AUTHORITY OF THE PRESIDENT TO FIX THE COMPENSATION AND
ALLOWANCES OF JUSTICES AND JUDGES NOT AN UNDUE DELEGATION OF LEGISLATIVE
POWER; EXISTENCE OF A STANDARD TO AVOID THE TAINT OF UNDUE DELEGATION
CLEAR. — Petitioners would characterize as an undue delegation of legislative power to the
President the grant of authority to fix the compensation and the allowances of the Justices
and judges thereafter appointed. A more careful reading of the challenged Batas
Pambansa Blg. 129 ought to have cautioned them against raising such an issue. The
language of the statute is quite clear. The questioned provision reads as follows:
"Intermediate Appellate Justices, Regional Trial Judges, Metropolitan Trial Judges,
Municipal Trial Judges, and Municipal Circuit Trial Judges shall receive such compensation
and allowances as may be authorized by the President along the guidelines set forth in
Letter of Implementation No. 93 pursuant to Presidential Decree No. 985, as amended by
Presidential Decree No. 1597." (Chapter IV, Sec. 41 of Batas Pambansa Blg. 129) The
existence of a standard is thus clear. The basic postulate that underlies the doctrine of
non-delegation is that it is the legislative body which is entrusted with the competence to
make laws and to alter and repeal them, the test being the completeness of the statute in
all its terms and provisions when enacted. As pointed out in Edu v. Ericta, L-32096, Oct. 24,
1970, "To avoid the taint of unlawful delegation, there must be a standard, which implies at
the very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to repeal. A
standard thus de nes legislative policy, marks its limits, maps out its boundaries and
speci es the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. It is the criterion by which legislative purpose may
be carried out. Thereafter, the executive or administrative o ce designated may in
pursuance of the above guidelines promulgate supplemental rules and regulations. The
standard may be either express or implied. If the former, the non-delegation objection is
easily met. The standard though does not have to be spelled out speci cally. It could be
implied from the policy and purpose of the act considered as a whole."
6. ID.; ID.; ID.; NO AMBIGUITY EXISTS IN THE EXECUTION OF THE REORGANIZATION
LAW. — Another objection based on the absence in the statute of what petitioners refer to
as a "de nite time frame limitation" is equally bereft of merit. They ignore the categorical
language of this provision: "The Supreme Court shall submit to the President, within thirty
(30) days from the date of the effectivity of this Act, a sta ng pattern for all courts
constituted pursuant to this Act which shall be the basis of the implementing order to be
issued by the President in accordance with the immediately succeeding section." (Sec. 43,
Batas Pambansa Blg. 129) The rst sentence of the next Section is even more categorical:
"The provisions of this Act shall be immediately carried out in accordance with an
Executive Order to be issued by the President." (Sec. 44, Batas Pambansa Blg. 129)
Certainly petitioners cannot be heard to argue that the President is insensible to his
constitutional duty to take care that the laws be faithfully executed. In the meanwhile, the
existing Inferior Courts affected continue functioning as before, "until the completion of
the reorganization provided in this Act as declared by the President. Upon such
declaration, the said courts shall be deemed automatically abolished and the incumbents
thereof shall cease to hold o ce. "There is no ambiguity. The incumbents of the courts
thus automatically abolished "shall cease to hold o ce." No fear need be entertained by
incumbents whose length of service, quality of performance, and clean record justify their
being named anew, in legal contemplation without any interruption in the continuity of their
service. It is equally reasonable to assume that from the ranks of lawyers, either in the
government service, private practice, or law professors will come the new appointees. In
the event that in certain cases a little more time is necessary in the appraisal of whether or
not certain incumbents deserve reappointment, it is not from their standpoint undesirable.
Rather, it would be a rea rmation of the good faith that will characterize its
implementation by the Executive. There is pertinence to this observation of Justice
Holmes that even acceptance of the generalization that courts ordinarily should not supply
omissions in a law, a generalization quali ed as earlier shown by the principle that to save
a statute that could be done, "there is no canon against using common sense in construing
laws as saying what they obviously mean." (Cf, Roschen v. Ward, 279 US 337, 339 [1929])
LLjur
7. ID.; ID.; ID.; PARTICIPATION OF SEVERAL JUSTICES IN THE PREPARATION OF AN

ALTERNATIVE PLAN FOR REORGANIZATION NOT OBJECTIONABLE; SUPREME COURT
DIRECTLY INVOLVED WITH JUDICIAL REFORM. — On the morning of the hearing of the
petition, petitioners sought to disqualify the Chief Justice and Associate Justices Ramon
Aquino and Ameur na Melencio-Herrera because the rst named was the Chairman and
the other two, members of the Committee on Judicial Reorganization. The motion was
denied. It was made clear then and there that not one of the three members of the Court
had any hand in the framing or in the discussion of Batas Pambansa Blg. 129. They were
not consulted. They did not testify. The challenged legislation is entirely the product of the
efforts of the legislative body. Their work was limited, as set forth in the Executive Order,
to submitting alternative plan for reorganization. That is more in the nature of scholarly
studies. Ever since 1973, this Tribunal has had administrative supervision over inferior
courts. It has had the opportunity to inform itself as to the way judicial business is
conducted and how it may be improved. Even prior to the 1973 Constitution, either the
then Chairman or members of the Committee on Justice of the then Senate of the
Philippines consulted members of the Court in drafting proposed legislation affecting the
judiciary. It is not inappropriate to cite this excerpt from an article in the 1975 Supreme
Court Review: "In the Twentieth century the Chief Justice of the United States has played a
leading part in judicial reform. A variety of conditions have been responsible for the
development of this role, and foremost among them has been the creation of explicit
institutional structures designed to facilitate reform." Also: "Thus the Chief Justice cannot
avoid exposure to and direct involvement in judicial reform at the federal level and, to the
extent issues of judicial federalism arise, at the state level as well." (Fish, William Howard
Taft and Charles Evan Hughes, 1975 Supreme Court Review 123)
8. ID.; ID.; ID.; GUARANTEE OF JUDICIAL INDEPENDENCE OBSERVED. — It is a cardinal
article of faith of our constitutional regime that it is the people who are endowed with
rights, to secure which a government is instituted. Acting as it does through public
o cials, it has to grant them either expressly or impliedly certain powers. Those they
exercise not for their own bene t but for the body politic. The Constitution does not speak
in the language of ambiguity: "A public office is a public trust." (Art. XIII, Sec. I) That is more
than a moral adjuration. It is a legal imperative. The law may vest in a public o cial certain
rights. It does so to enable them to perform his functions and ful ll his responsibilities
more e ciently. It is from that standpoint that the security of tenure provision to assure
judicial independence is to be viewed. It is an added guarantee that justices and judges
can administer justice undeterred by any fear of reprisal or untoward consequence. Their
judgments then are even more likely to be inspired solely by their knowledge of the law and
the dictates of their conscience, free from the corrupting in uence of base or unworthy
motives. The independence of which they are assured is impressed with a signi cance
transcending that of a purely personal right. As thus viewed, it is not solely for their
welfare. The challenged legislation was thus subjected to the most rigorous scrutiny by
this Tribunal, lest by lack of due care and circumspection, it allows the erosion of that ideal
so firmly embedded in the national consciousness.
9. ID.; ID.; ID.; ID.; JUDICIAL INDEPENDENCE PRESERVED DESPITE THE
REORGANIZATION OF INFERIOR COURTS. — At emphasized by former Chief Justice Paras
in Ocampo vs. Secretary of Justice, 57 O.G. 147(1955) "there is no surer guarantee of
judicial independence than the God-given character and tness of those appointed to the
Bench. The judges may be guaranteed a xed tenure of o ce during good behaviour, but if
they are of such stuff as allows them to be subservient to one administration after another,
or to cater to the wishes of one litigant after another, the independence of the Judiciary will
be nothing more than a myth or any empty ideal. Our judges, we are con dent, can be of
the type of Lord Coke, regardless or in spite of the power of Congress — we do not say
unlimited but as herein exercised — to reorganize inferior courts."
10. ID.; ID.; ID.; UPHOLDING THE CONSTITUTIONALITY THEREOF WILL NOT RESULT IN
DELETERIOUS CONSEQUENCES TO THE ADMINISTRATION OF JUSTICE. — There is no
reason to assume that the failure of this suit to annul Batas Pambansa Blg. 129 would be
attended with deleterious consequences to the administration of justice. It does not follow
that the abolition In good faith of the existing inferior courts except the Sandiganbayan and
the Court of Tax Appeals and the creation of new ones will result in a judiciary unable or
unwilling to discharge with independence its solemn duty or one recreant to the trust
reposed in it. Nor should there be any fear that less than good faith will attend the exercise
of the appointing power vested in the Executive. It cannot be denied that an independent
and e cient Judiciary is something to the credit of any administration. Well and truly has it
been said that the fundamental principle of separation of powers assumes, and justi ably
so, that the three departments are as one in their determination to pursue the ideals and
aspirations and to ful ll the hopes of the sovereign people as expressed in the
Constitution. Justice Malcolm in Manila Electric Co. v. Pasay Transportation Company, 57
Phil. 600 (1932) said: "Just as the Supreme Court, as the guardian of constitutional rights,
should not sanction usurpations by any other department of the government, so should it
as strictly con ne its own sphere of in uence to the powers expressly or by implication
conferred on it by the Organic Act." To that basic postulate underlying our constitutional
system, this Court remains committed.
BARREDO, J ., concurring :
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION ACT OF 1980
(BATAS PAMBANSA BLG. 129); JUDICIAL REORGANIZATION NOT CONTRARY TO THE
INDEPENDENCE OF THE JUDICIARY PRINCIPLE. — It being conceded that the power to
create or establish carries with it the power to abolish, and it is a legal axiom, or at least a
pragmatic reality, that the tenure of the holder of an o ce must of necessity end when his
o ce no longer exists, We have no alternative than to hold that petitioners' invocation of
the independence-of-the-judiciary principle of the Constitution is unavailing in the cases at
bar. To insist that what Batas Pambansa 129 is doing is just a renaming, and not a
substantial and actual modi cation or alteration of the present judicial structure or
system, assuming a close scrutiny might somehow support such a conclusion, is pure
wishful thinking, it being explicitly and unequivocally provided in the Section in question
that said courts "are deemed abolished" and further, as if to make it most unmistakably
emphatic, that "incumbents thereof shall cease to hold office." Dura lex, sed lex.
2. ID.; ID.; ID.; JUDICIAL REORGANIZATION, AN URGENT NEED; TWO-FOLD
OBJECTIVES OF THE LAW ALIGNED WITH THE FOUNDATION OF THE PRINCIPLE OF
INDEPENDENCE OF THe JUDICIARY. — Judicial reorganization becomes urgent and
inevitable not alone because of structural inadequacies of the system or of the
cumbersomeness and technicality-peppered and dragging procedural rules in force, but
also when it becomes evident that a good number of those occupying positions in the
judiciary, make a mockery of justice and take advantage of their o ce for sel sh personal
ends and yet, those in authority cannot expeditiously cope with the situation under existing
laws and rules. It is my personal assessment of the present situation in our judiciary that
its reorganization has to be of necessity two-pronged, for the most ideal judicial system
with the most perfect procedural rules cannot satisfy the people and the interests of
justice unless the men who hold positions therein possess the character, competence and
sense of loyalty that can guarantee their devotion to duty and absolute impartiality, nay,
impregnability to all temptations of graft and corruption, including the usual importunings
and the fearsome albeit improper pressures of the powers that be. I am certain that
Filipino people feel happy that Batas Pambansa 129 encompasses both of these
objectives which indeed are aligned with the foundation of the principle of independence
of the judiciary. LLphil
3. ID.; CONSTITUTION; CHARTER TIMELESS EXCEPT FOR ADOPTION OF MEASURES

DURING VERY UNUSUAL INSTANCES; INTEGRITY OF THE FUNDAMENTAL LAW
UNDIMINISHED THEREBY. — The Constitution is not just a cluster of high sounding
verbiages spelling purely idealism and nobility in the recognition of human dignity,
protection of individual liberties and providing security and promotion of the general
welfare under a government of laws. The fundamental law of the land is a living instrument
which translates and adapts itself to the demands of obtaining circumstances. It is written
for all seasons, except for very unusual instances that human ratiocination cannot justify to
be contemplated by its language even if read in its broadest sense and in the most liberal
way. Verily, it is paramount and supreme in peace and in war, but even in peace grave
critical situations arise demanding recourse to extraordinary solutions. Paraphrasing the
Spanish adage, "Grandes males, grandes remedios," such inordinary problems justify
exceptional remedies. And so, history records that in the face of grave crises and
emergencies, the most constitutionally idealistic countries have, at one time or another,
under the pressure of pragmatic considerations, adopted corresponding realistic
measures, which perilously tether along the periphery of their Charters, to the extent of
creating impressions, of course erroneous, that the same had been transgressed, although
in truth their integrity and imperiousness remained undiminished and unimpaired.
4. ID.; JUDICIARY; JUDICIAL REORGANIZATION; BATAS PAMBANSA BLG. 129
CONSTITUTIONALLY PERMISSIBLE FOR THE ATTAINMENT OF THE OBJECTS IT SEEKS
TO PURSUE. — If indeed there could be some doubt as to the correctness of this Court's
judgment that Batas Pambansa 129 is not unconstitutional, particularly its Sec. 44, I am
convinced that the critical situation of our judiciary today calls for solutions that may not in
the eyes of some conform strictly with the letter of the Constitution but indubitably
justi ed by its spirit and intent. The Charter is not just a construction of words to whose
literal ironclad meanings we must feel hidebound, without regard to every Constitution's
desirable inherent nature of adjustability and adaptability to prevailing situations so that
the spirit and fundamental intent and objectives of the framers may remain alive. Batas
Pambansa 129 is one such adaptation that comes handy for the attainment of the
transcendental objectives it seeks to pursue. While, to be sure, it has the effect of factually
easing out some justices and judges before the end of their respective constitutional
tenure sans the usual administrative investigation, the desirable end is achieved thru
means that, in the light of the prevailing conditions, is constitutionally permissible.
5. ID.; ID.; ID.; BATAS PAMBANSA 129 DOES NOT RENDER MEANINGLESS THE
INDEPENDENCE OF THE JUDICIARY; ABOLITION OF EXISTING COURTS ALLOWED BY THE
CONSTITUTION. — Notwithstanding this decision, the independence of the judiciary in the
Philippines is far from being insubstantial, much less meaningless and dead. Batas
Pambansa 129 has precisely opened our eyes to how, despite doubts and misgivings, the
Constitution can be so construed as to make it possible for those in authority to answer
the clamor of the people for an upright judiciary and overcome constitutional roadblocks
more apparent than real. LibLex
6. ID.; ID.; ID.; PRESIDENTIAL APPOINTEES TO THE BENCH WILL BE CAREFULLY

CONSIDERED. — By this decision, the Court has in factual effect albeit not in constitutional
conception yielded generally to the Batasang Pambansa, and more speci cally to the
President, its own constitutionally conferred power of removal of judges. Section 44 of the
Batasan Act declares that all of them shall be deemed to have ceased to hold o ce,
leaving it to the President to appoint those whom he may see t to occupy the new courts.
Thus, those who will not be appointed can be considered as "ceasing to hold their
respective o ces," or, as others would say they would be in fact removed. How the
President will make his choice is beyond Our power to control. But even if some may be
eased out even without being duly informed of the reason therefor, much less being given
the opportunity to be heard, the past actuations of the President on all matters of deep
public interest should serve as su cient assurance that when he ultimately acts, he will
faithfully adhere to his solemn oath "to do justice to every man," hence, he will equip
himself first with the fullest reliable information before he acts.
AQUINO, J ., concurring :
1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; DECLARATORY RELIEF AND
PROHIBITION NOT THE PROPER REMEDY TO TEST THE CONSTITUTIONALITY OF A LAW;
NO JUSTICIABLE CONTROVERSY IN CASE AT BAR. — The petition should have been
dismissed outright because this Court has no jurisdiction to grant declaratory relief and
prohibition is not the proper remedy to test the constitutionality of the law. The petition is
premature. No jurisdictional question is involved. There is no justiciable controversy
wherein the constitutionality of the law is in issue. It is presumed to be constitutional. The
lawmaking body before enacting it looked into the constitutional angle.
2. ID.; ID.; ID.; PARTIES; PETITIONERS WITHOUT PERSONALITY TO ASSAIL THE
CONSTITUTIONALITY OF THE JUDICIARY REORGANIZATION LAW. — Seven of the eight
petitioners are practising lawyers. They have no personality to assail the constitutionality
of the law even as taxpayers. The eighth petitioner, Gualberto J. de la Llana, a city judge,
has no cause of action for prohibition. He is not being removed from his position.
3. CONSTITUTIONAL LAW; JUDICIARY; JUDICIAL REORGANIZATION; BATAS
PAMBANSA BLG. 129; ENACTMENT THEREOF IN GOOD FAITH. — The Judiciary
Reorganization Law was enacted in utmost good faith and not "to cloak an
unconstitutional and evil purpose." In enacting the said law, the lawmaking body acted
within the scope of its constitutional powers and prerogatives.
GUERRERO, J ., concurring :
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION ACT OF 1980;
OBJECTIVES. — The institutional reforms and changes envisioned by the law are clearly
conducive to the promotion of national interests. The objectives of the legislation, namely:
(a) An institutional restructuring by the creation of an Intermediate Appellate Court,
thirteen (13) Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts; (b) A re-apportionment of jurisdiction geared towards
greater e ciency; (c) A simpli cation of procedures; and (d) The abolition of the inferior
courts created by the Judiciary Act of 1948 and other statutes, as approved by the
Congress of the Philippines are undoubtedly intended to improve the regime of justice and
thereby enhance public good and order. Indeed, the purpose of the Act as further stated in
the Explanatory Note, which is "to embody reforms in the structure, organization and
composition of the Judiciary, with the aim of improving the administration of justice, of
decongesting judicial dockets, and coping with the more complex problems on the
present and foreseeable future" cannot but "promote the welfare of society, since that is
the final cause of law." (Cardozo, the Nature of the Judicial Process, p. 66)
2. ID.; ID.; ID.; LAW CONSTITUTIONAL FROM THE STANDPOINT OF GENERAL UTILITY
AND FUNCTIONAL VALUE. — From the standpoint of the general utility and functional value
of the Judiciary Reorganization Act, there should be no di culty, doubt or disbelief in its
legality and constitutionality. That there are ills and evils plaguing the judicial system is
undeniable. The notorious and scandalous congestion of court dockets is too well-known
to be ignored as are the causes which create and produce such anomaly. Evident is the
need to look for devices and measures that are more practical, workable and economical.
3. ID.; ID.; ID.; ENACTMENT THEREOF PRESUMED REGULAR AND DONE IN GOOD
FAITH. — In the light of the known evils and in rmities of the judicial system, it would be
absurd and unreasonable to claim that the legislators did not act upon them in good faith
and honesty of purpose and with legitimate ends. It is presumed that official duty has been
regularly performed. The presumption of regularity is not con ned to the acts of the
individual o cers but also applies to the acts of boards, such as administrative board or
bodies, and to acts of legislative bodies. Good faith is always to be presumed in the
absence of proof to the contrary, of which there is none in the case at bar. It could not be
otherwise if We are to accord as We must, full faith and credit to the lawmakers' deep
sense of public service and the judicious exercise of their high o ce as the duly-elected
representatives of the people.
4. ID.; ID.; ID.; ID.; RESULTANT ABOLITION OF COURTS; SUPREME COURT CANNOT
INQUIRE INTO THE WISDOM OF THE LAW. — In Morfe vs. Mutuc, L-20387, Jan. 31, 1968,
the Supreme Court held: "It is not the province of the courts to supervise legislation and
keep it within the bounds of propriety and common sense. That is primarily and exclusively
a legislative concern. The Courts are not supposed to override legitimate policy and . . .
never inquire into the wisdom of the law." Chief Justice Fernando who penned the Morfe
decision writes in The Constitution of the Philippines that while "(i)t is thus settled, to
paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only
congressional power or competence, not the wisdom of action taken, may be the basis for
declaring a statute invalid," he adds that it is "useful to recall what was so clearly stated by
Laurel that 'the Judiciary in the determination of actual cases and controversies must
re ect the wisdom and justice of the people as expressed through their representatives in
the executive and legislative departments of the government.'" In any case, petitioners have
not shown an iota of proof of bad faith. There is no factual foundation of bad faith on
record. I do not consider the statement in the sponsorship speech for Cabinet Bill No. 42
of Minister of Justice Ricardo J. Puno that the Bill would be a more e cient vehicle of
"eliminating incompetent and un t Judges" as indicative of impermissible legislative
motive.
5. ID.; ID.; ID.; SECURITY OF TENURE; NATURE AND CONCEPT OF A PUBLIC OFFICE. —
The Justices and judges directly affected by the law, being lawyers, should know or are
expected to know the nature and concept of a public o ce. It is created for the purpose of
effecting the ends for which government has been instituted, which are for the common
good, and not the pro t, honor or private interest of any one man, family or class of men. In
our form of government, it is fundamental that public o ces are public trust, and that the
person to be appointed should be selected solely with a view to the public welfare. In the
last analysis, a public office is a privilege in the gift of the State.
6. ID.; ID.; ID.; ID.; ID.; NO VESTED INTEREST EXISTS IN AN OFFICE; JUDICIAL
APPOINTMENT TERMINATES WITH THE ABOLITION OF THE COURT. — There is no such
thing as a vested interest or an estate in an o ce, or even an absolute right to hold o ce.
Excepting constitutional o ces which provide for special immunity as regards salary and
tenure, no one can be said to have any vested right in an o ce or its salary. When an o ce
is created by the Constitution, it cannot be abolished by the legislature, but when created
by the State under the authority of the Constitution, it may be abolished by statute and the
incumbent deprived of his o ce. Acceptance of a judicial appointment must be deemed
as adherence to the rule that "when the court is abolished, any unexpired term is abolished
also. The Judge of such a court takes o ce with that encumbrance and knowledge. The
Judge's right to his full term and his full salary are not dependent alone upon his good
conduct, but also upon the contingency that the legislature may for the public good, in
ordaining and establishing the courts, from time to time consider his o ce unnecessary
and abolish it.
7. ID.; ID.; ID.; REMOVAL AND RE-APPOINTMENT OF JUDGES UNDER THE JUDICIARY
REORGANIZATION ACT, A PRESIDENTIAL POWER AND PREROGATIVE. — The removal
from o ce of an incumbent is merely incidental to the valid act of abolition of the o ce as
demanded by the superior and paramount interest of the people. The bad and the crooked
judges must be removed. The good and the straight, sober judges should be reappointed
but that is the sole power and prerogative of the President who, I am certain, will act
according to the best interest of the nation and in accordance with his solemn oath of
o ce "to preserve and defend its Constitution, execute its laws, do justice to everyone."
There and then the proper balance between the desire to preserve private interest and the
desideratum of promoting the public good shall have been struck. cdtai
8. ID.; ID.; ID.; CONSTRUCTION IN FAVOR OF THE CONSTITUTIONALITY OF THE LAW

TO BE ADOPTED. — The Supreme Court has been called the conscience of the
Constitution. It may be the last bulwark of constitutional government. It must, however, be
remembered "that legislatures are ultimate guardians of the liberties and welfare of the
people in quite as great a degree as courts." (Missouri, K. & T. Co. vs. May, 194 U.S. 267,
270) The responsibility of upholding the Constitution rests not on the courts alone but on
the legislatures as well. It adheres, therefore, to the well-settled principle that "all
reasonable doubts should be resolved in favor of the constitutionality of a statute" for
which reason it will not set aside a law as violative of the Constitution "except in a clear
case." (People vs. Vera [1937], 65 Phil. 56).
9. ID.; ID.; ID.; SOCIAL JUSTIFICATION AND THE FUNCTIONAL UTILITY OF THE LAW
SUFFICIENT TO UPHOLD ITS CONSTITUTIONALITY. — I view the controversy presented as
a con ict of opinions on judicial independence, whether impaired or strengthened by the
law; on reorganization of the courts, whether abolition of o ce or removal therefrom; and
on delegation of legislative power, whether authorized or unauthorized. Without detracting
from the merits, the force and brilliance of their advocacies based on logic, history and
precedents, I choose to stand on the social justi cation and the functional utility of the law
to uphold its constitutionality. In the light of contemporaneous events from which the New
Republic emerged and evolved new ideals of national growth and development, particularly
in law and government, a kind or form of judicial activism, perhaps similar to it, is
necessary to justify as the ratio decidendi of Our judgment.
DE CASTRO, J ., concurring :
1. CONSTITUTIONAL LAW; JUDICIARY; CREATION AND ORGANIZATION OF COURTS, A
CONSTITUTIONAL PREROGATIVE OF THE LEGISLATURE. — A creation and organization of
courts inferior to the Supreme Court is a constitutional prerogative of the legislature. This
prerogative is plenary and necessarily implies the power to reorganize said courts, and in
the process, abolish them to give way to new or substantially different ones. To contend
otherwise would be to forget a basic doctrine of constitutional law that no irrepealable
laws shall be passed. dctai
2. ID.; ID.; ID.; POWER TO CREATE STATUTORY COURTS INCLUDES THE POWER TO
ABOLISH THEM; JUDICIAL SECURITY OF TENURE NOT A LEGAL IMPEDIMENT TO THE
EXERCISE THEREOF. — The power to create courts and organize them is necessarily the
primary authority from which would thereafter arise the security of tenure of those
appointed to perform the functions of said courts. In the natural order of things, therefore,
since the occasion to speak of security of tenure of judges arises only after the courts
have rst been brought into being, the right to security of tenure takes a secondary
position to the basic and primary power of creating the courts to provide for a fair and
strong judicial system. If the legislature, in the exercise of its authority, deems it wise and
urgent to provide for a new set of courts, and in doing so, it feels the abolition of the old
courts would conduce more to its objective of improving the judiciary and raising its
standard, the matter involved is one of policy and wisdom into which the courts, not even
the Supreme Court, cannot inquire, much less interfere with. By this secondary position it
has to the primary power of the legislature to create courts, the security of tenure given to
the incumbents should not be a legal impediment to the exercise of that basic power of
creating the statutory courts which, by necessary implication, includes the power to
abolish them in order to create new ones. This primary legislative power is a continuing
one, and the resultant right of security of tenure of those appointed to said courts could
not bring about the exhaustion of that power. Unquestionably, the legislature can repeal its
own laws, and that power can never be exhausted without, as a consequence, violating a
fundamental precept of constitutional and representative government that no irrepealable
laws shall be passed.
3. ID.; ID.; JUDICIARY REORGANIZATION ACT OF 1980; AN EFFECTIVE AND EFFICIENT
SYSTEM OF ADMINISTRATION OF JUSTICE MORE IMPORTANT THAN THE SECURITY OF
TENURE OF JUDGES. — The passage of the Judiciary Reorganization Act of 1980 is no
more than the exercise of the power vested by the Constitution on the legislative body of
the Republic. That power carries with it the duty and responsibility of providing the people
with the most effective and e cient system of administration of justice. This is by far of
more imperative and transcendental importance than the security of tenure of judges
which, admittedly, is one of the factors that would conduce to independence of the
judiciary — but rst of all, a good, e cient and effective judiciary. A judiciary wanting in
these basic qualities does not deserve the independence that is meant only for a judiciary
that can serve best the interest and welfare of the people which is the most primordial and
paramount consideration, not a judiciary in which the people's faith has been eroded, a
condition which the security of tenure, in some instances, may even be contributory.
4. ID.; ID.; ID.; ID.; INFRINGEMENT OF THE RIGHT OF SECURITY OF TENURE JUSTIFIED
BY THE EXERCISE OF POLICE POWER. — When two interests con ict as what had given
rise to the present controversy — the duty of the legislature to provide society with a fair,
e cient and effective judicial system, on one hand, and the right of judges to security of
tenure, on the other, the latter must of necessity yield to the former. One involves public
welfare and interest more directly and on a greater magnitude than the right of security of
tenure of the judges which is, as is easily discernible, more of a personal bene t to just a
few, as only the judge affected could seek judicial redress of what he conceives to be its
violation. Herein lies the propriety of the exercise of "police power" of the State, if this
concept which underlies even the Constitution, has to be invoked as a constitutional
justi cation of the passage of the Act in question. That is, if a con ict between the primary
power of the legislature to create courts, and mere consequential bene t accorded to
judges and justices after the creation of the courts is indeed perceivable, which the writer
falls to see, or, at least, would disappear upon a reconciliation of the two apparently
con icting interests which, from the above disquisition, is not hard to nd. It is, without
doubt, in the essence of the exercise of police power that a right assessable by individuals
may be infringed in the greater interest of the public good and general welfare. This is
demonstrated in how the rights and freedoms enumerated in the Bill of Rights enjoyable by
the entire people, not just be a handful in comparison, are made subject to the lawful
exercise of the police power of the State.
5. ID.; ID.; ID.; RESULTANT ABOLITION OF COURTS DOES NOT AMOUNT TO
UNLAWFUL REMOVAL OF JUDGES. — The provision of Article XVII, Section 10 of the
Constitution gives to judicial o cials no more than a guarantee that their retirement age
as xed in the Constitution shall not be alterable at mere legislative pleasure. The
equivalent provision in the 1935 Constitution was inserted for the rst time because the
retirement age before then was provided merely by statute not by the Constitution. If it
comes to their removal or suspension, what gives them constitutional protection is the
aforequoted provision which does not contemplate abolition of o ce when done in good
faith, for removal implies the existence of the o ce, not when it is abolished. As has been
held, abolition of o ce for no reason related to public welfare or for the good of the
service, let alone when done in bad faith, amounts to an unlawful removal. The abolition of
the courts as declared in the Act as a result of a reorganization of the judiciary, as the title
of the law curtly but impressively announces, can by no means, from any viewpoint, be so
branded. And whether by said reorganization, the present courts would be deemed
abolished, as the law expresses such an unmistakable intent, the matter is one for the sole
and exclusive determination of the legislature. It rests entirely on its discretion whether by
the nature and extent of the changes it has introduced, it has done enough to consider
them abolished. To give the Supreme Court the power to determine the extent or nature of
the changes as to their structure, distribution and jurisdiction, before the clear intent to
abolish them, or to declare them so abolished, is given effect, would be to allow undue
interference in the function of legislation. This would be contrary to the primary duty of
courts precisely to give effect to the legislative intent as expressed in the law or as may be
discovered therefrom.
6. ID.; ID.; ID.; ID.; JUDICIAL INQUIRY INTO THE ABOLITION OF COURTS NOT PROPER.
— The abolition of the courts is a matter of legislative intent into which no judicial inquiry is
proper, except perhaps if that intent is so palpably tainted with constitutional repugnancy,
which is not so in the instant case. We have, therefore, no occasion to speak of removal of
judges when the reorganization of the judiciary would result in the abolition of the courts
other than the Supreme Court and the Court of Tax Appeals. Hence, the provision of the
Constitution giving to the Supreme Court power to dismiss a judge by a vote of eight
justices does not come into the vortex of the instant controversy. Its possible violation by
the assalied statute cannot happen, and may, therefore, not constitute an argument
against the constitutionality of the law.cda
7. ID.; ID.; ID.; ARBITRARINESS IN THE IMPLEMENTATION OF THE LAW SUBJECT TO

JUDICIAL REDRESS. — Only in the implementation of the law may there possibly be a taint
of constitutional repugnancy, as when a judge of acknowledged honesty, industry and
competence is separated, because an act of arbitrariness would thereby be committed,
but the abolition of the courts as declared by the law it not by itself or per se
unconstitutional. Consequently, the law, the result of serious and concerned study by a
highly competent committee, deserves to be given a chance to prove its worth in the way
of improving the judiciary. If in its implementation any one, if at all, feels aggrieved, he can
always seek judicial redress, if he can make out a case of violation of his right of security
of tenure with uncontrovestible clarity, as when the separation is very arbitrary in the
peculiar circumstances of his case, for an act of arbitrariness, under any constitution, is
unpardonable.
8. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; DISMISSAL OF A PREMATURE
PETITION. — The petition should be dismissed for being premature. It asks this Court to
exercise its power of judicial inquiry, the power to declare a law unconstitutional when it
con icts with the fundamental law (People vs. Vera, 63 Phil. 36). This power has well-
defmed limits, for it can be exercised only when the following requisites are present, to wit:
(1) There must be an actual case or controversy; (2) The question of constitutionality must
be raised by the proper party; (3) He should do so at the earliest opportunity; and (4) The
determination of the constitutionality of the statute must be necessary to a nal
determination of the case. The petition does not present as actual controversy nor was it
filed by the proper parties.
9. ID.; ID.; ID.; ID.; PETITIONERS WITHOUT LEGAL PERSONALITY TO QUESTION THE
CONSTITUTIONALITY OF THE JUDICIARY REORGANIZATION LAW. — The main ground for
which the constitutionality of the Judiciary Reorganization Act of 1980 is assailed is that it
is violative of the security of tenure of justices and judges. The only persons who could
raise the question of constitutionality of the law, therefore, are the actual incumbents of
the courts who would be separated from the service upon the abolition of the courts
affected by the law, on the theory as advanced by petitioners that their judicial security of
tenure would be violated. Olongapo City Judge de la Llana, the only judge among the
petitioners, has not been separated from the service. Nor is his separation already a
certainty, for he may be appointed to the court equivalent to his present court, or even
promoted to a higher court. Only when it has become certain that his tenure has been
terminated will an actual controversy arise on his allegation of a fact that has become
actual, not merely probable or hypothetical. The present petition may neither be allowed as
a taxpayer suit. A taxpayer may bring an action to raise the question of constitutionality of
a statute only when no one else can more appropriately bring the suit to defend a right
exclusively belonging to him, and, therefore, would localize the actual injury to his person,
and to no other. For a "proper" party to invoke the power of judicial inquiry, as one of the
requisites in the exercise of such power, does not mean one having no better right, one
more personalized, than what he has as a member of the public in general. With the
incumbent judges undoubtedly being the ones under petitioners' theory, who would suffer
direct and actual injury, they should exclude mere taxpayers who cannot be said to suffer
as "direct" and "actual" an injury as the judges and justices by the enforcement of the
assailed statute, from the right to bring the suit.
10. ID.; ID.; ID.; JUDICIARY REORGANIZATION LAW OF 1980 NOT
UNCONSTITUTIONAL. — It would not be proper to declare the law void at this stage,
before it has even been given a chance to prove its worth, as the legislature itself and all
those who helped by their exhaustive and scholarly study, felt it to be an urgent necessity,
and before any of the proper parties who could assail its constitutionality would know for
a fact, certain and actual, not merely probable or hypothetical, that they have a right
violated by what they could possibly contend to be unconstitutional enforcement of the
law, not by a law that is unconstitutional unto itself. The writer is for giving the law a
chance to be put into application so as not to douse great popular expectations for the
count to regain their highest level of e ciency and reputation for probity. Inevitably, this is
to be so since only when the law is fully implemented will all the courts affected be
declared abolished, undoubtedly to avoid an interregnum when the country is without any
court, except the Supreme Court, the Court of Tax Appeals and the Sandigan. Only then will
it be known whether an actual controversy would arise because any of the incumbents
have been left out in the restructured judiciary.
cdphil
11. ID.; ID.; ID.; ID.; INTERPRETATION THAT UPHOLDS THE CONSTITUTIONALITY OF
THE LAW SHOULD PREVAIL. — A law should, by all reasonable intendment and feasible
means, be saved from the doom of unconstitutionality, the rule corollary thereto being that
if a law is susceptible to two interpretations, one of which would make it constitutional,
that interpretation should be adopted that will not kill the law.
12. ID.; ID.; ID.; ID.; ADEQUATE REMEDY IN LAW AVAILABLE TO THOSE WHO MAY BE
INJURED THEREBY. — While in the implementation of the law, constitutional repugnancy
may not entirely be ruled out, a categorical ruling hereon not being necessary or desirable
at the moment, the law itself is de nitely not unconstitutional. Any of the incumbent judges
who feel injured after the law shall have been implemented has adequate remedy in law,
with full relief as would be proper. But surely, the bene ts envisioned by the law in the
discharge of one of the basic duties of government to the people — the administration of
justice — should not be sacri ced, as it would be, if the law is, as sought in the present
petition, declared void right now, on the claim of a few of being allegedly denied a right, at
best of doubtful character, for the claim would seem to rest on an unsupportable theory
that they have a vested right to a public office.
13. ID.; ID.; ID.; ID.; BATAS PAMBANSA BLG. 129 NOT SELF-EXECUTORY;
REORGANIZATION LAW DISTINGUISHED FROM REPUBLIC ACT 1186. — The law in
question is not self-executing in the sense that upon its effectivity, certain judges and
justices cease to be so by direct action of the law. This is what distinguishes the Act in
question from R.A. No. 1186 involved in the case of Ocampo vs. Secretary of Justice, 50
O.G. 147 which by its direct action, no act of implementation being necessary, all the
judges whose positions were abolished, automatically ceased as such. The Act in
question, therefore, is not as exposed to the same vulnerability to constitutional attack as
R.A. No. 1186 was. Yet by the operation of the Constitution with its wise provision on how
a law may be declared unconstitutional, R.A. No. 1186 stood the test for it to be enforced
to the fullness of its intent, which was, as in the law under consideration, identi ed with
public interest and general welfare, through a more e cient and effective judicial system
as the Judiciary Reorganization Act of 1980 seeks to establish.
14. ID.; ID.; ID.; ID.; ACHIEVEMENT OF THE PRIMARY PURPOSE OF IMPROVING THE
JUDICIARY TIlE PREVAILING FACTOR IN UPHOLDING THE CONSTITUTIONALITY OF THE
LAW. — The question before this Court is a simple matter of choosing between protecting
some judges from possible separation, as the implementation of the law to achieve its
primary purpose of improving the judiciary may have to result in, or serving the interest of
the entire society through an honest, e cient and effective judiciary. For, it is unthinkable
that what is for the good of the people as a whole could have been meant by the
Constitution to be sacri ced for the sake of only a few. The greatest good for the greatest
number is an unwritten rule, more rm and enduring than any of the postulates spread in
our written Constitution.
MELENCIO-HERRERA, J ., concurring :
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW OF 1980;
LEGISLATIVE POWER TO ABOLISH COURTS CO-EXTENSIVE WITH THE POWER TO
CREATE THEM. — It is a fundamental proposition that the legislative power to create
courts ordinarily includes the power to organize and to reorganize them, and that the
power to abolish courts is generally co-extensive with the power to create them. The
power to abolish was not intended to be quali ed by the permanence of tenure. (Opinion
of Chief Justice Ricardo Paras in Ocampo vs. Secretary of Justice, 51 O.G. 147 [1955],
citing McCulley vs. State, 53 SW 134 Halsey vs. Gaines, 2 Lea 316). The right of Judges to
hold o ce during good behavior until they reach the age of 70 years, or become
incapacitated to discharge the duties of their o ce, does not deprive Congress of its
power to abolish, organize or reorganize inferior courts. (Brillo vs. Enage, 94 Phil. 732, 735,
citing Zandueta vs. de la Costa, 66 Phil. 615; 42 Am. Jur., Pub. O cer, 904-5). Judges of
those courts take office with that encumbrance and knowledge.
2. ID.; ID.; ID.; TENURE OF JUDGES AND TENURE OF COURTS DISTINGUISHED. —
Section 1, Article X refers to the "Judiciary" as a fundamental department of Government,
Section 7 of the same Article refers to the tenure of o ce of "individual" Judges (inclusive
of Justices of inferior Courts); that is to say, tenure of o ce is a matter concerning the
individual Judge. This "individuality" character of Section 7 is supported by the clause that
the Supreme Court has the power to discipline individual judges of inferior courts.
3. ID.; ID.; LEGISLATIVE EXERCISE OF THE POWER TO REORGANIZE COURTS NOT
HAMPERED BY THE SECURITY OF TENURE GUARANTEE; JUDGES ARE ENTAILED TO
THEIR COURTS BUT COURTS ARE NOT ENTAILED TO THEIR JUDGES. — A legislature is not
bound to give security of tenure to courts. Courts can be abolished. In fact, the entire
judicial system can be changed. If that system can no longer admit of change, woe to the
wheels of progress and the imperatives of growth in the development of the Judiciary. To
hold that tenure of judges is superior to the legislative power to reorganize is to render
impotent the exercise of that power. Under Section 7, Article X, Judges are entailed to their
count, from which they cannot be separated before retirement age except as a disciplinary
action for bad behavior. Under Section 1, Courts are not entailed to their judges, because
the power of the legislative to establish inferior court presupposes the power to abolish
those courts. If an inferior court is abolished, the judge presiding that court will necessarily
have to lose his position because the abolished court is not entailed to him.
4. ID.; ID.; ID.; ID.; CONSTITUTIONAL GUARANTEE OF TENURE OF JUDGES APPLIES
ONLY AS THEIR COURTS EXIST. — The constitutional guarantee of tenure of Judges
applies only as their Courts exist. As long as those Courts exist, the Judges cannot be
ousted without just cause; that is the client of the constitutional provision relative to
security of tenure of Judges. Upon declaration of the completion of the reorganization as
provided for in the Reorganization Act, the affected Courts "shall be deemed automatically
abolished." There being no Courts, there are no o ces for which tenure of Judges may be
claimed. By the abolition of those o ces, the rights to them are necessarily extinguished
(Manalang vs. Quitoriano, 94 Phil. 903 [(1954)].
5. ID.; ID.; ID.; BATAS PAMBANSA BLG. 129 AN ANSWER TO AN URGENT PUBLIC
NEED; GOOD FAITH IN THE ENACTMENT THEREOF PRESUMED. — The challenged law was
enacted by the Batasang Pambansa in response to an urgent and pressing public need and
not for the purpose of affecting adversely the security of tenure of all Judges or legislating
them out to the detriment of judicial independence. It should not be said of the Batasang
Pambansa that its power of abolition of Courts has been used to disguise an
unconstitutional and evil purpose to defeat the security of tenure of Judges. The Judiciary
Reorganization Act of 1981 su ciently complies with the bona de rule in the abolition of
public o ce. Besides, every presumption of good faith in its actuations must be accorded
a coordinate and co-equal branch of government, supreme within the limits of its own
sphere, until that presumption is clearly overcome. There is no showing that the
Reorganization Act was motivated for personal or political reasons as to justify the
interference by the Court (Garvey vs. Lowell, 109 Mass. 47, 85 N.E. 182, 127 A.S.R. 468;
State vs. Eduards, 40 Mont. 287; 106 Pat. 695, 19 R.C.L. 236; Llanto vs. Dimaporo, 16
5CRA 599 [[1966]). Public interest and public good, as the legislative body views it, must
be balanced with tenure of Judges, which is an individual right. Reverting to Section 1 and
Section 7 of Article X, the former is the weightier, because the "Judiciary" is of more
importance to the welfare of the country than the tenure of o ce of an individual Judge. If
a Judge is removed without cause, there can be damage to the public welfare to some
extent, but maintenance of a Court that does not meet the requirement of progressive
Government, can cause incalculable prejudice to the people.
6. ID.; ID.; ID.; REORGANIZATION OF THE JUDICIAL SYSTEM DOES NOT CONFLICT
WITH THE SUPREME COURT'S POWER TO DISCIPLINE JUDGES. — Where the legislature
has willed that the Courts be abolished, the power to discipline cannot post an obstacle to
the abolition. The power to discipline can come into play only when there is removal from
an existing judicial o ce, but not when that o ce is abolished. The reorganization of the
judicial system with the abolition of certain courts is not an exercise of the power to
discipline the Judges of the abolished courts. prLL
7. ID.; ID.; ID.; ABOLITION OF COURTS NOT A DEPRIVATION OF DUE PROCESS OF LAW.
— The abolition would be no deprivation either of due process of law. A public o ce
cannot be regarded as the "property" of the incumbent. A pubily o ce is not a contract
(Segovia vs. Noel, 47 Phil. 543 [[1925]). A public o ce is a public trust (Section 1, Article
XIII, 1973 Constitution). It is a privilege in the gift of the State (Brown vs. Russel, 166 Mast.
14, 43 NE 1005, 32 LRA 253 cited also in Tañada & Carreon, Political Law of the
Philippines, Vol. 2, p. 537). The o cers are the servants of the people and not their rulers
(22 R.C.L. 378-379, cited in Martin, Administrative Law, Law on Public o cers and Election
Law, p. 112, 1970 ed.). Besides, it bears stressing that there is no removal from o ce but
abolition of the office itself.
8. ID.; ID.; ID.; BATAS PAMBANSA BLG. 129 ENACTED IN THE PURSUIT OF
DEVELOPMENTAL GOALS WITHIN THE JUDICIARY. — The questioned statute is in keeping
with major reforms in other departments of government. "The thrust is on development." It
is "the rst major reorganization after four generations." It does not provide for a
piecemeal change, which could be ineffective. It goes to the roots and does not just
scratch the surface of our judicial system. Its main objectives are an improved
administration of justice, the "attainment of more e ciency in the disposal of cases, a
reallocation of jurisdiction, and a revision of procedures which do not send to the proper
meting out of justice." These aims are policy matters of necessity in the pursuit of
developmental goals within the judiciary.
9. ID.; ID.; ID.; INNOVATIVE FEATURES CONTAINED IN THE REORGANIZATION LAW. —
There are innovative features in the Act that commend themselves: (a) the confusing and
illogical areas of concurrent jurisdiction between trial Courts have been entirely eliminated;
(b) Under Section 39, there is a uniform period for appeal of fteen (15) days counted
from the notice of the final order, resolution, award, judgment, or decision appealed from; a
record on appeal is no longer required to take an appeal. The entire original record is now
to be transasitted; (c) Under Section 40, in deciding appealed cases, adoption by reference
of ndings of fact and conclusions of law as set forth in the decision, order, or resolution
of decisions in appealed cases; (d) Section 42 provides for a monthly longevity pay
equivalent to 5% of the monthly basic pay for Justices and Judges of the courts herein
created for each ve years of continuous, e cient, and meritorious service rendered in the
Judiciary, Provided that, in no case shall the total salary of each Justice or Judge
concerned, after this longevity pay is added, exceed the salary of the Justice or Judge next
in rank. Thus, Justices and Judges who may not reach the top, where unfortunately there is
not enough room for all, may have the satisfaction of at least approximating the salary
scale of those above him depending on his length of service.
10. ID.; ID.; ID.; SAFEGUARDS TO BE UNDERTAKEN IN THE IMPLEMENTATION OF THE
LAW. — While the law itself as written is constitutional, the manner in which it will be
administered should not be tainted with unconstitutionality (Myles Salt Co. vs. Board of
Commrs., 239 US 478, 60 L. Ed. 392, 36 Sct 204). To obviate the possibility of an
unconstitutional exercise of power the following safeguards are recommended and/or
expected to be undertaken: (a) the President can be expected to indicate a reasonable
time frame for the completion of the reorganization provided for in the Act and the
issuance of the corresponding implementing order; (b) appointments and their effectivity
should be simultaneous with, or as close as possible, to the declaration by the President of
the completion of the reorganization under Section 44 to avoid any detriment to the
smooth and continuous functioning of the judicial machinery; and (c) the services of those
not separated should be deemed uninterrupted, as recommended by the Committee on
Judicial Reorganization.
11. ID.; ID.; ID.; STAFFING PATTERN; NAMES OF JUDGES TO BE EXCLUDED
THEREFROM; EXECUTIVE CHOICE TO BE RESPECTED. — Justice Herrera disagrees with
the suggestion of one of the amici curiae that the sta ng pattern be made to include the
names of Judges. The sta ng pattern for Judges it already clearly and explicitly provided
in the law itself which enumerates the various Judges and Justices in their hierarchical
order. Furthermore, to include she superior positions of Judges would depart from the
traditional concept of a sta ng pattern, which refers more to personnel organization and
corresponding salaries of inferior employees. It is also constitutionally objectionable in
that it would interfere with the prerogative of appointment intrinsically executive in nature
(Guevara vs. Inocentes, 16 SCRA 379 [1966]; Government of the Philippines vs. Springer,
50 Phil. 259 [1927]). The President may not be deprived of, nor be limited in, the full use of
his discretion in the appointment of persons to any public o ce. Nothing should so trench
upon executive choice as to be, in effect, judicial designation.
12. ID.; ID.; ID.; NEW APPOINTMENTS TO STRENGTHEN THE JUDICIAL SYSTEM. —
Reliance can be placed on the good faith of the President that all the deserving, upon
considerations of "e ciency, integrity, length of service and other relevant factors," shall
be appointed to a strengthened and revitalized judicial system in the interest of public
service; that appointments will not be unduly delayed, and that appointees will be
evaluated thoroughly to ensure quality and impartiality in the men and women who will
keep vigil over our judicial ramparts.cdasia
ERICTA, J ., concurring :
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW;
LEGISLATIVE POWER TO CREATE COURTS INCLUDES THE POWER TO ABOLISH THE
SAME. — The constitution grants to the Batasang Pambansa the power to create courts
inferior to the Supreme Court (Article X, Section 1). All existing inferior courts were created
by law. No law is irrepealable. The power to create an o ce includes the power to abolish
the same. (Urgelio vs. Osmeña, 9 SCRA 317; Maca vs. Ochave, 20 SCRA 142)
2. ID.; ID.; ID.; ID.; REMOVAL FROM OFFICE AND ABOLITION OF OFFICE,
DISTINGUISHED. — Security of tenure cannot be invoked when there is no removal of a
public o cer or employee but an abolition of his o ce. (Manalang vs. Quitoriano, 94 Phil.
903; Cruz vs. Primicias, 23 SCRA 998; Baldoz vs. O ce of the President, 78 SCRA 334,
362). A distinction should be made between removal from o ce and abolition of an o ce.
Removal implies that the o ce subsists after ouster, while, in abolition, the o ce no
longer exists thereby terminating the right of the incumbent to exercise the rights and
duties of the office. (Canonigo vs. Ramiro, 31 SCRA 278)
3. ID.; ID.; ID.; RESULTANT ABOLITION OF COURTS PASSES THE TEST OF GOOD
FAITH. — The power of the legislative branch of the government to abolish courts inferior
to the Supreme Court has long been established. (Ocampo vs. Secretary of Justice, 31
O.G. 147) What is only needed is that the abolition passes the test of good faith. It need
only be shown that said abolition of the courts is merely incidental to a bona de
reorganization. (Urgelio vs. Osmeña, 9 SCRA 317)
4. ID.; ID.; ID.; PUBLIC WELFARE TO PREVAIL OVER THE INDIVIDUAL INTEREST OF
JUDGES. — In the implementation of the law, some Judges and Justices may be adversely
affected. But in a con ict between public interest and the individual interest of some
Judges and Justices, the public weal must prevail. The welfare of the people is the
supreme law.
5. ID.; ID.; ID.; APPOINTMENTS TO THE NEW COURTS, A PRESIDENTIAL
PREROGATIVE. — The implementation of the law will entail appointments to the new
courts. The power of appointment is the exclusive prerogative of the President. The
implementation of the law should be left exclusively to the wisdom, patriotism and
statesmanship of the President.
ABAD SANTOS, J ., concurring and dissenting :
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW OF 1980
(BATAS PAMBANSA BLG. 129); LAW NOT UNCONSTITUTIONAL. — I agree with the learned
Chief Justice of the Philippines that Batas Pambansa Blg. 129 is not unconstitutional.
2. ID.; ID.; ID.; ID.; PRIOR CONSULTATION WITH THE SUPREME COURT SHOULD NOT
BE REQUIRED OF THE PRESIDENT IN THE IMPLEMENTATION OF THE LAW. — It has
already been ruled that the statute does not suffer from any constitutional in rmity
because the abolition of certain judicial o ces was done in good faith. This being the
case, I believe that the Executive is entitled to exercise its constitutional power to ll the
newly created judicial positions without any obligation to consult with this Court and to
accord its views the fullest consideration. To require consultation will constitute an
invasion of executive territory which can be resented and even repelled. The implicit
suggestion that there could be an unconstitutional implementation of the questioned
legislation is not congruent with the basic conclusion that it is not unconstitutional.
PLANA, J ., concurring and dissenting :
1. CONSTITUTIONAL LAW; JUDICIARY REORGANIZATION LAW; POWER TO CREATE
COURTS INCLUDES THE POWER TO ABOLISH OR REPLACE THEM; BATAS PAMBANSA
BLG. 129 ENACTED IN GOOD FAITH. — As the lawmaking body has the power to create
inferior courts and de ne, prescribe and apportion their jurisdiction, so it has the power to
abolish or replace them with other courts at long as the act is done in good faith and not
for the purpose of attaining an unconstitutional end. Good faith has thus become the
crucial issue in the case at bar.
2. ID.; ID.; ID.; PRESIDENT NOT OBLIGED TO CONSULT WITH THE SUPREME COURT IN
THE IMPLEMENTATION OF THE LAW. — The President is under no obligation to consult
with the Supreme Court; and the Supreme Court as such is not called upon to give legal
advice to the President. Indeed, as the Supreme Court itself has said, it cannot give
advisory opinions (Bacolod-Murcia Planters' Assoc., Inc. vs. Bacolod-Murcia Milling Co., 30
SCRA 67; NWSA vs. Court of Industrial Relations, 90 SCRA 629) even to the President.
3. ID.; ID.; ID.; FIXING OF COMPENSATION AND ALLOWANCES FOR MEMBERS OF THE
JUDICIARY DOES NOT CONSTITUTE AN UNDUE DELEGATION UNTO THE PRESIDENT OF
LEGISLATIVE POWER; PRINCIPLE OF SEPARATION OF POWERS UNDER THE 1973
CONSTITUTION. — Under the Old Constitution, when the abiding rule was separation of
legislative and executive powers, there was good reason to maintain the doctrine of non-
delegation of legislative power. Otherwise, the principle of separation of governmental
powers could be negated via unbridled delegation of legislative power. The 1973
Constitution has however radically changed the constitutional set-up. There is now a
commingling or fusion of executive and legislative powers in the hands of the same group
of o cials. Cabinet members play a leading role in the legislative process, and members
of the Batasan actively discharge executive functions. The Prime Minister indeed must
come from its ranks. Under the circumstances, there is really not much sense in rigidly
insisting on the principle of non-delegation of legislative power, at least vis-a-vis the
Executive Department. In a very real sense, the present Constitution has signi cantly
eroded the hoary doctrine of non-delegation of legislative power, although it has retained
some provisions of the old Constitution which were predicated on the principle of non-
delegation, this time perhaps not so much to authorize shifting of power and thereby
correspondingly reduce the incidence of "undue" delegation of legislative power, as to
avert the abdication thereof.
TEEHANKEE, J ., dissenting :
1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIARY REORGANIZATION LAW OF 1980
(BATAS PAMBANSA BLG.129); RESULTANT ABOLITION OF COURTS; EXPRESS
GUARANTY OF SECURITY OF TENURE OVERRIDES THE IMPLIED AUTHORITY OF
REMOVING JUDGES BY LEGISLATION. — The reasoning that the express guaranty of
tenure protecting incumbent judges during good behaviour unless removed from o ce
after hearing and due process or upon reaching the compulsory retirement age of seventy
years must override the implied authority of removing by legislation the judges has been
further strengthened and placed beyond doubt by the new provisions of the 1973
Constitution that transferred the administrative supervision over all courts and their
personnel from the Chief Executive through the then Secretary of Justice to the Supreme
Court (Art. X, Sec. 6, 1973 Constitution) and vested in the Supreme Court exclusively the
power to discipline judges of inferior courts, and, by a vote of at least eight members,
order their dismissal, which power was formerly lodged by the Judiciary Act in the Chief
Executive. cdasia
2. ID.; ID.; ID.; ID.; ID.; 1973 CONSTITUTION RULES OUT OUSTER OF JUDGES BY
LEGISLATION BY VESTING IN THE SUPREME COURT THE POWER TO REMOVE AND
DISCIPLINE JUDGES. — If the framers of the 1973 Constitution wished to dispel the strong
doubts against the removal of incumbent judges through legislative action by abolition of
their courts, then they would have so clearly provided for such form of removal in the 1973
Constitution, but on the contrary as already stated they ruled out such removal or ouster of
judges by legislative action by vesting exclusively in the Supreme Court the power of
discipline and removal of judges of all inferior courts.
3. ID.; ID.; ID.; REORGANIZATION ACT DOES NOT CHANGE THE BASIC STRUCTURE OF
EXISTING COURTS. — The questioned Act effects certain changes and procedural reforms
with more speci c delineation of jurisdiction but they do not change the basic structure of
the existing courts. The present Municipal Courts, Municipal Circuit Courts and City Courts
are restructured and redesignated as Municipal Trial Courts and Municipal Circuit Trial
Courts and Metropolitan Trial Courts in the challenged Act. The Courts of First Instance,
Circuit Criminal Courts, Juvenile & Domestic Relations Courts and Courts of Agrarian
Relations are all restructured and redesigned to be known by the common name of
Regional Trial Courts with provision for certain branches thereof "to handle exclusively
criminal cases, juvenile and domestic relations cases, agrarian cases, urban land reform
cases and/or such other special cases as the Supreme Court may determine in the interest
of a speedy and e cient administration of justice" (Sec. 23, B.P. Blg. 129) and the Court of
Appeals is restructured and redesignated as the Intermediate Appellate Court with an
increase in the number of Appellate Justices from the present 43 to 30 but with a
reduction of the number of divisions from 13 (composed of 3 Justices each) to 10
(composed of 3 members each) such that it is feared that there is created a bottleneck at
the appellate level in the important task discharged by such appellate courts as reviewers
of facts.
4. ID.; ID.; ID.; ID.; "NEWCOURTS" SUBSTANTIALLY THE "OLD COURTS" WITH ONLY A
CHANGE OF NAME. — Justice Teehankee views that the candid admission by the Chief
Justice in his opinion for the Court "that he entertained doubts as to whether the
intermediate court of appeals provided for is a new tribunal" is equally applicable to all the
other mentioned courts provided for in the challenged Act as "new courts." And the best
proof of this is the plain and simple transitory provision in Section 44 thereof that upon the
President's declaration of completion of the reorganization (whereby the "old courts" shall
"be deemed automatically abolished and the incumbents thereof shall cease to hold
o ce"), "(T)he cases pending in the old Courts shall be transferred to the appropriate
Courts constituted pursuant to this Act, together with the pertinent functions, records,
equipment, property and the necessary personnel," together with the "applicable
appropriations." This could not have been possible without a speci cation and
enumeration of what speci c cases of the "old courts " would be transferred to the
particular "new courts," had these "new courts" not been manifestly and substantially the
"old courts" with a change of name — or as described by Justice Barredo to have been his
rst view, now discarded, in his separate opinion; "just a renaming, and not a substantial
and actual modi cation or alteration of the present judicial structure or system" or "a
rearrangement or remodelling of the old structure."
5. ID.; ID.; ID.; ABOLITION OF COURTS AND CONSEQUENT OUSTER OF INCUMBENT
JUDGES FROM OFFICE; GUARANTY OF TENURE OF JUDGES ESSENTIAL FOR A FREE AND
INDEPENDENT JUDICIARY; REORGANIZATION SHOULD ALLOW THE INCUMBENTS TO
REMAIN IN OFFICE UNLESS REMOVED FOR CAUSE. — The good faith in the enactment of
the challenged Act must need be granted. What must be reconciled is the legislative power
to abolish courts as implied from the power to establish them with the express
constitutional guaranty of tenure of the judges which is essential for a free and
independent judiciary. Adherents of the Rule of Law are agreed that indispensable for the
maintenance of the Rule of Law is free and independent judiciary, sworn to protect and
enforce it without fear or favor — "free, not only from graft, corruption, ineptness and
incompetence but even from the tentacles of interference and insiduous in uence of the
political powers that be," to quote again from Justice Barredo's separate opinion. Hence,
my adherence to the 7-member majority opinion of former Chief Justice Bengzon in the
case of Ocampo vs. Secretary of Justice, G.R. No. L-1790, Jan. 18, 1933, as restated by the
Philippine Association of Law Professors headed by former Chief Justice Roberto
Concepcion that "any reorganization should at least allow the incumbents of the existing
courts to remain in o ce (the appropriate counterpart "new courts') unless they are
removed for cause."
6. ID.; ID.; ID.; ID.; ID.; JUDICIAL INDEPENDENCE EXTENDS TO THE ENTIRE COURT
SYSTEM; VIEWS OF AMICI CURIAE THEREON. — Former U.P. Law Dean Irene Cortes in her
memorandum as amicus curiae stated "for the judiciary whose independence is not only
eroded but is in grave danger of being completely destroyed, judicial independence is not a
guarantee intended for the Supreme Court alone, it extends to the entire court system and
is even more vital to the courts at the lowest levels because there are more of them and
they operate closest to the people," and "particularly under the present form of modi ed
parliamentary government with legislative and executive functions overlapping and in
certain areas merging, the judiciary is left to perform the checking function in the
performance of which its independence assumes an even more vital importance." The
extensive memoranda led by Dean Cortes and other amici curiae such as former Senator
Jose W. Diokno who strongly urges the Court to strike down the Act "to prevent further
destruction of judicial independence," former Senator Lorenzo Sumulong, President of the
Philippine Constitution Association who advocates for the Court's adoption of the
Bengzon majority opinion in the Ocampo case so as to abide by "the elementary rule in the
interpretation of constitutions that effect should be given to all parts of the Constitution"
and that the judges' security of tenure guaranty should not be "rendered meaningless and
inoperative" former Solicitor General Arturo A. Alafriz, president of the Philippine Lawyers'
Association who submits that the total abolition of all courts below the Supreme Court
(except the Sandiganbayan and the Court of Tax Appeals) and the removal of the
incumbent Justices and Judges violates the independence of the judiciary, their security of
tenure and right to due process guaranteed them by the Constitution" and Atty. Raul M.
Gonzales, president of the National Bar Association of the Philippines who invokes the
Declaration of Delhi at the ICJ Conference in 1939, that "The principles of unremovability of
the Judiciary and their Security of Tenure until death or until a retiring age uted by statute
is reached, is an important safeguard of the Rule of Law" have greatly helped in fortifying
my views.
7. ID.; ID.; ID.; ID.; ID.; TRANSITORY PROVISIONS OF THE 1973 CONSTITUTION
RENDERED NUGATORY JUDGES' SECURITY OF TENURE; RESTORATION OF GUARANTY;
AN URGENT NEED FOR A FREE AND INDEPENDENT JUDICIARY. — The judges' security of
tenure was rendered nugatory by the Transitory Provisions of the 1973 Constitution which
granted the incumbent President the unlimited power to remove and replace all judges and
o cials (as against the limited one-year period for the exercise of such power granted
President Quezon in the 1935 Constitution upon establishment of the Philippine
Commonwealth). Upon the declaration of martial law in September, 1972, justices and
judges of all courts, except the Supreme Court, had been required to hand in their
resignation. There is listed a total of 33 judges who were replaced or whose resignations
were accepted by the President during the period from September, 1972 to April, 1976.
The power to replace even the judges appointed after the effectivity on January 17, 1973
Constitution is yet invoked on behalf of the President in the pending case of Tapucar vs.
Famador, G.R. No. 53467 led on March 27, 1980 notwithstanding the held view that such
post-1973 Constitution appointed judges are not subject to the Replacement Clause of the
cited Transitory Provision, . . . . And now comes this total abolition of 1,663 judicial
positions (and thousands of personnel positions) unprecedented in its sweep and scope.
The urgent need is to strengthen the judiciary with the restoration of the security of tenure
of judges, which is essential for a free and independent judiciary as mandated by the
Constitution, not to make more enfeebled an already feeble judiciary, possessed neither of
the power of the sword nor the purse, as decried by former Chief Justice Bengzon in his
Ocampo majority opinion. cdasia
8. ID.; ID.; ID.; ID.; ID.; JUDICIAL INDEPENDENCE TO BE PRESERVED ESPECIALLY IN

VIEW OF THE EXISTING STRONG TIES BETWEEN THE EXECUTIVE AND LEGISLATIVE
DEPARTMENTS. — In Fortun vs. Labang, 104 SCRA 607 (May 27, 1981), it was stressed
that with the provision transferring to the Supreme Court administrative supervision.over
the Judiciary, there is a greater need "to preserve unimpaired the independence of the
judiciary, especially so at present, where to all intents and purposes, there is a fusion
between the executive and the legislative branches," with the further observation that
"many are the ways by which such independence could be eroded."
9. ID.; ID.; ID.; ID.; ID.; MOVE TO RID THE JUDICIARY OF INCOMPETENT AND CORRUPT
JUDGES; DUE PROCESS MUST BE OBSERVED IN THE IMPLEMENTATION OF THE PURGE.
— Former Senator Diokno in his memorandum anticipates the argument that "great ills
demand drastic cures" thus; "Drastic, yes — but not unfair nor unconstitutional. One does
not improve courts by abolishing them, any more than a doctor cures a patient by killing
him. The ills the judiciary suffers from were caused by impairing its independence; they will
not be cured by totally destroying that independence. To adopt such a course could only
breed more perversity in the administration of justice, just as the abuses of martial rule
have bred more subversion." Finally, as stated by the 1975 Integrated Bar of the
Philippines 2nd House of Delegates, "It would, indeed, be most ironical if Judges who are
called upon to give due process cannot count it on themselves. Observance of procedural
due process in the separation of mis ts from the Judiciary is the right way to attain a
laudible objective."
10. ID.; ID.; ID.; ID.; ID.; ID.; ID.; JUDGES TO BE REMOVED ONLY AFTER A FAIR
HEARING. — As stressed by the Chief Justice in the Fortun case, judges are entitled to the
cardinal principles of fairness and due process and the opportunity to be heard and defend
themselves against the accusations made against them and not to be subjected to
harassment and humiliation, and the Court will repudiate the "oppressive exercise of legal
authority." More so, are judges entitled to such due process when what is at stake is their
constitutionally guaranteed security of tenure and non-impairment of the independence of
the judiciary and the proper exercise of the constitutional power exclusively vested in the
Supreme Court to discipline and remove judges after fair hearing.
11. .ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; SUPREME COURT TO EXERCISE ITS POWER OF
DISCIPLINE AND DISMISSAL OF ALL JUDGES OF INFERIOR COURTS. — Judges of inferior
courts should not be summarily removed and branded for life in such reorganization on the
basis of con dential adverse reports as to their performance, competence or integrity,
save those who may voluntarily resign from o ce upon being confronted with such
reports against them. The trouble with such ex-parte reports, without due process or
hearing, has been proven from our past experience where a number of honest and
competent judges were summarily removed while others who were generally believed to
be basket cases have remained in the service. The power of discipline and dismissal of
judges of all inferior courts, from the Court of Appeals down, has been vested by the 1973
Constitution in the Supreme Court, and if the judiciary is to be strengthened, it should be
left to clean its own house upon complaint and with the cooperation of the aggrieved
parties and after due process and hearing.
12. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; INCUMBENT JUDGES TO BE RETAINED IN THE "NEW
COURTS". — The constitutional confrontation and con ict may well be avoided by holding
that since the changes and provisions of the challenged Act do not substantially change
the nature and functions of the "new courts" therein provided as compared to the
"abolished old court" but provide for procedural changes xed delineation of jurisdiction
and increases in the number of courts for a more effective and e cient disposition of
court cases, the incumbent judges' guaranteed security of tenure require that they be
retained in the corresponding "new courts."
DECISION
FERNANDO , C .J : p
This Court, pursuant to its grave responsibility of passing upon the validity of any executive
or legislative act in an appropriate case, has to resolve the crucial issue of the
constitutionality of Batas Pambansa Blg. 129, entitled "An Act Reorganizing the Judiciary,
Appropriating Funds Therefor and for Other Purposes." The task of judicial review, aptly
characterized as exacting and delicate, is never more so than when a conceded legislative
power, that of judicial reorganization, 1 may possibly collide with the time-honored
principle of the independence of the judiciary 2 as protected and safeguarded by this
constitutional provision: "The Members of the Supreme Court and judges of inferior courts
shall hold o ce during good behavior until they reach the age of seventy years or become
incapacitated to discharge the duties of their o ce. The Supreme Court shall have the
power to discipline judges of inferior courts and, by a vote of at least eight Members, order
their dismissal." 3 For the assailed legislation mandates that Justices and judges of
inferior courts from the Court of Appeals to municipal circuit courts, except the occupants
of the Sandiganbayan and the Court of Tax Appeals, unless appointed to the inferior courts
established by such Act, would be considered separated from the judiciary. It is the
termination of their incumbency that for petitioners justi es a suit of this character, it
being alleged that thereby the security of tenure provision of the Constitution has been
ignored and disregarded. cdphil
That is the fundamental issue raised in this proceeding, erroneously entitled Petition for
Declaratory Relief and/or for Prohibition 4 considered by this Court as an action for
prohibition, seeking to enjoin respondent Minister of the Budget, respondent Chairman of
the Commission on Audit, and respondent Minister of Justice from taking any action
implementing Batas Pambansa Blg. 129. Petitioners 5 sought to bolster their claim by
imputing lack of good faith in its enactment and characterizing as an undue delegation of
legislative power to the President his authority to x the compensation and allowances of
the Justices and judges thereafter appointed and the determination of the date when the
reorganization shall be deemed completed. In the very comprehensive and scholarly
Answer of Solicitor General Estelito P. Mendoza, 6 it was pointed out that there is no valid
justi cation for the attack on the constitutionality of this statute, it being a legitimate
exercise of the power vested in the Batasang Pambansa to reorganize the judiciary, the
allegations of absence of good faith as well as the attack on the Independence of the
judiciary being unwarranted and devoid of any support in law. A Supplemental Answer was
likewise led on October 8, 1981, followed by a Reply of petitioners on October 13. After
the hearing in the morning and afternoon of October 15, in which not only petitioners and
respondents were heard through counsel but also the amici curiae, 7 and thereafter
submission of the minutes of the proceeding on the debate on Batas Pambansa Blg. 129,
this petition was deemed submitted for decision.
The importance of the crucial question raised called for intensive and rigorous study of all
the legal aspects of the case. After such exhaustive deliberation in several sessions, the
exchange of views being supplemented by memoranda from the members of the Court, it
is our opinion and so hold that Batas Pambansa Blg. 129 is not unconstitutional.
1. The argument as to the lack of standing of petitioners is easily resolved. As far as
Judge de la Llana is concerned, he certainly falls within the principle set forth in Justice
Laurel's opinion in People v. Vera. 8 Thus: "The unchallenged rule is that the person who
impugns the validity of a statute must have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct injury as a result of its enforcement." 9
The other petitioners as members of the bar and o cers of the court cannot be
considered as devoid of "any personal and substantial interest" on the matter. There is
relevance to this excerpt from a separate opinion in Aquino, Jr. v. Commission on
Elections: 1 0 "Then there is the attack on the standing of petitioners, as vindicating at most
what they consider a public right and not protecting their rights as individuals. This is to
conjure the specter of the public right dogma as an inhibition to parties intent on keeping
public o cials staying on the path of constitutionalism. As was so well put by Jaffe: 'The
protection of private rights is an essential constituent of public interest and, conversely,
without a well-ordered state there could be no enforcement of private rights. Private and
public interests are, both in a substantive and procedural sense, aspects of the totality of
the legal order.' Moreover, petitioners have convincingly shown that in their capacity as
taxpayers, their standing to sue has been amply demonstrated. There would be a retreat
from the liberal approach followed in Pascual v. Secretary of Public Works, foreshadowed
by the very decision of People vs. Vera where the doctrine was rst fully discussed, if we
act differently now. I do not think we are prepared to take that step. Respondents,
however, would hark back to the American Supreme Court doctrine in Mellon v.
Frothingham, with their claim that what petitioners possess 'is an interest which is shared
in common by other people and is comparatively so minute and indeterminate as to afford
any basis and assurance that the judicial process can act on it.' That is to speak in the
language of a bygone era, even in the United States. For as Chief Justice Warren clearly
pointed out in the later case of Flast v. Cohen, the barrier thus set up if not breached has
definitely been lowered." 1 1
2. The imputation of arbitrariness to the legislative body in the enactment of Batas
Pambansa Blg. 129 to demonstrate lack of good faith does manifest violence to the facts.
Petitioners should have exercised greater care in informing themselves as to its
antecedents. They have laid themselves open to the accusation of reckless disregard for
the truth. On August 7, 1980, a Presidential Committee on Judicial Reorganization was
organized. 1 2 This Executive Order was later amended by Executive Order No. 619-A, dated
September 5 of that year. It clearly speci ed the task assigned to it: "1. The Committee
shall formulate plans on the reorganization of the Judiciary which shall be submitted within
seventy (70) days from August 7, 1980 to provide the President su cient options for the
reorganization of the entire Judiciary which shall embrace all lower courts, including the
Court of Appeals, the Courts of First Instance, the City and Municipal Courts, and all Special
Courts, but excluding the Sandiganbayan." 1 3 On October 17, 1980, a Report was
submitted by such Committee on Judicial Reorganization. It began with this paragraph:
"The Committee on Judicial Reorganization has the honor to submit the following Report. It
expresses at the outset its appreciation for the opportunity accorded it to study ways and
means for what today is a basic and urgent need, nothing less than the restructuring of the
judicial system. There are problems, both grave and pressing, that call for remedial
measures. The felt necessities of the time, to borrow a phrase from Holmes, admit of no
delay, for if no step be taken and at the earliest opportunity, it is not too much to say that
the people's faith in the administration of justice could be shaken. It is imperative that
there be a greater e ciency in the disposition of cases and that litigants, especially those
of modest means — much more so, the poorest and the humblest — can vindicate their
rights in an expeditious and inexpensive manner. The rectitude and the fairness in the way
the courts operate must be manifest to all members of the community and particularly to
those whose interests are affected by the exercise of their functions. It is to that task that
the Committee addresses itself and hopes that the plans submitted could be a starting
point for an institutional reform in the Philippine judiciary. The experience of the Supreme
Court, which since 1973 has been empowered to supervise inferior courts, from the Court
of Appeals to the municipal courts, has proven that reliance on improved court
management as well as training of judges for more e cient administration does not
su ce. Hence, to repeat, there is need for a major reform in the judicial system. It is worth
noting that it will be the rst of its kind since the Judiciary Act became effective on June
16, 1901." 1 4 It went on to say: "It does not admit of doubt that the last two decades of
this century are likely to be attended with problems of even greater complexity and
delicacy. New social interests are pressing for recognition in the courts. Groups long
inarticulate, primarily those economically underprivileged, have found legal spokesmen and
are asserting grievances previously ignored. Fortunately, the judiciary has not proved
inattentive. Its task has thus become even more formidable. For so much grist is added to
the mills of justice. Moreover, they are likely to be quite novel. The need for an innovative
approach is thus apparent. The national leadership, as is well-known, has been constantly
on the search for solutions that will prove to be both acceptable and satisfactory. Only
thus may there be continued national progress." 1 5 After which comes: "To be less
abstract, the thrust is on development. That has been repeatedly stressed — and rightly so.
All efforts are geared to its realization." Nor, unlike in the past, was it to be "considered as
simply the movement towards economic progress and growth measured in terms of
sustained increases in per capita income and Gross National Product (GNP)." 1 6 For the
New Society, its implication goes further than economic advance, extending to "the
sharing, or more appropriately, the democratization of social and economic opportunities,
the substantiation of the true meaning of social justice." 1 7 This process of modernization
and change compels the government to extend its eld of activity and its scope of
operations. The efforts towards reducing the gap between the wealthy and the poor
elements in the nation call for more regulatory legislation. That way the social justice and
protection to labor mandates of the Constitution could be effectively implemented" 1 8
There is likelihood then "that some measures deemed inimical by interests adversely
affected would be challenged in court on grounds of validity. Even if the question does not
go that far, suits may be led concerning their interpretation and application. . . . There
could be pleas for injunction or restraining orders. Lack of success of such moves would
not, even so, result in their prompt nal disposition. Thus delay in the execution of the
policies embodied in law could thus be reasonably expected. That is not conducive to
progress in development." 1 9 For, as mentioned in such Report, equally of vital concern is
the problem of clogged dockets, which "as is well known, is one of the utmost gravity.
Notwithstanding the most determined efforts exerted by the Supreme Court, through the
leadership of both retired Chief Justice Querube Makalintal and the late Chief Justice Fred
Ruiz Castro, from the time supervision of the courts was vested in it under the 1973
Constitution, the trend towards more and more cases has continued." 2 0 It is
understandable why. With the accelerated economic development, the growth of
population, the increasing urbanization, and other similar factors, the judiciary is called
upon much oftener to resolve controversies. Thus confronted with what appears to be a
crisis situation that calls for a remedy, the Batasang Pambansa had no choice. It had to
act, before the ailment became even worse. Time was of the essence, and yet it did not
hesitate to be duly mindful, as it ought to be, of the extent of its coverage before enacting
Batas Pambansa Blg. 129.
3. There is no denying, therefore, the need for "institutional reforms," characterized in
the Report as "both pressing and urgent." 2 1 It is worth noting, likewise, as therein pointed
out, that a major reorganization of such scope, if it were to take place, would be the most
thorough after four generations. 2 2 The reference was to the basic Judiciary Act enacted in
June of 1901, 2 3 amended in a signi cant way, only twice previous to the Commonwealth.
There was, of course, the creation of the Court of Appeals in 1935, originally composed "of
a Presiding Judge and ten appellate Judges, who shall be appointed by the President of
the Philippines, with the consent of the Commission on Appointments of the National
Assembly." 2 4 It could "sit en banc, but it may sit in two divisions, one of six and another of
ve Judges, to transact business, and the two divisions may sit at the same time." 2 5 Two
years after the establishment of independence of the Republic of the Philippines, the
Judiciary Act of 1948 2 6 was passed. It continued the existing system of regular inferior
courts, namely, the Court of Appeals, Courts of First Instance, 2 7 the Municipal Courts, at
present the City Courts, and the Justice of the Peace Courts, now the Municipal Circuit
Courts and Municipal Courts. The membership of the Court of Appeals has been
continuously increased. 2 8 Under a 1978 Presidential Decree, there would be forty- ve
members, a Presiding Justice and forty-four Associate Justices, with fteen divisions. 2 9
Special courts were likewise created. The rst was the Court of Tax Appeals in 1954, 3 0
next came the Court of Agrarian Relations in 1955, 3 1 and then in the same year a Court of
the Juvenile and Domestic Relations for Manila in 1955, 3 2 subsequently followed by the
creation of two other such courts for Iloilo and Quezon City in 1966. 3 3 In 1967, Circuit
Criminal Courts were established, with the Judges having the same quali cations, rank,
compensation, and privileges as judges of Courts of First Instance. 3 4
4. After the submission of such Report, Cabinet Bill No. 42, which later became the
basis of Batas Pambansa Blg. 129, was introduced. After setting forth the background as
above narrated, its Explanatory Note continues: "Pursuant to the President's instructions,
this proposed legislation has been drafted in accordance with the guidelines of that report
with particular attention to certain objectives of the reorganization, to wit, the attainment
of more e ciency in disposal of cases, a reallocation of jurisdiction, and a revision of
procedures which do not tend to the proper meting out of justice. In consultation with, and
upon a consensus of, the governmental and parliamentary leadership, however, it was felt
that some options set forth in the Report be not availed of. Instead of the proposal to
con ne the jurisdiction of the intermediate appellate court merely to appellate
adjudication, the preference has been opted to increase rather than diminish its jurisdiction
in order to enable it to effectively assist the Supreme Court. This preference has been
translated into one of the innovations in the proposed Bill." 3 5 In accordance with the
parliamentary procedure, the Bill was sponsored by the Chairman of the Committee on
Justice, Human Rights and Good Government to which it was referred. Thereafter,
Committee Report No. 225 was submitted by such Committee to the Batasang Pambansa
recommending the approval with some amendments. In the sponsorship speech of
Minister Ricardo C. Puno, there was reference to the Presidential Committee on Judicial
Reorganization. Thus: "On October 17, 1980, the Presidential Committee on Judicial
Reorganization submitted its report to the President which contained the 'Proposed
Guidelines for Judicial Reorganization.' Cabinet Bill No. 42 was drafted substantially in
accordance with the options presented by these guidelines. Some options set forth in the
aforesaid report were not availed of upon consultation with and upon consensus of the
government and parliamentary leadership. Moreover, some amendments to the bill were
adopted by the Committee on Justice, Human Rights and Good Government, to which the
bill was referred, following the public hearings on the bill held in December of 1980. The
hearings consisted of dialogues with the distinguished members of the bench and the bar
who had submitted written proposals, suggestions, and position papers on the bill upon
the invitation of the Committee on Justice, Human Rights and Good Government." 3 6 The
sponsor stressed that the enactment of such Cabinet Bill would result in the attainment "of
more e ciency in the disposal of cases [and] the improvement in the quality of justice
dispensed by the courts" expected to follow from the dockets being less clogged, with the
structural changes introduced in the bill, together with the reallocation of jurisdiction and
the revision of the rules of procedure, [being] designated to suit the court system to the
exigencies of the present day Philippine society, and hopefully, of the foreseeable future."
3 7 It may be observed that the volume containing the minutes of the proceedings of the
Batasang Pambansa show that 590 pages were devoted to its discussion. It is quite
obvious that it took considerable time and effort as well as exhaustive study before the act
was signed by the President on August 14, 1981. With such a background, it becomes
quite manifest how lacking in factual basis is the allegation that its enactment is tainted by
the vice of arbitrariness. What appears undoubted and undeniable is the good faith that
characterized its enactment from its inception to the affixing of the Presidential signature.
5. Nothing is better settled in our law than that the abolition of an o ce within the
competence of a legitimate body if done in good faith suffers from no in rmity. The
ponencia of Justice J.B.L. Reyes in Cruz v. Primicias, Jr. 3 8 reiterated such a doctrine: "We
nd this point urged by respondents, to be without merit. No removal or separation of
petitioners from the service is here involved, but the validity of the abolition of their o ces.
This is a legal issue that is for the Courts to decide. It is well-known rule also that valid
abolition of o ces is neither removal nor separation of the incumbents. . . . And, of course,
if the abolition is void, the incumbent is deemed never to have ceased to hold o ce. The
preliminary question laid at rest, we pass to the merits of the case. As well-settled as the
rule that the abolition of an o ce does not amount to an illegal removal of its incumbent is
the principle that, in order to be valid, the abolition must be made in good faith." 3 9 The
above excerpt was quoted with approval in Bendanillo, Sr. v. Provincial Governor, 4 0 two
earlier cases enunciating a similar doctrine having preceded it. 4 1 As with the o ces in the
other branches of the government, so it is with the judiciary. The test remains whether the
abolition is in good faith. As that element is conspicuously present in the enactment of
Batas Pambansa Blg. 129, then the lack of merit of this petition becomes even more
apparent. The concurring opinion of Justice Laurel in Zandueta v. De la Costa 4 2 cannot be
any clearer. In this quo warranto proceeding, petitioner claimed that he, and not
respondent, was entitled to the o ce of judge of the Fifth Branch of the Court of First
Instance of Manila. The Judicial Reorganization Act of 1936, 4 3 a year after the
inauguration of the Commonwealth, amended the Administrative Code to organize courts
of original jurisdiction likewise called, as was the case before, Courts of First Instance.
Prior to such statute, petitioner was the incumbent of one such court. Thereafter, he
received an ad interim appointment, this time to the Fourth Judicial District, under the new
legislation. Unfortunately for him, the Commission on Appointments of the then National
Assembly disapproved the same, with respondent being appointed in his place. He
contested the validity of the Act insofar as it resulted in his being forced to vacate his
position. This Court did not rule squarely on the matter. His petition was dismissed on the
ground of estoppel. Nonetheless, the separate concurrence in the result of Justice Laurel,
to repeat, rea rms in no uncertain terms the standard of good faith as the test of the
validity of an act abolishing an inferior court, and this too with due recognition of the
security of tenure guarantee. Thus: "I am of the opinion that Commonwealth Act No. 145 in
so far as it reorganizes, among other judicial districts, the Ninth Judicial District, and
establishes an entirely new district comprising Manila and the provinces of Rizal and
Palawan, is valid and constitutional. This conclusion ows from the fundamental
proposition that the legislature may abolish courts inferior to the Supreme Court and
therefore may reorganize them territorially or otherwise thereby necessitating new
appointments and commissions. Section 2, Article VIII of the Constitution vests in the
National Assembly the power to de ne, prescribe and apportion the jurisdiction of the
various courts, subject to certain limitations in the case of the Supreme Court. It is
admitted that Section 9 of the same Article of the Constitution provides for the security of
tenure of all the judges. The principles embodied in these two sections of the same Article
of the Constitution must be coordinated and harmonized. A mere enunciation of a principle
will not decide actual cases and controversies of every sort. (Justice Holmes in Lochner
vs. New York, 198 U.S., 45; 49 Law. ed., 937)" 4 4 Justice Laurel continued: "I am not
insensible to the argument that the National Assembly may abuse its power and move
deliberately to defeat the constitutional provision guaranteeing security of tenure to all
judges. But, is this the case? One need not share the view of Story, Miller and Tucker on the
one hand, or the opinion of Cooley, Watson and Baldwin on the other, to realize that the
application of a legal or constitutional principle is necessarily factual and circumstantial
and that xity of principle is the rigidity of the dead and the unprogressive. I do say, and
emphatically, however, that cases may arise where the violation of the constitutional
provision regarding security of tenure is palpable and plain, and that legislative power of
reorganization may be sought to cloak an unconstitutional and evil purpose. When a case
of that kind arises, it will be the time to make the hammer fall and heavily. But not until
then. I am satis ed that, as to the particular point here discussed, the purpose was the
ful llment of what was considered a great public need by the legislative department and
that Commonwealth Act No. 145 was not enacted purposely to affect adversely the tenure
of judges or of any particular judge. Under these circumstances, I am for sustaining the
power of the legislative department under the Constitution. To be sure, there was greater
necessity for reorganization consequent upon the establishment of the new government
than at the time Acts Nos. 2347 and 4007 were approved by the defunct Philippine
Legislature, and although in the case of these two Acts there was an express provision
providing for the vacation by the judges of their o ces whereas in the case of
Commonwealth Act No. 145 doubt is engendered by its silence, this doubt should be
resolved in favor of the valid exercise of the legislative power." 4 5
6. A few more words on the question of abolition. In the abovecited opinion of Justice
Laurel in Zandueta, reference was made to Act No. 2347 4 6 on the reorganization of the
Courts of First Instance and to Act No. 4007 4 7 on the reorganization of all branches of the
government, including the courts of rst instance. In both of them, the then Courts of First
Instance were replaced by new courts with the same appellation. As Justice Laurel pointed
out, there was no question as to the fact of abolition. He was equally categorical as to
Commonwealth Act No. 145, where also the system of the courts of rst instance was
provided for expressly. It was pointed out by Justice Laurel that the mere creation of an
entirely new district of the same court is valid and constitutional, such conclusion owing
"from the fundamental proposition that the legislature may abolish courts inferior to the
Supreme Court and therefore may reorganize them territorially or otherwise thereby
necessitating new appointments and commissions." 4 8 The challenged statute creates an
intermediate appellate court, 4 9 regional trial courts, 5 0 metropolitan trial courts of the
national capital region, 5 1 and other metropolitan trial courts, 5 2 municipal trial courts in
cities, 5 3 as well as in municipalities, 5 4 and municipal circuit trial courts. 5 5 There is even
less reason then to doubt the fact that existing inferior courts were abolished. For the
Batasang Pambansa, the establishment of such new inferior courts was the appropriate
response to the grave and urgent problems that pressed for solution. Certainly, there could
be differences of opinion as to the appropriate remedy. The choice, however, was for the
Batasan to make, not for this Court, which deals only with the question of power. It bears
mentioning that in Brillo v. Enage 5 6 this Court, in a unanimous opinion penned by the late
Justice Diokno, citing Zandueta v. De la Costa, ruled: "La segunda cuestion que el recurrido
plantea es que la Carta de Tacloban ha abolido el puesto. Si efectivamente ha sido abolido
el cargo, entonces ha quedado extinguido el derecho de recurrente a acuparlo y a cobrar el
salario correspondiente. McCulley vs. State, 46 LRA, 567. El derecho de un juez de
desempenarlo hasta los 70 años de edad o se incapacite no priva al Congreso de su
facultad de abolir, fusionar o reorganizar juzgados no constitucionales." 5 7 Nonetheless,
such well-established principle was not held applicable to the situation there obtaining, the
Charter of Tacloban City creating a city court in place of the former justice of the peace of
court. Thus: "Pero en el caso de autos el Juzgado de Tacloban no ha sido abolido. Solo se
le ha cambiado el nombre con el cambio de forma del gobierno local." 5 8 The present case
is anything but that. Petitioners did not and could not prove that the challenged statute
was not within the bounds of legislative authority. cdasia
7. This opinion then could very well stop at this point. The implementation of Batas
Pambansa Blg. 129, concededly a task incumbent on the Executive, may give rise, however,
to questions affecting a judiciary that should be kept independent. The all embracing
scope of the assailed legislation as far as all inferior courts from the Court of Appeals to
municipal courts are concerned, with the exception solely of the Sandiganbayan and the
Court of Tax Appeals, 5 9 gave rise, and understandably so, to misgivings as to its effect on
such cherished ideal. The rst paragraph of the section on the transitory provision reads:
Executive Order to be issued by the President. The Court of Appeals, the Courts of First
Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations Courts, the
Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the Municipal
Circuit Courts shall continue to function as presently constituted and organized, until the
completion of the reorganization provided in this Act as declared by the President. Upon
such declaration, the said courts shall be deemed automatically abolished and the
incumbents thereof shall cease to hold o ce." 6 0 There is all the more reason then why
this Court has no choice but to inquire further into the allegation by petitioners that the
security of tenure provision, an assurance of a judiciary free from extraneous in uences, is
thereby reduced to a barren form of words. The amended Constitution adheres even more
clearly to the long-established tradition of a strong executive that antedated the 1935
Charter. As noted in the work of former Vice-Governor Hayden, a noted political scientist,
President Claro M. Recto of the 1934 Constitutional Convention stressed such a concept
in his closing address. The 1935 Constitution, he stated, provided for "an Executive power
which, subject to the scalization of the Assembly, and of public opinion, will not only know
how to govern, but will actually govern, with a rm and steady hand, unembarrassed by
vexatious interferences by other departments, by unholy alliances with this and that social
group." 6 1 The above excerpt was cited with approval by Justice Laurel in Planas v. Gil. 6 2
The 1981 Amendments embody the same philosophy, this notwithstanding that once
again the principle of separation of powers, to quote from the same jurist as ponente in
Angara v. Electoral Commission, 6 3 "obtains not through express provision but by actual
division." 6 4 The President, under Article VII, "shall be the head of state and chief executive
of the Republic of the Philippines." 6 5 Moreover, all the powers he possessed under the
1935 Constitution are vested in him anew "unless the Batasang Pambansa provides
otherwise." 6 6 Article VII of the 1935 Constitution speaks categorically: "The Executive
power shall be vested in a President of the Philippines." 6 7 As originally framed, the 1973
Constitution created the position of President as the "symbolic head of state." 6 8 In
addition, there was a provision for a Prime Minister as the head of government to exercise
the executive power with the assistance of the Cabinet. 6 9 Clearly, a modi ed
parliamentary system was established. In the light of the 1981 amendments though, this
Court in Free Telephone Workers Union v. Minister of Labor 7 0 could state: "The adoption
of certain aspects of a parliamentary system in the amended Constitution does not alter
its essentially presidential character." 7 1 The retention, however, of the position of the
Prime Minister with the Cabinet, a majority of the members of which shall come from the
regional representatives of the Batasang Pambansa and the creation of an Executive
Committee composed of the Prime Minister as Chairman and not more than fourteen
other members at least half of whom shall be members of the Batasang Pambansa, clearly
indicate the evolving nature of the system of government that is now operative. 7 2 What is
equally apparent is that the strongest ties bind the executive and legislative departments.
It is likewise undeniable that the Batasang Pambansa retains its full authority to enact
whatever legislation may be necessary to carry out national policy as usually formulated in
a caucus of the majority party. It is understandable then why in Fortun v. Labang, 7 3 it was
stressed that with the provision transferring to the Supreme Court administrative
supervision over the Judiciary, there is a greater need "to preserve unimpaired the
independence of the judiciary, especially so at present, where to all intents and purposes,
there is a fusion between the executive and the legislative branches." 7 4
8. To be more speci c, petitioners contend that the abolition of the existing inferior
courts collides with the security of tenure enjoyed by incumbent Justices and judges
Under Article X, Section 7 of the Constitution. There was a similar provision in the 1935
Constitution. It did not, however, go as far as conferring on this Tribunal the power to
supervise administratively inferior courts. 7 5 Moreover, this Court is empowered "to
discipline judges of inferior courts and, by a vote of at least eight members, order their
dismissal." 7 6 Thus it possesses the competence to remove judges. Under the Judiciary
Act, it was the President who was vested with such power. 7 7 Removal is, of course, to be
distinguished from termination by virtue of the abolition of the o ce. There can be no
tenure to a non-existent o ce. After the abolition, there is in law no occupant. In case of
removal, there is an o ce with an occupant who would thereby lose his position. It is in
that sense that from the standpoint of strict law, the question of any impairment of
security of tenure does not arise. Nonetheless, for the incumbents of inferior courts
abolished, the effect is one of separation. As to its effect, no distinction exists between
removal and the abolition of the o ce. Realistically, it is devoid of signi cance. He ceases
to be a member of the judiciary. In the implementation of the assailed legislation,
therefore, it would be in accordance with accepted principles of constitutional
construction that as far as incumbent justices and judges are concerned, this Court be
consulted and that its view be accorded the fullest consideration. No fear need be
entertained that there is a failure to accord respect to the basic principle that this Court
does not render advisory opinions. No question of law is involved. If such were the case,
certainly this Court could not have its say prior to the action taken by either of the two
departments. Even then, it could do so but only by way of deciding a case where the matter
has been put in issue. Neither is there any intrusion into who shall be appointed to the
vacant positions created by the reorganization. That remains in the hands of the Executive
to whom it properly belongs. There is no departure therefore from the tried and tested
ways of judicial power. Rather what is sought to be achieved by this liberal interpretation is
to preclude any plausibility to the charge that in the exercise of the conceded power of
reorganizing the inferior courts, the power of removal of the present incumbents vested in
this Tribunal is ignored or disregarded. The challenged Act would thus be free from any
unconstitutional taint, even one not readily discernible except to those predisposed to view
it with distrust. Moreover, such a construction would be in accordance with the basic
principle that in the choice of alternatives between one which would save and another
which would invalidate a statute, the former is to be preferred. 7 8 There is an obvious way
to do so. The principle that the Constitution enters into and forms part of every act to
avoid any unconstitutional taint must be applied. Nuñez v. Sandiganbayan, 7 9 promulgated
last January, has this relevant excerpt: "It is true that other Sections of the Decree could
have been so worded as to avoid any constitutional objection. As of now, however, no
ruling is called for. The view is given expression in the concurring and dissenting opinion of
Justice Makasiar that in such a case to save the Decree from the dire fate of invalidity, they
must be construed in such a way as to preclude any possible erosion on the powers
vested in this Court by the Constitution. That is a proposition too plain to be contested. It
commends itself for approval." 8 0 Nor would such a step be unprecedented. The
Presidential Decree constituting Municipal Courts into Municipal Circuit Courts, specifically
provides: "The Supreme Court shall carry out the provisions of this Decree through
implementing orders, on a province-to-province basis." 8 1 It is true there is no such
provision in this Act, but the spirit that informs it should not be ignored in the Executive
Order contemplated under its Section 44. 8 2 Thus Batas Pambansa Blg. 129 could stand
the most rigorous test of constitutionality. 8 3
9. Nor is there anything novel in the concept that this Court is called upon to reconcile
or harmonize constitutional provisions. To be speci c, the Batasang Pambansa is
expressly vested with the authority to reorganize inferior courts and in the process to
abolish existing ones. As noted in the preceding paragraph, the termination of o ce of
their occupants, as a necessary consequence of such abolition, is hardly distinguishable
from the practical standpoint from removal, a power that is now vested in this Tribunal. It
is of the essence of constitutionalism to assure that neither agency is precluded from
acting within the boundaries of its conceded competence. That is why it has long been
well-settled under the constitutional system we have adopted that this Court cannot,
whenever appropriate, avoid the task of reconciliation. As Justice Laurel put it so well in
the previously cited Angara decision, while in the main, "the Constitution has blocked out
with deft strokes and in bold lines, allotment of power to the executive, the legislative and
the judicial departments of the government, the overlapping and interlacing of functions
and duties between the several departments, however, sometimes makes it hard to say
just where the one leaves off and the other begins." 8 4 It is well to recall another classic
utterance from the same jurist, even more emphatic in its a rmation of such a view,
moreover buttressed by one of those insights for which Holmes was so famous: "The
classical separation of government powers, whether viewed in the light of the political
philosophy of Aristotle, Locke, or Montesquieu, or of the postulations of Mabini, Madison,
or Jefferson, is a relative theory of government. There is more truism and actuality in
interdependence than in independence and separation of powers, for as observed by
Justice Holmes in a case of Philippine origin, we cannot lay down 'with mathematical
precision and divide the branches into watertight compartments' not only because 'the
great ordinances of the Constitution do not establish and divide elds of black and white'
but also because 'even the more speci c of them are found to terminate in a penumbra
shading gradually from one extreme to the other.'" 8 5 This too from Justice Tuazon,
likewise expressing with force and clarity why the need for reconciliation or balancing is
well-nigh unavoidable under the fundamental principle of separation of powers: "The
constitutional structure is a complicated system, and overlappings of governmental
functions are recognized, unavoidable, and inherent necessities of governmental
coordination." 8 6 In the same way that the academe has noted the existence in
constitutional litigation of right versus right, there are instances, and this is one of them,
where, without this attempt at harmonizing the provisions in question, there could be a
case of power against power. That we should avoid. LLjur
10. There are other objections raised but they pose no di culty. Petitioners would
characterize as an undue delegation of legislative power to the President the grant of
authority to x the compensation and the allowances of the Justices and judges thereafter
appointed. A more careful reading of the challenged Batas Pambansa Blg. 129 ought to
have cautioned them against raising such an issue. The language of the statute is quite
clear. The questioned provision reads as follows: "Intermediate Appellate Justices,
Regional Trial Judges, and Municipal Circuit Trial Judges shall receive such compensation
and allowances as may be authorized by the President along the guidelines set forth in
letter of Implementation No. 93 pursuant to Presidential Decree No. 985, as amended by
Presidential Decree No. 1597." 8 7 The existence of a standard is thus clear. The basic
postulate that underlies the doctrine of non-delegation is that it is the legislative body
which is entrusted with the competence to make laws and to alter and repeal them, the
test being the completeness of the statute in all its terms and provisions when enacted. As
pointed out in Edu v. Ericta: 8 8 "To avoid the taint of unlawful delegation, there must be a
standard, which implies at the very least that the legislature itself determines matters of
principle and lays down fundamental policy. Otherwise, the charge of complete abdication
may be hard to repel. A standard thus de nes legislative policy, marks its limits, maps out
its boundaries and speci es the public agency to apply it. It indicates the circumstances
under which the legislative command is to be effected. It is the criterion by which
legislative purpose may be carried out. Thereafter, the executive or administrative o ce
designated may in pursuance of the above guidelines promulgate supplemental rules and
regulations. The standard may be either express or implied. If the former, the non-
delegation objection is easily met. The standard though does not have to be spelled out
speci cally. It could be implied from the policy and purpose of the act considered as a
whole." 8 9 The undeniably strong links that bind the executive and legislative departments
under the amended Constitution assure that the framing of policies as well as their
implementation can be accomplished with unity, promptitude, and e ciency. There is
accuracy, therefore, to this observation in the Free Telephone Workers Union decision:
"There is accordingly more receptivity to laws leaving to administrative and executive
agencies the adoption of such means as may be necessary to effectuate a valid legislative
purpose. It is worth noting that a highly-respected legal scholar, Professor Jaffe, as early
as 1947, could speak of delegation as the 'dynamo of modern government.'" 9 0 He warned
against a "restrictive approach" which could be "a deterrent factor to much-needed
legislation." 9 1 Further on this point from the same opinion: "The spectre of the non-
delegation concept need not haunt, therefore, party caucuses, cabinet sessions or
legislative chambers." 9 2 Another objection based on the absence in the statute of what
petitioners refer to as a "de nite time frame limitation" is equally bereft of merit. They
ignore the categorical language of this provision: "The Supreme Court shall submit to the
President, within thirty (30) days from the date of the effectivity of this act, a sta ng
pattern for all courts constituted pursuant to this Act which shall be the basis of the
implementing order to be issued by the President in accordance with the immediately
succeeding section." 9 3 The rst sentence of the next Section is even more categorical:
Executive Order to be issued by the President." 9 4 Certainly, petitioners cannot be heard to
argue that the President is insensible to his constitutional duty to take care that the laws
be faithfully executed. 9 5 In the meanwhile, the existing inferior courts affected continue
functioning as before, "until the completion of the reorganization provided in this Act as
declared by the President. Upon such declaration, the said courts shall be deemed
automatically abolished and the incumbents thereof shall cease to hold o ce." 9 6 There is
no ambiguity. The incumbents of the courts thus automatically abolished "shall cease to
hold o ce." No fear need be entertained by incumbents whose length of service, quality of
performance, and clean record justify their being named anew, 9 7 in legal contemplation,
without any interruption in the continuity of their service. 9 8 It is equally reasonable to
assume that from the ranks of lawyers, either in the government service, private practice,
or law professors will come the new appointees. In the event that in certain cases, a little
more time is necessary in the appraisal of whether or not certain incumbents deserve
reappointment, it is not from their standpoint undesirable. Rather, it would be a
rea rmation of the good faith that will characterize its implementation by the Executive.
There is pertinence of this observation of Justice Holmes that even acceptance to the
generalization that courts ordinarily should not supply omissions in a law, a generalization
quali ed as earlier shown by the principle that to save a statute that could be done, "there
is no canon against using common sense in consuming laws as saying what they obviously
mean." 9 9 Where then is the unconstitutional flaw?
11. In the morning of the hearing of this petition on September 8, 1981, petitioners
sought to have the writer of this opinion and Justices Ramon C. Aquino and Ameur na
Melencio-Herrera disquali ed because the rst-named was the Chairman and the other
two, members of the Committee on Judicial Reorganization. At the hearing, the motion
was denied. It was made clear then and there that not one of the three members of the
Court had any hand in the framing or in the discussion of Batas Pambansa Blg. 129. They
were not consulted. They did not testify. The challenged legislation is entirely the product
of the efforts of the legislative body. 1 0 0 Their work was limited, as set forth in the
Executive Order, to submitting alternative plans for reorganization. That is more in the
nature of scholarly studies. That they undertook. There could be no possible objection to
such activity. Even since 1973, this Tribunal has had administrative supervision over
inferior courts. It has had the opportunity to inform itself as to the way judicial business is
conducted and how it may be improved. Even prior to the 1973 Constitution, it is the
recollection of the writer of this opinion that either the then Chairman or members of the
Committee on Justice of the then Senate of the Philippines 1 0 1 consulted members of the
Court in drafting proposed legislation affecting the judiciary. It is not inappropriate to cite
this excerpt from an article in the 1975 Supreme Court Review: "In the twentieth century
the Chief Justice of the United States has played a leading part in judicial reform. A variety
of conditions have been responsible for the development of this role, and foremost among
them has been the creation of explicit institutional structures designed to facilitate
reform." 1 0 2 Also: "Thus the Chief Justice cannot avoid exposure to and direct involvement
in judicial reform at the federal level and, to the extent issues of judicial federalism arise, at
the state level as well." 1 0 3
12. It is a cardinal article of faith of our constitutional regime that it is the people who
are endowed with rights, to secure which a government is instituted. Acting as it does
through public o cials, it has to grant them either expressly or impliedly certain powers.
Those they exercise not for their own bene t but for the body politic. The Constitution
does not speak in the language of ambiguity: "A public o ce is a public trust." 1 0 4 That is
more than a moral adjuration. It is a legal imperative. The law may vest in a public o cial
certain rights. It does so to enable them to perform his functions and ful ll his
responsibilities more e ciently. It is from that standpoint that the security of tenure
provision to assure judicial independence is to be viewed. It is an added guarantee that
justices and judges can administer justice undeterred by any fear of reprisal or untoward
consequence. Their judgments then are even more likely to be inspired solely by their
knowledge of the law and the dictates of their conscience, free from the corrupting
in uence of base or unworthy motives. The independence of which they are assured is
impressed with a signi cance transcending that of a purely personal right. As thus viewed,
it is not solely for their welfare. The challenged legislation was thus subjected to the most
rigorous scrutiny by this Tribunal, lest by lack of due care and circumspection, it allows the
erosion of that ideal so rmly embedded in the national consciousness. There is this
further thought to consider. Independence in thought and action necessarily is rooted in
one's mind and heart. As emphasized by former Chief Justice Paras in Ocampo v.
Secretary of Justice, 1 0 5 "there is no surer guarantee of judicial independence than the
God-given character and tness of those appointed to the Bench. The judges may be
guaranteed a xed tenure of o ce during good behavior, but if they are of such stuff as
allows them to be subservient to one administration after another, or to cater to the
wishes of one litigant after another, the independence of the judiciary will be nothing more
than a myth or an empty ideal. Our judges, we are con dent, can be of the type of Lord
Coke, regardless or in spite of the power of Congress — we do not say unlimited but as
herein exercised — to reorganize inferior courts." 1 0 6 That is to recall one of the greatest
Common Law jurists, who at the cost of his o ce made clear that he would not just blindly
obey the King's order but "will do what becomes [him] as a judge." So it was pointed out in
the first leading case stressing the independence of the judiciary, Borromeo v. Mariano. 1 0 7
The ponencia of Justice Malcolm identi ed good judges with "men who have a mastery of
the principles of law, who discharge their duties in accordance with law, who are permitted
to perform the duties of the o ce undeterred by outside in uence, and who are
independent and self-respecting human units in a judicial system equal and coordinate to
the other two departments of government." 1 0 8 There is no reason to assume that the
failure of this suit to annul Batas Pambansa Blg. 129 would be attended with deleterious
consequences to the administration of justice. It does not follow that the abolition in good
faith of the existing inferior courts except the Sandiganbayan and the Court of Tax Appeals
and the creation of new ones will result in a judiciary unable or unwilling to discharge with
independence its solemn duty or one recreant to the trust reposed in it. Nor should there
be any fear that less than good faith will attend the exercise of the appointing power
vested in the Executive. It cannot be denied that an independent and e cient judiciary is
something to the credit of any administration. Well and truly has it been said that the
fundamental principle of separation of powers assumes, and justi ably so, that the three
departments are as one in their determination to pursue the ideals and aspirations and to
ful ll the hopes of the sovereign people as expressed in the Constitution. There is wisdom
as well as validity to this pronouncement of Justice Malcolm in Manila Electric Co. v. Pasay
Transportation Company, 1 0 9 a decision promulgated almost half a century ago: "Just as
the Supreme Court, as the guardian of constitutional rights, should not sanction
usurpations by any other department of the government, so should it as strictly con ne its
own sphere of in uence to the powers expressly or by implication conferred on it by the
Organic Act." 1 1 0 To that basic postulate underlying our constitutional system, this Court
remains committed.
WHEREFORE, the unconstitutionality of Batas Pambansa Blg. 129 not having been shown,
this petition is dismissed. No costs. cdasia
Makasiar and Escolin, JJ ., concur.

Concepcion, Jr., J ., concurs in the result, the abolition being in good faith.
Fernandez, J ., concurs provided that in the task of implementation by the Executive as far
as the present Justices and judges who may be separated from their service, it would be in
accordance with the tenets of constitutionalism if this Court be consulted and that its view
be respected.
Separate Opinions
BARREDO , J ., concurring :
I join the majority of my brethren in voting that the Judiciary Reorganization Act of 1980,
Batas Pambansa Blg. 129, is not unconstitutional as a whole nor in any of its part.
The issue of unconstitutionality raised by petitioners relates particularly to Section 44 of
the Act which reads as follows:
"SEC. 44. Transitory provisions . — The provisions of this Act shall be
immediately carried out in accordance with an Executive Order to be issued by the
President. The Court of Appeals, the Courts of First Instance, the Circuit Criminal
Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian
Relations, the City Courts, the Municipal Circuit Courts shall continue to function
as presently constituted and organized, until the completion of the reorganization
provided in this Act as declared by the President. Upon such declaration, the said
courts shall be deemed automatically abolished and the incumbents thereof shall
cease to hold o ce. The cases pending in the old Courts shall be transferred to
the appropriate Courts constituted pursuant to this Act, together with the pertinent
functions, records, equipment, property and the necessary personnel.
"The applicable appropriations shall likewise be transferred to the appropriate

courts constituted pursuant to this Act, to be augmented as may be necessary
from the funds for organizational changes as provided in Batas Pambansa Blg.
80. Said funding shall thereafter be included in the annual General Appropriations
Act."
It is contended by petitioners that the provision in the above section which mandates that
"upon the declaration (by the President that the reorganization contemplated in the Act has
been completed), the said courts (meaning, the Court of Appeals and all other lower
courts, except the Sandiganbayan and the Court of Tax Appeals) shall be deemed
abolished and the incumbents thereof shall cease to hold o ce" trenches on all the
constitutional safeguards and guarantees of the independence of the judiciary, such as the
security of tenure of its members (Section 7, Article X of the Philippine Constitution of
1973), the prerogative of the Supreme Court to administratively supervise all courts and
the personnel thereof (Section 6, Id.) and principally, the power of the Supreme Court "to
discipline judges of inferior courts and, by a vote of at least eight Members, order their
dismissal." (Section 7, Id.)
On the other hand, respondents maintain that thru the above-quoted Section 44, the
Batasan did nothing more than to exercise the authority conferred upon it by Section 1 of
the same Article of the Constitution which provides that "(T)he Judicial power shall be
vested in one Supreme Court and in such inferior courts as may be established by law." In
other words, since all inferior courts are, constitutionally speaking, mere creatures of the
law (of the legislature), it follows that it is within the legislature's power to abolish or
reorganize them even if in so doing, it might result in the cessation from o ce of the
incumbents thereof before the expiration of their respective constitutionally- xed tenures.
Respondents emphasize that the legislative power in this respect is broad and indeed
plenary.
Viewing the problem before Us from the above perspectives, it would appear that our task
is either (1) to reconcile, on the one hand, the parliament's power of abolition and
reorganization with, on the other, the security of tenure of members of the judiciary and the
Supreme Court's authority to discipline and remove judges or (2) to declare that either the
power of the Supreme Court or of the Batasan is more paramount than that of the other. I
believe, however, that such a manner of looking at the issue that confronts Us only
confuses and compounds the task We are called upon to perform. For how can there be a
satisfactory and rational reconciliation of the pretended right of a judge to continue as
such, when the position occupied by him no longer exists? To suggest, as some do, that
the solution is for the court he is sitting in not to be deemed abolished or that he should in
some way be allowed to continue to function as judge until his constitutional tenure
expires is obviously impractical, if only because we would then have the absurd spectacle
of a judiciary with old and new courts functioning under distinct set-ups, such as a district
court continuing as such in a region where the other judges are regional judges or of
judges exercising powers not purely judicial which is offensive to the Constitution. The
other suggestion that the incumbent of the abolished court should be deemed appointed
to the corresponding new court is even worse, since it would deprive the appointing
authority, the President, of the power to make his own choices and would, furthermore,
amount to an appointment by legislation, which is a constitutional anachronism. More on
this point later. cdasia
Inasmuch as pursuant to the analysis of the majority of the Members of this Court, in fact
and in law, the structure of judicial system created by Batas Pambansa 129 is substantially
different from that under the Judiciary Act of 1948, as amended, hence the courts now
existing are actually being abolished, why do We have to indulge in any reconciliation or
feel bound to determine whose power, that of the Batasang Pambansa or that of this
Court, should be considered more imperious? It being conceded that the power to create
or establish carries with it the power to abolish, and it is a legal axiom, or at least a
pragmatic reality, that the tenure of the holder of an o ce must of necessity end when his
o ce no longer exists, as I see it, We have no alternative than to hold that petitioners'
invocation of the independence-of-the-judiciary principle of the Constitution is unavailing in
the cases at bar. It is as simple as that. I might hasten to add, in this connection, that to
insist that what Batas Pambansa 129 is doing is just a renaming, and not a substantial and
actual modi cation or alteration of the present judicial structure or system, assuming a
close scrutiny might somehow support such a conclusion, is pure wishful thinking, it being
explicitly and unequivocally provided in the section in question that said courts "are
deemed abolished" and further, as if to make it most unmistakably emphatic, that "the
incumbents thereof shall cease to hold o ce." Dura lex, sed lex. As a matter of fact, I
cannot conceive of a more emphatic way of manifesting and conveying the determined
legislative intent about it.
Now, why am I yielding to the above reasoning and conclusion? Why don't I insist on
championing the cause of the independence of the judiciary by maintaining that the
constitutional safeguards thereof I have already enumerated earlier must be respected in
any reorganization ordained by the parliament? My answer is simple. Practically all the
Members of the Court concede that what is contemplated is not only general
reorganization but abolition — in other words, not only a rearrangement or remodelling of
the old structure but a total demolition thereof to be followed by the building of a new and
different one. I am practically alone in contemplating a different view. True, even if I should
appear as shouting in the wilderness, I would still make myself a hero in the eyes of many
justices and judges, members of the bar and concerned discerning citizens, all lovers of
the judicial independence, but understandably, I should not be, as I am not, disposed to
play such a role virtually at the expense not only of my distinguished colleagues but of the
Batasang Pambansa that framed the law and, most of all, the President who signed and,
therefore, sanctioned the Act as it is, unless I am absolutely sure that my position is
formidable, unassailable and beyond all possible contrary ratiocination, which I am not
certain of, as I shall demonstrate anon.
To start with, the jurisprudence, here and abroad, touching on the question now before Us
cannot be said to be clear and consistent, much less unshakable and indubitably de nite
either way. None of the local cases 1 relied upon and discussed by the parties and by the
Members of the Court during the deliberations, such as Borromeo, 2 Ocampo, 3 Zandueta,
4 Brillo, 5 etc. can, to my mind, really serve as reliable pole stars that could lead me to
certainty of correctness.
Of course, my instinct and passion for an independent judiciary are uncompromising and
beyond diminution. Indeed, my initial reactions, publicly known, about Batas Pambansa
129 explaining academically its apparent tendency to invade the areas of authority of the
Supreme Court, not to speak of its dangerously impairing the independence of the
judiciary, must have, I imagine, created the impression that I would vote to declare the law
unconstitutional. But, during the deliberations of the Court, the combined wisdom of my
learned colleagues was something I could not discount or just brush aside. Pondering and
thinking deeper about all relevant factors, I have come to the conviction that at least on
this day and hour there are justi able grounds to uphold the Act, if only to try how it will
operate so that thereby the people may see that We are one with the President and the
Batasan in taking what appear to be immediate steps needed to relieve the people from a
fast spreading cancer in the judiciary of our country.
Besides, the Philippines has somehow not yet returned to complete normalcy. The
improved national discipline, so evident during the earlier days of martial law, has declined
at a quite discernible degree. Different sectors of society are demanding urgent reforms in
their respective elds. And about the most vehement and persistent, loud and clear,
among their gripes, which as a matter of fact is common to all of them, is that about the
deterioration in the quality of performance of the judges manning our courts and the slow
and dragging pace of pending judicial proceedings. Strictly speaking, this is, to be sure,
something that may not necessarily be related to lack of independence of the judiciary. It
has more to do with the ineptness and/or corruption among and corruptibility of the men
sitting in the courts in some parts of the country. And what is worse, while in the
communities concerned, the malady is known to factually exist and is actually graver and
widespread, very few, if any, individuals or even associations and organized groups, truly
incensed and anxious to be of help, have the courage and possess the requisite legal
evidence to come out and le the corresponding charges with the Supreme Court. And I
am not yet referring to similar situations that are not quite openly known but nevertheless
just as deleterious. On the other hand, if all these intolerable instances should actually be
formally brought to the Supreme Court, it would be humanly impossible for the Court to
dispose of them with desirable dispatch, what with the thousands of other cases it has to
attend to and the rather cumbersome strict requirements of procedural due process it has
to observe in each and every such administrative case, all of which are time consuming.
Verily, under the foregoing circumstances, it may be said that there is justi cation for the
patience of the people about the possibility of early eradication of this disease or evil in
our judiciary pictured above to be nearing the breaking point.
Withal, we must bear in mind that judicial reorganization becomes urgent and inevitable
not alone because of structural inadequacies of the system or of the cumbersomeness
and technicality-peppered and dragging procedural rules in force, but also when it
becomes evident that a good number of those occupying positions in the judiciary, make a
mockery of justice and take advantage of their o ce for sel sh personal ends and yet, as
already explained, those in authority cannot expeditiously cope with the situation under
existing laws and rules. It is my personal assessment of the present situation in our
judiciary that its reorganization has to be of necessity two-pronged, as I have just
indicated, for the most ideal judicial system with the most perfect procedural rules cannot
satisfy the people and the interests of justice unless the men who hold positions therein
possess the character, competence and sense of loyalty that can guarantee their devotion
to duty and absolute impartiality, nay, impregnability to all temptations of graft and
corruption, including the usual importunings and the fearsome albeit improper pressures
of the powers that be. I am certain that the Filipino people feel happy that Batas Pambansa
129 encompasses both of these objectives, which indeed are aligned with the foundation
of the principle of independence of the judiciary.
LLphil
The above premises considered, I have decided to tackle our problem from the viewpoint
of the unusual situation in which our judiciary is presently perilously situated. Needless to
say, to all of us, the Members of the Court, the constitutional guarantees of security of
tenure and removal-only-by the Supreme Court, among others, against impairment of the
independence of the judiciary, which is one of the bedrocks and, therefore, of the essence
in any "democracy under a regime of justice, peace, liberty and equality," (Preamble of the
1973 Constitution), are priceless and should be defended, most of all by the Supreme
Court, with all the wisdom and courage God has individually endowed to each of Us. Withal,
we are all conscious of the fact that those safeguards have never been intended to place
the person of the judge in a singular position of privilege and untouchability, but rather, that
they are essentially part and parcel of what is required of an independent judiciary where
judges can decide cases and do justice to everyone before them ruat caelum. However, We
nd Ourselves face to face with a situation in our judiciary which is of emergency
proportions and to insist on rationalizing how those guarantees should be enforced under
such circumstance seem to be di cult, aside from being controversial. And so, in a real
sense, We have to make a choice between adhering to the strictly legalistic reasoning
pursued by petitioners, on the one hand, and the broader and more practical approach,
which as I have said is within the spirit at least of the Constitution.
My concept of the Constitution is that it is not just a cluster of high sounding verbiages
spelling purely idealism and nobility in the recognition of human dignity, protection of
individual liberties and providing security and promotion of the general welfare under a
government of laws. With all emphasis and vehemence, I say that the fundamental law of
the land is a living instrument which translates and adapts itself to the demands of
obtaining circumstances. It is written for all seasons, except for very unusual instances
that human ratiocination cannot justify to be contemplated by its language even if read in
its broadest sense and in the most liberal way. Verily, it is paramount and supreme in
peace and in war, but even in peace grave critical situations arise demanding recourse to
extraordinary solutions. Paraphrasing the Spanish adage, "Grandes males, grandes
remedios," such in ordinary problems justify exceptional remedies. And so, history records
that in the face of grave crises and emergencies, the most constitutionally idealistic
countries have, at one time or another, under the pressure of pragmatic considerations,
adopted corresponding realistic measures, which perilously tether along the periphery of
their Charters, to the extent of creating impressions, of course erroneous, that the same
had been transgressed, although in truth their integrity and imperiousness remained
undiminished and unimpaired.
The Philippines has but recently had its own experience of such constitutional approach.
When martial law was proclaimed here in 1972, there were those who vociferously shouted
not only that the President had acted arbitrarily and without the required factual bases
contemplated in the Commander-in-Chief clause of the 1935 Constitution, but more, that
he had gone beyond the traditional and universally recognized intent of said clause by
utilizing his martial law powers not only to maintain peace and tranquility and preserve and
defend the integrity and security of the state but to establish a New Society. The critics
contended that martial law is only for national security, not for the imposition of national
discipline under a New Society.
Due to its relevancy to Our present discussion, it is well for everyone to bear in mind that in
this jurisdiction, this concept of martial law has already been upheld several times by this
Court. I, for one, accepted such a construction because I rmly believe that to impose
martial law for the sole end of suppressing an insurrection or rebellion without
coincidentally taking corresponding measures to eradicate the root causes of the uprising
is utter folly, for the country would still continue to lay open to its recurrence.
I have made the foregoing discourse, for it is fundamentally in the light of this Court's
doctrines about the imposition of martial law as I have stated that I prefer to base this
concurrence. To put it differently, if indeed there could be some doubt as to the
correctness of this Court's judgment that Batas Pambansa 129 is not unconstitutional,
particularly its Section 44, I am convinced that the critical situation of our judiciary today
calls for solutions that may not in the eyes of some conform strictly with the letter of the
Constitution but indubitably justi ed by its spirit and intent. As I have earlier indicated, the
Charter is not just a construction, of words to whose literal ironclad meanings we must
feel hidebound, without regard to every Constitution's desirable inherent nature of
adjustability and adaptability to prevailing situations so that the spirit and fundamental
intent and objectives of the framers may remain alive. Batas Pambansa 129 is one such
adaptation that comes handy for the attainment of the transcendental objectives it seeks
to pursue. While, to be sure, it has the effect of factually easing out some justices and
judges before the end of their respective constitutional tenure sans the usual
administrative investigation, the desirable end is achieved thru means that, in the light of
the prevailing conditions, is constitutionally permissible.LLpr
Before closing, it may not be amiss for me to point out that Batas Pambansa 129, aside
from what has been discussed about its effect on the guarantees of judicial independence,
also preempts, in some of its provisions, the primary rule-making power of the Supreme
Court in respect to procedure, practice and evidence. With the pardon of my colleagues, I
would just like to say that the Court should not decry this development too much. After all,
the legislature is expressly empowered by the Charter to do so, (Section 5(5), Article X of
the Constitution of 1973) so much so, that I doubt if the Court has any authority to alter or
modify any rule the Batasang Pambansa enunciates. Truth to tell, as Chairman of the
Committee on the Revision of the Rules of Court, for one reason or another, principally the
lack of a clear consensus as to what some of my colleagues consider very radical
proposals voiced by me or my committee, We have regrettably procrastinated long
enough in making our procedural rules more practical and more conducive to speedier
disposal and termination of controversies by dealing more with substantial justice.
So also have We, it must be confessed, failed to come up to expectations of the framers of
the Constitution in our ways of disposing of administrative complaints against erring and
misconducting judges. Of course, We can excuse Ourselves with the explanation that not
only are We overloaded with work beyond human capability of its being performed
expeditiously, but that the strict requisites of due process which are time consuming have
precluded Us from being more expeditious and speedy.
I feel I must say all of these, because if the above-discussed circumstances have not
combined to create a very critical situation in our judiciary that is making the people lose
its faith and con dence in the administration of justice by the existing courts, perhaps the
Court could look with more sympathy at the stand of petitioners. I want all and sundry to
know, however, that notwithstanding this decision, the independence of the judiciary in the
Philippines is far from being insubstantial, much less meaningless and dead. Batas
Pambansa 129 has precisely opened our eyes to how, despite doubts and misgivings, the
Constitution can be so construed as to make it possible for those in authority to answer
the clamor of the people for an upright judiciary and overcome constitutional roadblocks
more apparent than real.
To those justices, judges, members of the bar and concerned citizens whose eyes may be
dimming with tears of disappointment and disenchantment because of the stand I have
chosen to adopt in these cases, may I try to assuage them by joining their fervent prayers
that some other day, hopefully in the near future, Divine Providence may dictate to another
constitutional convention to write the guarantees of judicial independence with ink of
deeper hue and words that are definite, clear, unambiguous and unequivocal, in drawing the
line of demarcation between the Parliament and the Judiciary in the manner that in His
In nite wisdom would most promote genuine and impartial justice for our people, free, not
only from graft, corruption, ineptness and incompetence but even from the tentacles of
interference and insiduous in uence of the political powers that be. Presently, I am
constrained from going along with any other view than that the Constitution allows
abolition of existing courts even if the effect has to be the elimination of any incumbent
judge and the consequent cutting of his constitutional tenure of office. cdasia
I cannot close this concurrence without referring to the apprehensions in some quarters
about the choice that will ultimately be made of those who will be eased out of the
judiciary in the course of the implementation of Batas Pambansa 129. By this decision, the
Court has in factual effect albeit not in constitutional conception yielded generally to the
Batasang Pambansa, and more speci cally to the President, its own constitutionally
conferred power of removal of judges. Section 44 of the Batasan's Act declares that all of
them shall be deemed to have ceased to hold o ce, leaving it to the President to appoint
those whom he may see t to occupy the new courts. Thus, those who will not be
appointed can be considered as "ceasing to hold their respective o ces," or, as others
would say they would be in fact removed. How the President will make his choices is
beyond Our power to control. But even if some may be eased out even without being duly
informed of the reason therefor, much less being given the opportunity to be heard, the
past actuations of the President on all matters of deep public interest should serve as
su cient assurance that when he ultimately acts, he will faithfully adhere to his solemn
oath "to do justice to every man," hence, he will equip himself rst with the fullest reliable
information before he acts. This is not only my individual faith founded on my personal
acquaintances with the character and sterling qualities of President Ferdinand E. Marcos. I
dare say this is the faith of the nation in a man who has led it successfully through crises
and emergencies, with justice to all, with malice towards none. I am certain, the President
will deal with each and every individual to be affected by this reorganization with the best
light that God will give him every moment he acts in each individual case as it comes for
his decision.
AQUINO , J ., concurring :
I concur in the result. The petitioners led this petition for declaratory relief and prohibition
"to declare the Judiciary Reorganization Act of 1980 (Batas Pambansa Blg. 129)
unconstitutional."
The petition should have been dismissed outright because this Court has no jurisdiction to
grant declaratory relief and prohibition is not the proper remedy to test the
constitutionality of the law. The petition is premature. No jurisdictional question is
involved.
There is no justiciable controversy wherein the constitutionality of the said law is in issue.
It is presumed to be constitutional. The lawmaking body before enacting it looked into the
constitutional angle.
Seven of the eight petitioners are practising lawyers. They have no personality to assail the
constitutionality of the said law even as taxpayers.
The eighth petitioner, Gualberto J. de la Llana, a city judge (who in 1977 led a petition for
declaratory relief assailing Presidential Decree No. 1229, which called for a referendum, De
la Llana vs. Comelec, 80 SCRA 525), has no cause of action for prohibition. He is not being
removed from his position.

The Judiciary Reorganization Law was enacted in utmost good faith and not "to cloak an
unconstitutional and evil purpose." As ably expounded by the Chief Justice, in enacting the
said law, the lawmaking body acted within the scope of its constitutional powers and
prerogatives.
GUERRERO , J ., concurring :
I concur with my distinguished and learned colleagues in upholding the constitutionality of

the Judiciary Reorganization Act of 1980. For the record, however, I would like to state my
personal convictions and observations on this case, a veritable landmark case, for
whatever they may be worth. llcd
The legal basis of the Court's opinion rendered by our esteemed Chief Justice having been
exhaustively discussed and decisively justi ed by him, a highly-respected expert and
authority on constitutional law, it would be an exercise in duplication to reiterate the same
cases and precedents. I am then constrained to approach the problem quite differently,
not through the classic methods of philosophy, history and tradition, but following what
the well-known jurist, Dean Pound, said that "the most signi cant advance in the modern
science of law is the change from the analytical to the functional attitude." 1 And in
pursuing this direction, I must also reckon with and rely on the ruling that "another guide to
the meaning of a statute is found in the evil which it is designed to remedy, and for this the
court properly looks at contemporaneous events, the situation as it existed, and as it was
pressed upon the attention of the legislative body." 2
I have no doubt in my mind that the institutional reforms and changes envisioned by the
law are clearly conducive to the promotion of national interests. The objectives of the
legislation, namely: (a) An institutional restructuring by the creation of an Intermediate
Appellate Court, thirteen (13) Regional Trial Courts, Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts; (b) A re-apportionment of jurisdiction
geared towards greater e ciency; (c) a Simpli cation of procedures; and (d) The abolition
of the inferior courts created by the Judiciary Act of 1948 and other statutes, as approved
by the Congress of the Philippines 3 are undoubtedly intended to improve the regime of
justice and thereby enhance public good and order. Indeed, the purpose of the Act as
further stated in the Explanatory Note, which is "to embody reforms in the structure,
organization and composition of the Judiciary, with the aim of improving the
administration of justice, of decongesting judicial dockets, and coping with the more
complex problems on the present and forseeable future" cannot but "promote the welfare
of society, since that is the final cause of law." 4
Hence, from the standpoint of the general utility and functional value of the Judiciary
Reorganization Act, there should be no di culty, doubt or disbelief in its legality and
constitutionality. That there are ills and evils plaguing the judicial system is undeniable. The
notorious and scandalous congestion of court dockets is too well-known to be ignored as
are the causes which create and produce such anomaly. Evident is the need to look for
devices and measures that are more practical, workable and economical. 5
From the gures alone (301,497 pending cases in 1976; 351,943 in 1977; 404,686 in
1978; 426,911 in 1979; 441,332 in 1980; and 450,063 as of February 3, 1982) 6 the
congested character of court dockets rising year after year is staggering and enormous,
looming like a legal monster.
But greater than the need to dispense justice speedily and promptly is the necessity to
have Justices and Judges who are fair and impartial, honest and incorruptible, competent
and e cient. The general clamor that the prestige of the Judiciary today has deteriorated
and degenerated to the lowest ebb in public estimation is not without factual basis.
Records in the Supreme Court attest to the un tness and incompetence, corruption and
immorality of many dispensers of justice. According to the compiled data, the total
number of Justices and Judges against whom administrative charges have been led for
various offenses, misconduct, venalities and other irregularities reaches 322 . Of this total,
8 are Justices of the Court of Appeals, 119 CFI Judges, 2 Criminal Circuit Court Judges, 8
Car Judges, 1 Juvenile and Domestic Relations Court Judge, 38 City Judges, and 146
Municipal Judges.
The Supreme Court had found 1 0 2 of them guilty and punished them with either
suspension, admonition, reprimand or ne. The number includes 1 CA Justice, 35 CFI
Judges, 1 CCC Judge, 3 CAR Judges, 1 JDRC Judge, 9 City Judges and 53 Municipal
Judges. cdasia
Seventeen (17) Judges have been ordered dismissed and separated from the service. And
these are 3 CFI, 1 CAR, 1 City Judge and 12 Municipal Judges.
Going over these administrative proceedings, it took an average of two-year period from
the ling of the charge to the dismissal of the respondent. In one case, the proceedings
were terminated after seven years. How long the pending administrative cases will be
disposed of, only time will tell as an increasing number of administrative cases are being
filed by victims of judicial misconduct, abuse and arbitrariness.
Excepting those who have been punished and dismissed from the service, there are many
who have been castigated and censured in nal judgments of the Supreme Court upon
appeal or review of the decisions, orders and other acts of the respondent courts, Justices
and Judges. To cite a few cases, Our decisions have categorically pronounced
respondents' actuations, thus: "deplorable, giving no credit to the Judiciary" 7 ; "everything
was irregular and violative of all pertinent and applicable rules. The whole proceedings
looked no more than a pre-arranged compromise between the accused and the judge to
aunt the law and every norm of propriety and procedure" 8 ; "there was a deliberate failure
of respondent Judge to respect what is so clearly provided in the Rules of Court" 9 ; "It is
unfortunate that respondent Judge failed to acquaint himself with, or misinterpreted, those
controlling provisions and doctrines" 1 0 ; "The failure of the respondent Municipal Judge to
yield obedience to authoritative decisions of the Supreme Court and of respondent Court
of First Instance Judge and his deplorable insistence on procedural technicalities was
called down in L-49828, July 25, 1981. For peremptorily dismissing the third party
complaint on the ground that the motion to dismiss was 'well-taken' and respondent
Judge did not elaborate, the Court remarked: "May his tribe vanish." 1 1 In one case, We
noted "There is here something unusual, but far from palliating the gravity of the error
incurred, it merely exacerbated it. . . . it did render the due process requirement nugatory,
for instead of a fair and impartial trial, there was an idle form, a useless ceremony." 12
It is dishonorable enough to be publicly and o cially rebuked but to allow these Judges
and their ilk to remain and continue to preside in their courtrooms is a disgrace to the
Judiciary. It is to be deplored that the Supreme Court has not found time to exercise its
power and authority in the premises, for no charges or proceedings have been instituted
against them. We have a list of these crooked Judges whose actuations have been found
to be patently wrong and manifestly indefensible. There ought to be no objection or
compunction in weeding them out from the service. If they are not booted out now, it will
take from here to eternity to clean this Augean stable.
Candidly, one reason for writing this concurring opinion is to call attention to these evils,
abuses and wrongs which are surreptitiously but surely destroying the trust and faith of
the people in the integrity of the entire Judiciary. Some members of the Court felt that
these revelations would be like washing dirty linen in public. But these facts are of public
and official records, nay court cases, and sooner or later, Truth will come out.
In the light of these known evils and in rmities of the judicial system, it would be absurd
and unreasonable to claim that the legislators did not act upon them in good faith and
honesty of purpose and with legitimate ends. It is presumed that o cial duty has been
regularly performed. 1 3 The presumption of regularity is not con ned to the acts of the
individual o cers but also applies to the acts of boards, such as administrative board or
bodies. and to acts of legislative bodies. 1 4 Good faith is always to be presumed in the
absence of proof to the contrary, of which there is none in the case at bar. It could not be
otherwise if We are to accord as We must, full faith and credit to the lawmakers' deep
sense of public service and the judicious exercise of their high o ce as the duly-elected
representatives of the people. LLjur
It is conceded that the abolition of an o ce is legal if attendant with good faith. 1 5 The
question of good faith then is the crux of the con ict at bar. Good faith in the enactment of
the law does not refer to the wisdom of the measure, the propriety of the Act, or to its
expediency. The questions raised by petitioners and amicus curiae for their cause, viz: Why
abolish all the courts? Why legislate out the judges? Why not amend the Rules of Court
only? Is abolition of all courts the proper remedy to weed out corrupt and mis ts in our
Judiciary? — may not be inquired into by Us. "It is not the province of the courts to
supervise legislation and keep it within the bounds of propriety and common sense. That
is primarily and exclusively a legislative concern." 1 6 The Courts "are not supposed to
override legitimate policy and . . . never inquire into the wisdom of the law." 1 7 Chief Justice
Fernando who penned the Morfe decision, writes that while "(i)t is thus settled, to
paraphrase Chief Justice Concepcion in Gonzales v. Commission on Elections, that only
congressional power or competence, not the wisdom of the action taken, may be the basis
for declaring a statute invalid," 1 8 he adds that it is "useful to recall what was so clearly
stated by Laurel that 'the Judiciary in the determination of actual cases and controversies
must re ect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government.'" 1 9 in any
case, petitioners have not shown an iota of proof of bad faith. There is no factual
foundation of bad faith on record. And I do not consider the statement in the sponsorship
speech for Cabinet Bill No. 42 of Minister of Justice Ricardo J. Puno that the Bill would be
a more e cient vehicle of "eliminating incompetent and un t Judges" as indicative of
impermissible legislative motive. 2 0
It may be true that while the remedy or solution formulated by the legislation will eradicate
hopefully or at least minimize the evils and ills that infect and pester the judicial body, it will
result in the actual removal of the Justices of the Court of Appeals and Judges of the
lower courts. It is also true that whether it is termed abolition of o ce or removal from
o ce, the end-result is the same — termination of the services of these incumbents.
Indeed, the law may be harsh, but that is the law. Dura lex sed lex.
The Justices and Judges directly affected by the law, being lawyers, should know or are
expected to know the nature and concept of a public o ce. It is created for the purpose of
effecting the ends for which government has been instituted, which are for the common
good, and not the pro t, honor or private interest of any one man, family or class of men. In
our form of government, it is fundamental that public o ces are public trust, and that the
person to be appointed should be selected solely with a view to the public welfare. 2 1 In
the last analysis, a public office is a privilege in the gift of the State. 2 2
There is no such thing as a vested interest or an estate in an o ce, or even an absolute
right to hold o ce. Excepting constitutional o ces which provide for special immunity as
regards salary and tenure, no one can be said to have any vested right in an o ce or its
salary. When an o ce is created by the Constitution, it cannot be abolished by the
legislature, but when created by the State under the authority of the Constitution, it may be
abolished by statute and the incumbent deprived of his o ce. 2 3 Acceptance of a judicial
appointment must be deemed as adherence to the rule that "when the court is abolished,
any unexpired term is abolished also. The Judge of such a court takes o ce with that
encumbrance and knowledge." 2 4 "The Judge's right to his full term and his full salary are
not dependent alone upon his good conduct, but also upon the contingency that the
legislature may for the public good, in ordaining and establishing the courts, from time to
time consider his office unnecessary and abolish it." 25
The removal from o ce of the incumbent then is merely incidental to the valid act of
abolition of the o ce as demanded by the superior and paramount interest of the people.
The bad and the crooked Judges must be removed. The good and the straight, sober
Judges should be reappointed but that is the sole power and prerogative of the President
who, I am certain, will act according to the best interest of the nation and in accordance
with his solemn oath of o ce "to preserve and defend its Constitution, execute its laws, do
justice to everyone . . ." There and then the proper balance between the desire to preserve
private interest and the desideratum of promoting the public good shall have been struck.
26
The Supreme Court has been called the conscience of the Constitution. It may be the last
bulwark of constitutional government. 2 7 It must, however, be remembered 'that
legislatures are ultimate guardians of the liberties and welfare of the people in quite as
great a degree as courts." 2 8 The responsibility of upholding the Constitution rests not on
the courts alone but on the legislatures as well. It adheres, therefore, to the well-settled
principle that "all reasonable doubts should be resolved in favor of the constitutionality of
a statute" for which reason it will not set aside a law as violative of the Constitution "except
in a clear case." 29
Finally, I view the controversy presented to Us as a con ict of opinions — on judicial
independence, whether impaired or strengthened by the law; on reorganization of the
courts, whether abolition of o ce or removal therefrom; and on delegation of legislative
power, whether authorized or unauthorized. Without detracting from the merits, the force
and brilliance of their advocacies based on logic, history and precedents, I choose to stand
on the social justi cation and the functional utility of the law to uphold its constitutionality.
In the light of the contemporaneous events from which the New Republic emerged and
evolved new ideals of national growth and development, particularly in law and
government, a kind or form of judicial activism, perhaps similar to it, is necessary to justify
as the ratio decidendi of Our judgment. cdasia
This is the time and the moment to perform a constitutional duty to a x my imprimatur
and affirmance to the law, hopefully an act of proper judicial statesmanship.
ABAD SANTOS , J ., concurring and dissenting :
I agree with the learned Chief Justice of the Philippines that Batas Pambansa Blg. 129 is
not unconstitutional. Unlike Oscar Wilde, I choose not to yield to temptation by
embellishing my concurrence lest I be accused of bringing coal to Newcastle. Accordingly,
I will simply vote to dismiss the petition.
However, I cannot agree with the Chief Justice when he says:
". . . In the implementation of the assailed legislation, therefore, it would be in
accordance with accepted principles of constitutional construction that as far as
incumbent justices and judges are concerned, this Court be consulted and that its
view be accorded the fullest consideration. There would be no plausibility then to
the allegation that there is an unconstitutional taint to the challenged Act.
Moreover, such a construction would be in accordance with the basic principle
that in the choice of alternatives between one which would save and another
which would invalidate a statute, the former is to be preferred."
It has already been ruled that the statute does not suffer from any constitutional in rmity
because the abolition of certain judicial o ces was done in good faith. This being the
case, I believe that the Executive is entitled to exercise its constitutional power to ll the
newly created judicial positions without any obligation to consult with this Court and to
accord its views the fullest consideration. To require consultation will constitute an
invasion of executive territory which can be resented and even repelled. The implicit
suggestion that there could be an unconstitutional implementation of the questioned
legislation is not congruent with the basic conclusion that it is not unconstitutional.
DE CASTRO , J ., concurring :
I concur in the declaration that the law is not unconstitutional.

May I, however, submit this separate opinion more to avoid being misunderstood by my
brethren in the judiciary as not feeling for them as much concern as I should for their
security of tenure which is raised as the main argument against the constitutionality of the
law, than by way of giving added force or support to the main opinion so well-written by
Our learned Chief Justice in his usual scholarly fashion. I, therefore, limit myself to a
discussion that the assailed statute is not unconstitutional without having to suggest how
it may be implemented in order that it could stand the most rigid test of constitutionality,
for in that area, what is involved is purely an executive act of the President in whose
wisdom, patriotism and sense of justice We should trust in how he would ful ll his sworn
duties to see that the laws are faithfully executed and to do justice to every man.
Moreover, while I also concur in the dismissal of the petition, I do so on the additional
ground that petitioners have not ful lled all the requisites for the exercise by this Court of
its power of judicial inquiry — the power to declare a law unconstitutional.
I
The creation and organization of courts inferior to the Supreme Court is a constitutional
prerogative of the legislature. This prerogative is plenary and necessarily implies the
power to reorganize said courts, and in the process, abolish them to give way to new or
substantially different ones. To contend otherwise would be to forget a basic doctrine of
constitutional law that no irrepealable laws shall be passed. 1
The power to create courts and organize them is necessarily the primary authority from
which would thereafter arise the security of tenure of those appointed to perform the
functions of said courts. In the natural order of things, therefore, since the occasion to
speak of security of tenure of judges arises only after the courts have rst been brought
into being, the right to security of tenure takes a secondary position to the basic and
primary power of creating the courts to provide for a fair and strong judicial system. If the
legislature, in the exercise of its authority, deems it wise and urgent to provide for a new
set of courts, and in doing so, it feels the abolition of the old courts would conduce more
to its objective of improving the judiciary and raising its standard, the matter involved is
one of policy and wisdom into which the courts, not even the Supreme Court, cannot
inquire, much less interfere with. By this secondary position it has to the primary power of
the legislature to create courts, the security of tenure given to the incumbents should not
be a legal impediment to the exercise of that basic power of creating the statutory courts
which, by necessary implication, includes the power to abolish them in order to create new
ones. This primary legislative power is a continuing one, and the resultant right of security
of tenure of those appointed to said courts could not bring about the exhaustion of that
power. Unquestionably, the legislature can repeal its own laws, and that power can never
be exhausted without, as a consequence, violating a fundamental precept of constitutional
and representative government that no irrepealable laws shall be passed.
If the creation of courts is a legislative prerogative their abolition is, therefore, a matter of
legislative intent. It involves the exercise of legislative power, an act of legislation which
generally concerns policy in the formation of which the courts have no say. Initially, when
the legislature creates the courts, it suffers from no limitation arising from the necessity of
respecting the security of tenure of judges who are not yet there. This inherent character of
fullness and plenitude of the power to create and abolish courts does not change when
that same power is once more exercised thereafter, as the need therefor is felt. Which only
goes to show that when done in good faith and motivated solely by the good and the well-
being of the people, the exercise of the power is not meant to be restricted, curtailed,
much less exhausted by the so-called judicial security of tenure.
The passage of the Judiciary Reorganization Act of 1980 is no more than the exercise of
the power vested by the Constitution on the legislative body of the Republic as described
above. That power carries with it the duty and responsibility of providing the people with
the most effective and e cient system of administration of justice. This is by far of more
imperative and transcendental importance than the security of tenure of judges which,
admittedly, is one of the factors that would conduce to independence of the judiciary — but
rst of all, a good, e cient and effective judiciary. A judiciary wanting in these basic
qualities does not deserve the independence that is meant only for a judiciary that can
serve best the interest and welfare of the people which in the most primordial and
paramount consideration, not a judiciary in which the people's faith has been eroded, a
condition which the security of tenure, in some instances, may even be contributory. LLphil
In enacting the Judiciary Reorganization Act of 1980, the legislature is presumed to have
been motivated by no other objective than to provide the people the kind of judicial
machinery that would best serve their interest and welfare, in its belief that the present
machinery is falling short of that measure of public service. It should, likewise, be
presumed that it has been led to this low estimate of the utility and effectiveness of the
present set-up of the judiciary after informing itself, with the facilities at its command,
such as the power of legislative investigation, of the actual condition of the courts,
particularly as to whether they continue to enjoy the trust, faith and con dence of the
public, and what the cause or causes are of their erosion, if not loss, as is the keenly
perceptible feeling of the people in general. Responsibility for this more or less extensive
slowdown of the delivery of judicial service can be laid on no other than neither of the two
components of a court — the procedural laws or rules that govern the workings of the
courts, or the persons executing or applying them — or both.
When two interests conflict as what had given rise to the present controversy — the duty of
the legislature to provide society with a fair, e cient and effective judicial system, on one
hand, and the right of judges to security of tenure, on the other, the latter must of necessity
yield to the former. One involves public welfare and interest more directly and on a greater
magnitude than the right of security of tenure of the judges which is, as is easily
discernible, more of a personal bene t to just a few, as indeed only the judge affected
could seek judicial redress of what he conceives to be its violation.
Herein lies the propriety of the exercise of "police power" of the State, if this concept which
underlies even the Constitution, has to be invoked as a constitutional justi cation of the
passage of the Act in question. That is, if a con ict between the primary power of the
legislature to create courts, and mere consequential bene t accorded to judges and
justices after the creation of the courts is indeed perceivable, which the writer fails to see,
or, at least, would disappear upon a reconciliation of the two apparently con icting
interests which, from the above disquisition, is not hard to nd. It is, without doubt, in the
essence of the exercise of police power that a right assertable by individuals may be
infringed in the greater interest of the public good and general welfare. This is
demonstrated in how the rights and freedoms enumerated in the Bill of Rights enjoyable by
the entire people, not just by a handful in comparison, are made subject to the lawful
exercise of the police power of the State.
Viewed, therefore, from the abovementioned perspective, the general revamp of the
judiciary involving both its components — the court as an o ce or institution, and the
judges and justices that man them — should not nd any legal obstacle in the security of
tenure of judges. This security, after all, is no more than as provided for all other o cials
and employees in the civil service of the government in Section 3, Article XII-B of the
Constitution which provides:
"No o cer or employees in the civil service shall be suspended or dismissed
except for cause as provided by law."
The provision of Article XVII, Section 10 of the Constitution gives to judicial o cials no
more than a guarantee that their retirement age as xed in the Constitution shall not be
alterable at mere legislative pleasure. The equivalent provision in the 1935 Constitution
was inserted for the rst time because the retirement age before then was provided
merely by statute not by the Constitution. If it comes to their removal or suspension, what
gives them constitutional protection is the aforequoted provision which does not
contemplate abolition of o ce when done in good faith, for removal implies the existence
of the o ce, not when it is abolished. Admittedly, as has been held, abolition of o ce for
no reason related to public welfare or for the good of the service, let alone when done in
bad faith, amounts to an unlawful removal. 2 The abolition of the courts as declared in the
Act as a result of a reorganization of the judiciary, as the Title of the law curtly but
impressively announces, can by no means, from any viewpoint, be so branded. And
whether by said reorganization, the present courts would be deemed abolished, as the law
expresses such an unmistakable intent, the matter is one for the sole and exclusive
determination of the legislature. It rests entirely on its discretion whether by the nature and
extent of the changes it has introduced, it has done enough to consider them abolished. To
give the Supreme Court the power to determine the extent or nature of the changes as to
their structure, distribution and jurisdiction, before the clear intent to abolish them, or to
declare them so abolished, is given effect, would be to allow undue interference in the
function of legislation. This would be contrary to the primary duty of courts precisely to
give effect to the legislative intent as expressed in the law or as may be discovered
therefrom. LibLex
From the above observation, it would be futile to insist that the present courts would not
effectively be abolished by the Act in question. It might be to arrogate power for Us to say
that the changes the law brings to the present judicial system, do not su ce for this Court
to give effect to the clear intent of the legislative body. Where would the agrarian courts,
the circuit criminal courts, the JDRC's be in the judicial structure as envisioned by the law?
Are they not abolished by merger with the regional trial courts, which by such merger, and
by the other changes introduced by the law, would make said courts different from the
present Courts of First Instance which, as a consequence, may then be considered
abolished? Integrated as the present courts are supposed to be, changes somewhere in
the judicial machinery would necessarily affect the entire system.
The fact that the Supreme Court may specially assign courts to function as the special
courts just mentioned, does not mean that the changes wrought are only super cial or
"cosmetic" as this term has been used so often in the oral argument. Without the new law,
these courts will remain xed and permanent where they are at present. Yet in the course
of time, the need for their independent existence may disappear, or that by changed
conditions, where they are needed at present at a certain place, the need for them may be
somewhere else in later years, if maximum bene t at the least expense is to be achieved,
as always should be a most desirable goal and objective of government.
Demonstrably then, the abolition of the courts is a matter of legislative intent into which no
judicial inquiry, is proper, except perhaps if that intent is so palpably tainted with
constitutional repugnancy, which is not so in the instant case. We have, therefore, no
occasion, as earlier intimated, to speak of removal of judges when the reorganization of
the judiciary would result in the abolition of the courts other than the Supreme Court and
the Court of Tax Appeals. Hence, the provision of the Constitution giving to the Supreme
Court power to dismiss a judge by a vote of eight justices does not come into the vortex of
the instant controversy. Its possible violation by the assailed statute cannot happen, and
may, therefore, not constitute an argument against the constitutionality of the law.
Former Justice Barrera, in a speech before the Philippine Bar Association, 3 impliedly
indorsed the judicial revamp when he enumerated the qualities of a good judge that the
appointing power should consider in making new appointments to the judiciary upon its
reorganization pursuant to the questioned Act. The words of the eminent jurist may well
re ect the favorable reaction of the public in general to what the Act aims to achieve in the
name of good and clean government. The present judicial incumbents, who have not in any
way, by their acts and behavior while in o ce, tarnished the good image that the judiciary
should have, therefore, have no cause for apprehension that what they are entitled to under
the Constitution by way of security of tenure will be denied them, considering the publicly
known aim and purpose of the massive judicial revamp, specially as cherished with deep
concern by the President who initiated the move when he created the Judiciary
Reorganization Committee to recommend needed and appropriate judicial reforms.
If the only obstacle to a verdict in favor of constitutionality of the law is its possible effect
of impairing the security of tenure of the incumbents, We may have the following facts to
consider:
1. Under the 1973 Constitution all incumbent judges and justices may continue in
o ce until replaced or reappointed by the President. As to those judicial o cials, no
security of tenure, in the traditional concept, attaches to their incumbency which is, in a real
sense, only a hold-over tenure. How the President has exercised this immense power with
admirable restraint should serve as the strongest guarantee of how justice and fairness
will be his sole guide in implementing the law.
2. As to the rest of the incumbents, they are all appointees of Our present President,
and he should feel concerned more than anyone else to protect whatever rights they may
rightfully claim to maintain their o cial standing and integrity. They need have no fear of
being ignored for no reason at all, much less for mere spirit of vindictiveness or lack of
nobility of heart.
From the foregoing, it would become apparent that only in the implementation of the law
may there possibly be a taint of constitutional repugnancy, as when a judge of
acknowledged honesty, industry and competence is separated, because an act of
arbitrariness would thereby be committed, but the abolition of the courts as decreed by
the law is not by itself or per se unconstitutional.
Consequently, the law, the result of serious and concerned study by a highly competent
committee, deserves to be given a chance to prove its worth in the way of improving the
judiciary. If in its implementation, any one, if at all, feels aggrieved, he can always seek
judicial redress, if he can make out a case of violation of his right of security of tenure with
uncontrovertible clarity, as when the separation is very arbitrary in the peculiar
circumstances of his case, for an act of arbitrariness, under any constitution, is
unpardonable.
II
This petition should also be dismissed for being premature, as is the stand of Justice
Aquino. The petition asks this Court to exercise its power of judicial inquiry, the power to
declare a law unconstitutional when it con icts with the fundamental law (People vs. Vera,
65 Phil. 56). This power has well-de ned limits, for it can be exercised only when the
following requisites are present, to wit: (1) There must be an actual case or controversy;
(2) The question of constitutionality must be raised by the proper party; (3) He should do
so at the earliest opportunity; and (4) The determination of the constitutionality of the
statute must be necessary to a final determination of the case.
I am of the opinion that the petition does not present an actual controversy nor was it led
by the proper parties. LexLib
The main ground for which the constitutionality of the Judiciary Reorganization Act of
1980 is assailed is that it is violative of the security of tenure of justices and judges. The
only persons who could raise the question of constitutionality of the law are, therefore, the
actual incumbents of the courts who would be separated from the service upon the
abolition of the courts affected by the law, on the theory as advanced by petitioners that
their judicial security of tenure would be violated. Olongapo City Judge de la Llana, the only
judge among the petitioners, has not been separated from the service. Nor is his
separation already a certainty, for he may be appointed to the court equivalent to his
present court, or even promoted to a higher court. Only when it has become certain that his
tenure has been terminated will an actual controversy arise on his allegation of a fact that
has become actual, not merely probable or hypothetical.
The present petition may neither be allowed as a taxpayer suit. A taxpayer may bring an
action to raise the question of constitutionality of a statute only when no one else can
more appropriately bring the suit to defend a right exclusively belonging to him, and,
therefore, would localize the actual injury to his person, and to no other. For a "proper
party" to invoke the power of judicial inquiry, as one of the requisites in the exercise of such
power, does not mean one having no better right, one more personalized, than what he has
as a member of the public in general. With the incumbent judges undoubtedly being the
ones under petitioners' theory, who would suffer direct and actual injury, they should
exclude mere taxpayers who cannot be said to suffer as "direct" and "actual" an injury as
the judges and justices by the enforcement of the assailed statute, from the right to bring
the suit.
The validity of the foregoing observation becomes more evident when We consider that
only after the fate of the present incumbents is known, whether they have been actually
separated or not, would the present courts be declared abolished. For the law clearly
continues their existence until all the new courts have been lled up with new
appointments, or at least such number as would be equal to the number of actual
incumbents, and they are the very courts to which they may lay claim to the right to
continue therein, so that the status of each and everyone of them has thereby been made
certain. Only then, upon the actual abolition of the courts, may there possibly be a violation
of the security of tenure; as contended, that would give rise to an "actual controversy" in
which the "proper party" can be no other than the judges who feel aggrieved by their non-
appointment to the new courts.
It would, therefore, not be proper to declare the law void at this stage, before it has even
been given a chance to prove its worth, as the legislature itself and all those who helped by
their exhaustive and scholarly study, felt it to be an urgent necessity, and before any of the
proper parties who could assail its constitutionality would know for a fact, certain and
actual, not merely probable or hypothetical, that they have a right violated by what they
could possibly contend to be an unconstitutional enforcement of the law, not by a law that
is unconstitutional unto itself.
I am, therefore, for giving the law a chance to be put into application so as not to douse
great popular expectations for the courts to regain their highest level of e ciency had
reputation for probity. Inevitably, this is to be so since only when the law is fully
implemented will all the courts affected be declared abolished, undoubtedly to avoid an
interregnum when the country is without any court, except the Supreme Court, the Court of
Tax Appeals and the Sandigan. Only then will it be known whether an actual controversy
would arise because any of the incumbents have been left out in the restructured judiciary.
There would then be also a proper party to assail the constitutionality of the law,
conformably to the conditions requisite for the exercise of the power of judicial inquiry
which by their stringent character, together with the constitutional prescription of a
comparatively higher vote to declare a law unconstitutional, reveal a salutary principle of
government that a law should, by all reasonable intendment and feasible means, be saved
from the doom of unconstitutionality, the rule corollary thereto being that if a law is
susceptible to two interpretations, one of which would make it constitutional that
interpretation should be adopted that will not kill the law.
It is to adhere to the above principles that the submission is made herein, that while in the
implementation of the law, constitutional repugnancy may not entirely be ruled out, a
categorical ruling hereon not being necessary or desirable at the moment, the law itself is
definitely not unconstitutional. 4 Any of the incumbent judges who feel injured after the law
shall have been implemented has adequate remedy in law, with full relief as would be
proper. But surely, the bene ts envisioned by the law in the discharge of one of the basic
duties of government to the people — the administration of justice — should not be
sacri ced, as it would be, if the law is, as sought in the present petition, declared void right
now, on the claim of a few being allegedly denied a right, at best of doubtful character, for
the claim would seem to rest on an unsupportable theory that they have a vested right to a
public office.
Just one more point. The law in question is not self-executing in the sense that upon its
effectivity, certain judges and justices cease to be so by direct action of the law. This is
what distinguishes the Act in question from R.A. No. 1186 involved in the Ocampo case, 5
which by its direct action, no act of implementation being necessary, all the judges whose
positions were abolished, automatically ceased as such. The Act in question, therefore, is
not as exposed to the same vulnerability to constitutional attack as R.A. No. 1186 was. Yet
by the operation of the Constitution with its wise provision on how a law may be declared
unconstitutional, R.A. No. 1186 stood the test for it to be enforced to the fullness of its
intent, which was, as in the law under consideration, identi ed with public interest and
general welfare, through a more e cient and effective judicial system as the Judiciary
Reorganization Act of 1980 seeks to establish.
Hence, the constitutionality of the law should not be assailed, and the law itself, striken
down, on the ground that some judges or justices may be removed or separated in
violation of their security of tenure. The law does not directly operate with that effect. It is
in how the law would be implemented that this feared eventuality may or may not occur.
We would then be killing the law on a mere speculation if We do so at this stage. This
would be an injudicious act done in reckless disregard of the safeguards built around a law
to defend it when its constitutionality is attacked; rst , the presumption that a law is
constitutional; second, when a law is susceptible to two interpretations one that would
make it constitutional, the other, unconstitutional, the former should be adopted; and third,
the Constitution itself which ordains that a law may not be declared unconstitutional
except on the vote of at least ten (10) members of the Supreme Court, more than what is
required for an ordinary decision of the Court en banc. This is not to mention the stringent
requisites for the exercise of the power of judicial inquiry as already adverted to, all
designed to save the law from the dire fate of unconstitutionality. cdphil
To the writer, the question before this Court is a simple matter of choosing between
protecting some judges from possible separation, as the implementation of the law to
achieve its primary purpose of improving the judiciary may have to result in, or serving the
interest of the entire society through an honest, e cient and effective judiciary. For, it is
unthinkable that what is for the good of the people as a whole could have been meant by
the Constitution to be sacri ced for the sake of only a few. The greatest good for the
greatest number is an unwritten rule, more rm and enduring than any of the postulates
spread in our written Constitution. This, I might say, is the main theme of this separate
opinion, otherwise expressed in the well-known and a time-honored maxim: "Salus populi
est suprema lex."
MELENCIO-HERRERA , J ., concurring :
There is unquali ed adherence on my part to the dismissal of the Petition led in this case.
If I am writing this separate concurrence, it is merely to state certain views I entertain in
regards to the constitutionality of Batas Pambansa Blg. 129.
The controversy in this case involves two constitutional provisions. Article X, Section 1, of
the Organic law provides that the legislative has the power to establish inferior Courts by
law. Section 7 of the same Article reads:
"SEC. 7. The Members of the Supreme Court and judges of inferior courts
shall hold o ce during good behavior until they reach the age of seventy years or
become incapacitated to discharge the duties of their o ce. The Supreme Court
shall have the power to discipline judges of inferior courts and, by a vote of at
least eight Members, order their dismissal."
There should be no conflict between the two provisions. Both should be harmonized.
1. a) It is a fundamental proposition that the legislative power to create Courts
ordinarily includes the power to organize and to reorganize them, and that the power to
abolish Courts is generally coextensive with the power to create them. The power to
abolish was not intended to be quali ed by the permanence of tenure (Opinion of Chief
Justice Ricardo Paras in Ocampo vs. Secretary of Justice, 51 O.G. 147 [1955], citing
McCulley vs. State, 53 SW 134; Halsey vs. Gaines, 2 Lea 316). The right of Judges to hold
o ce during good behavior until they reach the age of 70 years, or become incapacitated
to discharge the duties of their o ce, does not deprive Congress of its power to abolish,
organize or reorganize inferior Courts (Brillo vs. Enage, 94 Phil. 732, 735, citing Zandueta
vs. de la Costa, 66 Phil. 615; 42 Am. Jur., Pub. O cer, 904-5). Judges of those Courts take
office with that encumbrance and knowledge.
"The legislative power to create a court carries with it the power to abolish it.
When the court is abolished any unexpired term is abolished also. The judge of
such court takes o ce with that encumbrance and knowledge. Perkins v. Corbin,
45 Ala. 103, 6 Am. Rep. 698, State, ex rel. Thomas v. Gunter, 170 Ala. 165, 54 So
283, et al."
The importance and the imperative of maintaining the independence of the Judiciary is
undisputed. At the same time, the power of Congress under the Constitution cannot be
abridged. For, in the last analysis, it is not the security of tenure per se that is the only
safeguard to the independence of the Judiciary. It is the character and the mettle of the
Judges who sit on the Bench. Has not the impression been created in the public mind that
there are those who have abused the prerogatives of their judicial position knowing that
they are untouchables by virtue of the permanence of their tenure?
b) A distinction should be made between tenure of Judges and tenure of Courts.
Section 1 heretofore mentioned refers to the "Judiciary" as a fundamental department of
Government. Section 7 quoted above refers to the tenure of o ce of "individual" Judges
(inclusive of Justices of inferior Courts); that is to say, tenure of o ce is a matter
concerning the individual Judge. This "individuality" character of Section 7 is supported by
the clause that the Supreme Court has the power to discipline individual judges of inferior
Courts.
A legislature is not bound to give security of tenure to Courts. Courts can be abolished. In
fact, the entire judicial system can be changed. If that system can no longer admit of
change, woe to the wheels of progress and the imperatives of growth in the development
of the Judiciary. To hold that tenure of Judges is superior to the legislative power to
reorganize is to render impotent the exercise of that power.
It may even be stated that, under Section 7, supra, Judges are entailed to their Courts, from
which they cannot be separated before retirement age except as a disciplinary action for
bad behavior. Under Section 1, Courts are not entailed to their Judges, because the power
of the legislative to establish inferior Courts presupposes the power to abolish those
Courts. If an inferior Court is abolished, the Judge presiding that Court will necessarily
have to lose his position because the abolished Court is not entailed to him.
c) The constitutional guarantee of tenure of Judges applies only as their Courts exist.
As long as those Courts exist, the Judges cannot be ousted without just cause; that is the
extent of the constitutional provision relative to security of tenure of Judges. Upon
declaration of the completion of the reorganization as provided for in the Reorganization
Act, the affected Courts "shall be deemed automatically abolished." There being no Courts,
there are no o ces for which tenure of Judges may be claimed. By the abolition of those
o ces, the rights to them are necessarily extinguished (Manalang vs. Quitoriano, 94 Phil.
903 [1954]).
2. I am satis ed that the challenged law was enacted by the Batasang Pambansa in
response to an urgent and pressing public need and not for the purpose of affecting
adversely the security of tenure of all Judges or legislating them out to the detriment of
judicial independence. It should not be said of the Batasang Pambansa that its power of
abolition of Courts has been used to disguise an unconstitutional and evil purpose to
defeat the security of tenure of Judges. The Judiciary Reorganization Act of 1981
su ciently complies with the bona fide rule in the abolition of public o ce, as clearly
explained in the main opinion. Besides, every presumption of good faith in its actuations
must be accorded a coordinate and coequal branch of government, supreme within the
limits of its own sphere, until that presumption is clearly overcome. There is no showing
that the Reorganization Act was motivated for personal or political reasons as to justify
the interference by the Court (Garvey vs. Lowell, 199 Mass 47, 85 N.E. 182, 127 A.S.R. 468;
State vs. Eduards, 40 Mont. 287; 106 Pac. 695, 19 R.C.L. 236; Llanto vs. Dimaporo, 16
SCRA 599 [1966]). Public interest and public good, as the legislative body views it, must be
balanced with tenure of Judges, which is an individual right. Reverting to Section 1 and
Section 7, supra, the former is the weightier, because the "Judiciary" is of more importance
to the welfare of the country than the tenure of o ce of an individual Judge. If a Judge is
removed without cause, there can be damage to the public welfare to some extent, but
maintenance of a Court that does not meet the requirements of progressive Government,
can cause incalculable prejudice to the people.
3. Nor does a conflict exist with the power of discipline vested in the Supreme Court by
the present Constitution reading: the Supreme Court shall have the power "to discipline
Judges of inferior Courts, and, by a vote of at least 8 members, order their dismissal."
Absent the Court, it would be futile to speak of the Supreme Court's power to discipline.
Thus, where the legislature has willed that the Courts be abolished, the power to discipline
cannot pose an obstacle to the abolition. The power to discipline can come into play only
when there is removal from an existing judicial o ce, but not when that o ce is abolished.
The reorganization of the judicial system with the abolition of certain Courts is not an
exercise of the power to discipline the Judges of the abolished Courts.
It is of signi cance to note that the power of dismissal vested in the Supreme Court by the
1973 Constitution is delimited by its power to discipline. Absent any need for discipline
and the power to dismiss does not exist. Being circumscribed in scope, it may well be
asked: does the grant of the power of discipline and dismissal in the Supreme Court
deprive the executive of the power of removal? Is it not more in keeping with the allocation
of powers in our government to state that the Supreme Court shares its power to dismiss
with the executive power of removal? For is not the power of removal basically executive in
nature, as an incident to the power of appointment, which is the prerogative of the Chief
Executive alone? As in the case of appointments, Section 5(6), Article X of the Constitution
provides that the Supreme Court shall appoint its o cials and employees. However, is not
this power shared with the power of appointment of the executive who appoints some of
the Court o cials? These questions could lend themselves to an in-depth study in the
proper case.
4. The abolition would be no deprivation either of due process of law. A public o ce
cannot be regarded as the "property" of the incumbent. A public o ce is not a contract
(Segovia vs. Noel, 47 Phil. 543 [1925]). A public o ce is a public trust (Section 1, Article
XIII, 1973 Constitution). It is a privilege in the gift of the State (Brown vs. Russel, 166
Mass. 14, 43 NE 1005, 32 LRA 253 cited also in Tañada & Carreon, Political Law of the
Philippines, Vol. 2, p. 537). The o cers are the servants of the people and not their rulers
(22 R.C.L. 378-379, cited in Martin, Administrative Law, Law on Public O cers and Election
Law, p. 112, 1970 ed.). Besides, it bears stressing that there is no removal from o ce but
abolition of the office itself.
5. The questioned statute is in keeping with major reforms in other departments of
government. "The thrust is on development." It is "the rst major reorganization after four
generations." It does not provide for a piecemeal change, which could be ineffective. It
goes to the roots and does not just scratch the surface of our judicial system. Its main
objectives are an improved administration of justice, the "attainment of more e ciency in
the disposal of cases, a reallocation of jurisdiction, and a revision of procedures which do
not tend to the proper meting out of justice." These aims are policy matters of necessity in
the pursuit of developmental goals within the Judiciary.
6. The Reorganization Act reorganizes the entire judicial system excluding the Supreme
Court, which is the only constitutional Court, and the Sandiganbayan. It envisages
institutional reforms in the Philippine judiciary. It does not simply change the names of the
Courts. The facts herein are dissimilar from those in Brillo vs. Enage (94 Phil. 732 [1954])
where the position of Justice of the Peace, although ostensibly abolished, was merely
changed to Municipal Judge after the municipality of Tacloban was converted into a city
with its own charter.
Significant among the institutional changes and procedural reforms are:
The Intermediate Appellate Court
This Court is now constituted into ten (10) divisions instead of fteen (15), ve members
composing each division, and a majority vote of three members being needed for a
decision. This obviates the cumbersome procedure, in case of dissent, of assigning two
other members to compose a "division of ve." It also allows exibility in that any three
members of a division, arriving at unanimity, can promulgate a decision. LLjur
Now provided for is specialization into four (4) Civil Cases Divisions, two (2) Criminal
Cases Divisions and four (4) Special Cases Divisions. The specialization is expected to
contribute to the expeditious disposal of cases.
The Court has been given original jurisdiction to issue Writs of mandamus, prohibition,
certiorari, habeas corpus, quo warranto and auxiliary writs or processes whether or not in
aid of its appellate jurisdiction. This would undoubtedly ease the burden of the Supreme
Court where numerous such cases are filed daily.
It has exclusive appellate jurisdiction over all nal judgments, decisions, resolutions,
orders or award of quasi-judicial agencies, instrumentalities, boards or commissions,
except those falling within the exclusive appellate jurisdiction of the Supreme Court in
accordance with the Constitution.
The Intermediate Appellate Court would now have the power to try cases and conduct
hearings, receive evidence and perform any and all acts necessary to resolve factual issues
raised in cases falling within its original and appellate jurisdiction, including the power to
grant and conduct new trials or further proceedings (Sec. 9). This does away with the
delays attendant to the remand of cases to the lower trial Courts.
Regional Trial Courts
There are now thirteen (13) Judicial Regions, the same as the present administrative and
Batasang Pambansa Regions, instead of sixteen (16) Judicial Districts.
A Judge is appointed to a region, which is his o cial station. This ensures mobility since a
Judge may be assigned anywhere within the Region without applying the constitutional
limitation of six months. Additionally, it can remedy temporary inequalities of caseloads in
trial Courts.
Specialized Courts are integrated into the Regional Trial Courts. Thus, Regional Trial Courts
would try all cases within its jurisdiction unless special cases are assigned to them, in
which case, they remain as Branches of Regional Trial Courts. Special procedures and
technical rules governing special Courts will continue to remain applicable in Branches
assigned those special cases.
Metropolitan Trial Courts
There is one Metropolitan Trial Court with several Branches for large urban areas. The
appointment of Judges would be to a Metropolitan Trial Court, although a Judge may be
assigned by the Supreme Court to any Branch of the Metropolitan Trial Court as demanded
by the exigencies of the service.
The Supreme Court may designate certain Branches of said Courts to exercise special
jurisdiction over certain cases, unlike the present set-up where special jurisdiction applies
only to cases of traffic violations.
Municipal Trial Courts/Municipal Circuit Trial Courts
Municipal Trial Courts may now be designated by the Supreme Court to exercise special
jurisdiction over certain cases, thereby resulting in overall exibility. They can also be
circuitized with those in cities not forming part of metropolitan areas.
One notable change between the old and the new set-up is that Judges of these Courts will
now be Presidential appointees unlike presently where the incumbent Judges are merely
designated by the Supreme Court in an Administrative Order to sit in existing Municipal
Courts and Municipal Circuit Courts.
7. There are innovative features in the Act that commend themselves:
a) The confusing and illogical areas of concurrent jurisdiction between the trial Courts
have been entirely eliminated.
b) Under Section 39, there is a uniform period for appeal of fteen (15) days counted
from the notice of the final order, resolution, award, judgment, or decision appealed from.
A record on appeal is no longer required to take an appeal. The entire original record is
now to be transmitted.
c) Under Section 40, in deciding appealed cases, adoption by reference of ndings of
fact and conclusions of law as set forth in the decision, order, or resolution appealed from,
is also provided for. This will expedite the rendition of decisions in appealed cases.
d) Section 42 provides for "a monthly longevity pay equivalent to 5% of the monthly
basic pay for Justices and Judges of the courts herein created for each ve years of
continuous, e cient, and meritorious service rendered in the Judiciary, Provided that, in no
case shall the total salary of each Justice or Judge concerned, after this longevity pay is
added, exceed the salary of the Justice or Judge next in rank." Thus, Justices and Judges
who may not reach the top, where unfortunately there is not enough room for all, may have
the satisfaction of at least approximating the salary scale of those above him depending
on his length of service.
8. But while the law itself as written is constitutional, the manner in which it will be
administered should not be tainted with unconstitutionality (Myles Salt Co. vs. Board of
Commrs., 292 US 478, 60 L. Ed. 392, 36 Sct 204). To obviate the possibility of an
unconstitutional exercise of power the following safeguards are recommended and/or
expected to be undertaken:
a) The President can be expected to indicate a reasonable time frame for the
completion of the reorganization provided for in the Act and the issuance of the
corresponding implementing Order.
b) Appointments and their effectivity should be simultaneous with, or as close as
possible, to the declaration by the President of the completion of the reorganization under
Section 44 to avoid any detriment to the smooth and continuous functioning of the judicial
machinery. cdasia
c) The services of those not separated should be deemed uninterrupted, as

recommended by the Committee on Judicial Reorganization (Article XI of its Report).
9. For the speedy implementation of the law, the Supreme Court can be expected to
submit to the President within thirty (30) days from the date of nality of its Decision the
staffing pattern for all Courts required by Section 43.
I am constrained to disagree with the suggestion of one of the amici curiae that the
sta ng pattern be made to include the names of Judges. The sta ng pattern for Judges
is already clearly and explicitly provided in the law itself which enumerates the various
Judges and Justices in their hierarchical order. Furthermore, to include the superior
positions of Judges would depart from the traditional concept of a sta ng pattern, which
refers more to personnel organization and corresponding salaries of inferior employees. It
is also constitutionally objectionable in that it would interfere with the prerogative of
appointment intrinsically executive in nature (Guevara vs. Inocentes, 16 SCRA 379 [1966];
Government of the Philippines vs. Springer, 50 Phil. 259 [1927]). The President may not be
deprived of, nor be limited in, the full use of his discretion in the appointment of persons to
any public o ce. Nothing should so trench upon executive choice as to be, in effect,
judicial designation.
10. A word of explanation. If I had resolved not to inhibit myself in this case upon
motion led by petitioners, it was because the Committee on Judicial Reorganization, of
which I was privileged to be a member, con ned its work to the recommendation of
options and guidelines in the task of reorganization. The Committee had no part
whatsoever in the drafting of the bill nor in the public hearings conducted. In fact, some of
its recommendations like the circuitization or regionalization of the Intermediate Appellate
Court, the appellation of members of the Judiciary, the con nement of the jurisdiction of
the Intermediate Appellate Court merely to appellate jurisdiction, the adoption of the
system found in the United Kingdom and in Commonwealth countries of having a Court of
general jurisdiction with trial and appellate divisions, were not availed of in the final Act.
11. Lastly, but by no means the least, I entertain no doubt that reliance can be placed
on the good faith of the President that all the deserving, upon considerations of "e ciency,
integrity, length of service and other relevant factors," shall be appointed to a strengthened
and revitalized judicial system in the interest of public service; that appointments will not
be unduly delayed: and that appointees will be evaluated thoroughly to ensure quality and
impartiality in the men and women who will keep vigil over our judicial ramparts.
ERICTA , J ., concurring :
I concur in the view that Judiciary reorganization law is not unconstitutional. It does not
violate the principle of security of tenure of Judges.
The constitution grants to the Batasang Pambansa the power to create courts inferior to
the Supreme Court (Article X, Section 1). All existing inferior courts were created by law.
No law is irrepealable. The power to create an o ce includes the power to abolish the
same. (Urgelio vs. Osmeña, 9 SCRA 317; Maza vs. Ochave, 20 SCRA 142). prLL
Security of tenure cannot be invoked when there is no removal of a public o cer or

employee but an abolition of his o ce. (Manalang vs. Quitoriano, 94 Phil. 903; Cruz vs.
Primicias, 23 SCRA 998; Baldoz vs. O ce of the President, 78 SCRA 354, 362) A
distinction should be made between removal from o ce and abolition of an o ce.
Removal implies that the o ce subsists after ouster, while, in abolition, the o ce no
longer exists thereby terminating the right of the incumbent to exercise the rights and
duties of the office. (Canonigo vs. Ramiro, 31 SCRA 278)
The power of the legislative branch of the government to abolish courts inferior to the
Supreme Court has long been established. (Ocampo vs. Secretary of Justice, 51 O.G. 147)
What is only needed is that the abolition passes the test of good faith. It need only be
shown that said abolition of the courts is merely incidental to a bona de reorganization.
(Urgelio vs. Osmeña, supra)
It is unthinkable to impute bad faith to the Presidential Committee on Judicial
Reorganization composed of four (4) distinguished members of the Supreme Court, the
Minister of Justice and the Deputy Minister of Justice, and to the members of the
Batasang Pambansa whose combined efforts after a careful study and deliberation
resulted to the enactment of a bill now signed into law as Batasang Pambansa Blg. 129. In
his sponsorship speech, Justice Ricardo C. Puno declared the objectives of the Judiciary
Reorganization Law to be the following: (1) the attainment of more e ciency in the
disposal of cases; (2) the improvement in the quality of decisions by the courts that will
result from the easing of court dockets; and (3) structural changes to meet the exigencies
of present day Philippine Society and of the foreseeable future.
Admittedly, in the implementation of the law, some Judges and Justices may be adversely
affected. But in a con ict between public interest and the individual interest of some
Judges and Justices, the public weal must prevail. The welfare of the people is the
supreme law.
The implementation of the law will entail appointments to the new courts. The power of
appointment is the exclusive prerogative of the President. The implementation of the law
should be left exclusively to the wisdom, patriotism and statesmanship of the President. llcd
PLANA , J ., concurring and dissenting :
As the lawmaking body has the power to create inferior courts and de ne, prescribe and
apportion their jurisdiction, so it has the power to abolish or replace them with other
courts as long as the act is done in good faith and not for the purpose of attaining an
unconstitutional end. Good faith has thus become the crucial issue in the case at bar.
Upon an examination of the legislative history of Batas Pambansa 129, as has been done
in the main opinion, it is manifest that actual, not merely presumed good faith attended its
enactment. On this basis, I concur in the opinion penned by the learned Chief Justice,
qualified only by the following observations:
1. Executive consultation with the Supreme Court. — I believe the President is under no
obligation to consult with the Supreme Court; and the Supreme Court as such is not called
upon to give legal advice to the President. Indeed, as the Supreme Court itself has said, it
cannot give advisory opinions (Bacolod-Murcia Planters' Asso., Inc. vs. Bacolod-Murcia
Milling Co., 30 SCRA 67; NWSA vs. Court of Industrial Relations, 90 SCRA 629) even to the
President.
In the drafting of the present Constitution, there was an attempt to vest the Supreme Court
with the function of giving advisory opinions. The framers of the Constitution, however, did
not see fit to adopt the proposal.
If the President should consult the Supreme Court on the implementation of Batas
Pambansa 129 and the Supreme Court should give its advice (leaving aside the question
of procedure), I believe the President would be free to follow or disregard the advice; but,
in either case, there would be no guarantee that the implementing action would be upheld
in one case or stricken down in the other.
2. Undue delegation of legislative powers. —
The petitioners have also assailed the constitutionality of Batas Pambansa 129 on the
ground that a provision thereof (regarding xing of compensation and allowances for
members of the Judiciary) constitutes an undue delegation unto the President of
legislative power.
As pointed out in the main opinion, the legislature has provided ample standards or
guidelines for the implementation of the delegated power, which makes the delegation
inoffensive. I would like to add however some observations on the doctrine of undue
delegation of legislative power.
Under the old Constitution, when the abiding rule was separation of legislative and
executive powers, there was good reason to maintain the doctrine of non-delegation of
legislative power. Otherwise, the principle of separation of governmental powers could be
negated via unbridled delegation of legislative power. The 1973 Constitution has however
radically changed the constitutional set-up. There is now a commingling or fusion of
executive and legislative powers in the hands of the same group of o cials. Cabinet
members play a leading role in the legislative process, and members of the Batasan
actively discharge executive functions. The Prime Minister indeed must come from its
ranks. Under the circumstances, there is really not much sense in rigidly upholding the
principle of non-delegation of legislative power, at least vis-a-vis the Executive Department.
In a very real sense, the present Constitution has signi cantly eroded the hoary doctrine of
non-delegation of legislative power, although it has retained some provisions of the old
Constitution which were predicated on the principle of non-delegation, this time perhaps
not so much to authorize shifting of power and thereby correspondingly reduce the
incidence of "undue" delegation of legislative power, as to avert the abdication thereof.
"In times of war or other national emergency, the Batasang Pambansa may by
law authorize the President for a limited period and subject to such restrictions as
it may prescribe, to exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the Batasang
Pambansa, such powers shall cease upon its next adjournment." (Art. VIII, Sec.
15.)
"The Batasang Pambansa may by law authorize the President to x within
speci ed limits, and subject to such limitations and restrictions as it may impose,
tariff rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts." [Ibid., Sec. 17(2).]
TEEHANKEE , J ., dissenting :
Undoubtedly, no more crucial and transcendental issue of such magnitude has confronted
the Philippine judiciary than in the present case. The challenged Act, Batas Pambansa Blg.
129 by its title would reorganize all existing courts (except the nine-member
Sandiganbayan 1 and the three-member Court of Tax Appeals) and upon declaration by the
President of the completion of the reorganization would unprecedentedly deem all the said
courts "automatically abolished" en masse and "the incumbents thereof shall cease to hold
o ce." 2 The total abolition involves a total of 1,663 judicial positions with 1,180
incumbent judges (and 483 vacancies) as of January 26, 1982 and the Act would effect an
increase of 230 judicial positions raising the total of judicial positions to be lled by new
appointments to 1,893. Notwithstanding the great deference due to enactments of the
Batasan, I regretably nd myself unable to join the ranks of my esteemed colleagues in the
majority who uphold the constitutionality of the Act and have voted to dismiss the petition,
for the following main considerations and reasons: —
1. I go by the ruling of the numerical majority of seven Justices (namely, Pablo, Cesar
Bengzon, Montemayor, Jugo, Bautista, Roberto Concepcion and J.B.L. Reyes, JJ.) in the
leading 1955 case of Ocampo 3 who fell short by one vote to reach the constitutionally
required 2/3 majority (at the time 8 out of an 11-member Supreme Court) to declare
unconstitutional and invalid Section 3 of Republic Act 1186 abolishing the positions of 18
judges-at-large and 15 cadastral judges and removing or legislating out the incumbent
judges from o ce as against the contrary vote of a minority of 4 Justices (namely, then
Chief Justice Paras and Padilla, Alex Reyes and Labrador, JJ.) with the paradoxical
situation that the last three named Justices voted for the validity of the Act as a remedial
measure that abolished said positions without permanent station which subjected them to
a rigodon de jueces without the consent of the Supreme Court, which they considered as
"repulsive to an independent judiciary" and violative of an express prohibitory provision of
the 1935 Constitution — while Justice Alex Reyes conceded that otherwise he would go
with the majority that "Congress may not, as a general rule, abolish a judicial post without
allowing the incumbent to finish his term of office."
2. As then Associate, later Chief Justice Cesar Bengzon remarked in his separate
opinion — "(T)he [adverse] outcome of this litigation [sanctioning the ouster from o ce of
the ten petitioners who were presiding different Courts of First Instance, some as judges-
at-large, others as cadastral judges, upon the enactment on June 19, 1954 of R.A. 1186
abolishing the positions of judges-at-large and cadastral judges] is apt to revive the
speculation whether wittingly or unwittingly the Constitution has further weakened the
usually weak judicial department because of its 'innovative' requirement of a 2/3 majority
vote of the Supreme Court to declare a statute unconstitutional, and 'never in our history
has such a number of judges of rst instance [totalling 33 positions] been ousted through
judicial reorganization.'"
His rationale that the express constitutional guaranty of security of tenure of judges
"during good behavior until they reach the age of seventy years or become incapacitated to
discharge the duties of their o ce" 4 must prevail over the implied constitutional authority
to abolish courts and to oust the judges despite their constitutionally-secured tenure
bears repeating, thus:
"A careful analysis will perceive that whereas petitioners invoke an express
guaranty or positive de nition of their term of o ce, the respondents rely on
implied authority to abolish courts and the positions of the respective judges.
Accurately stated, respondents' defense rests on a second inference deduced
from such implied power, because they reason out thusly: Congress has express
power to establish courts; therefore it has implicit power to abolish courts and the
positions of judges of such abolished courts ( rst inference); and therefore
(second inference) Congress likewise has power to eject the judges holding such
positions.
"Resultant juridical situation: The implied authority invoked by respondents
collides with the express guaranty of tenure protecting the petitioners. Which shall
prevail? Obviously the express guaranty must override the implied authority.
'Implications can never be permitted to contradict the expressed intent or to
defeat its purpose.'. . .
xxx xxx xxx
"But the collision may be-should be-avoided, and both sections given validity, if
one be considered a proviso or exception to the other. In other words, under the
Constitution the Congress may abolish existing courts, provided it does not
thereby remove the incumbent judges; such abolition to take effect upon
termination of their incumbency. The fundamental provisions on the matter are
thereby 'coordinated and harmonized' as Justice Laurel suggested in his
concurring opinion in Zandueta v. De la Costa. To bring about the reconciliations
is the great work of jurists. (Cardozo, Paradoxes of Legal Science, p. 6)" 5
3. This reasoning that the express guaranty of tenure protecting incumbent judges
during good behavior unless removed from o ce after hearing and due process or upon
reaching the compulsory retirement age of seventy years must override the implied
authority of removing by legislation the judges has been further strengthened and placed
beyond doubt by the new provisions of the 1973 Constitution that transferred the
administrative supervision over all courts and their personnel from the Chief Executive
through the then Secretary of Justice to the Supreme Court 6 and vested in the Supreme
Court exclusively "the power to discipline judges of inferior courts and, by a vote of at least
eight members, order their dismissa l," 7 which power was formerly lodged by the Judiciary
Act in the Chief Executive.
As former Chief Justice Bengzon stressed in his opinion in Ocampo, the 1934
Constitutional Convention "frowned on removal of judges of rst instance through
abolition of their o ces or reorganization," citing Professor Jose Aruego's observation
that the security of judges' tenure provision was intended to "help secure the
independence of the judiciary" in that "during good behaviour, they may not be legislated
out of office by the lawmaking body nor removed by the Chief Executive for any reason and
under the guise of any pretense whatsoever; they may stay in office until they reach the age
of seventy years, or become incapacitated to discharge the duties of their o ce. (Aruego,
the Framing of the Philippine Constitution, Vol. II, pp. 718-719)" He further cited Aruego's
report that a proposed amendment to the effect that the prohibition against transfers of
judges to another district without the approval of the Supreme Court 8 "should not be
applicable to a reorganization of tribunals of justice or of districts, but the amendment
was defeated easily without debate" 9 and logically concluded that "(N)ow, therefore,
having vetoed the transfer of judges thru a reorganization, the Convention evidently could
not have permitted the removal of judges thru re-organization." cdasia
Now, if the framers of the 1973 Constitution wished to dispel the strong doubts, to say the
least in the light of the 7 to 4 vote in the Ocampo case against removal of incumbent
judges through legislative action by abolition of their courts, then they would have so
clearly provided for such form of removal in the 1973 Constitution, but on the contrary as
already stated they ruled out such removal or ouster of judges by legislative action by
vesting exclusively in the Supreme Court the power of discipline and removal of judges of
all inferior courts.
4. This being so, the fundamental point emphasized by former Chief Justice Bengzon
that abolition of the 33 judicial positions in the Ocampo case was "merely an indirect
manner of removing the petitioners-judges" while the "positions [that] were eliminated . . .
were in fact substituted or replaced by other positions of judges" applies with greater
force in the case at bar which involves an unprecendented total "abolition," thus: "(C)all it
reorganization, or legislation or removal or abolition, this law disregards the constitutional
assurance that these judges, once appointed, shall hold o ce during good behaviour . . .
unless incapacitated and until retirement].
"The abolition of their o ces was merely an indirect manner of removing these
petitioners. Remember that on June 19, 1954, there were 107 judges of rst
instance, district judges, judges-at-large and cadastral judges (Rep. Act 296). After
the passage of Republic Act No. 1186 there were 114 positions of judges of rst
instance. There was no reduction-there was increase-in the number of judges, nor
in the number of courts. The positions of Judges-at-Large and Cadastral Judges
were eliminated; but they were in fact substituted or replaced by other positions of
judges; or if you please, there was a mere change of designation from 'Cadastral
Judge or Judge-at-Large' to 'district judge.' Hence it should be ruled that as their
positions had not been 'abolished' de facto, but actually retained with another
name, these petitioners are entitled to remain in the service. (Brillo v. Enage, G.R.
No. L-7115, March 30, 1954.) For it is not permissible to effect the removal of one
judge thru the expediency of abolishing his-o ce even as the o ce with same
power is created with another name. (Brillo v. Enage, Malone v. Williams, 118
Tenn. 391, Gibbe's Case 4 A.L.R., p. 211) in this view of the picture, we believe,
Congress could have, and should have-as suggested by Secretary Tuazon during
the hearings in Congress-directed in said Republic Act No. 1186 that 'the present
judges-at-large and cadastral judges shall become district judges presiding such
districts as may be xed by the President with the consent of the Commission on
Appointments;' or by the Secretary of Justice, as originally proposed by Senator
Laurel in connection with the same bill. Something similar was done before, and it
would not be objectionable as an encroachment on the President's prerogative of
appointment, because such judges had already been appointed to the judiciary
before the passage of the act, and the provision may be construed in the light of
mere change of official designation plus increase in salary."
5. Concededly, the questioned Act effects certain changes and procedural reforms
with more speci c delineation of jurisdiction as mentioned particularly in the majority
opinion, but they do not change the basic structure of the existing courts. The present
Municipal Courts, Municipal Circuit Courts and City Courts are restructured and
redesignated as Municipal Trial Courts and Municipal Circuit Trial Courts and Metropolitan
Trial Courts in the challenged Act. The Courts of First Instance, Circuit Criminal Courts,
Juvenile and Domestic Relations Courts and Courts of Agrarian Relations are all
restructured and redesignated to be known by the common name of Regional Trial Courts
with provision for certain branches thereof "to handle exclusively criminal cases, juvenile
and domestic relations cases, agrarian cases, urban land reform cases .. and/or such other
special cases as the Supreme Court may determine in the interest of a speedy and
e cient administration of justice" 1 0 and the Court of Appeals is restructured and
redesignated as the Intermediate Appellate Court with an increase in the number of
Appellate Justices from the present 45 to 50 but with a reduction of the number of
divisions from 15 (composed of 3 Justices each) to 10 (composed of 5 members each)
such that it is feared that there is created a bottleneck at the appellate level in the
important task discharged by such appellate courts as reviewers of facts. Cdpr
In my view, the "candid admission" by the Chief Justice in his opinion for the Court "that he
entertained doubts as to whether the intermediate court of appeals provided for is a new
tribunal" 10a is equally applicable to all the other abovementioned courts provided for in
the challenged Act as "new courts." And the best proof of this is the plain and simple
transitory provision in Section 44 thereof that upon the President's declaration of
completion of the reorganization (whereby the "old courts" shall "be deemed automatically
abolished and the incumbents thereof shall cease to hold o ce"). "(T)he cases pending in
the old Courts shall be transferred to the appropriate Courts constituted pursuant to this
Act, together with the pertinent functions, records, equipment, property and the necessary
personnel," together with the "applicable appropriations." This could not have been
possible without a speci cation and enumeration of what speci c cases of the "old
courts" would be transferred to the particular "new courts," had these "new courts" not
been manifestly and substantially the "old courts" with a change of name-or as described
by Justice Barredo to have been his rst view, now discarded, in his separate opinion: "just
a renaming, and not a substantial and actual modi cation or alteration of the present
judicial structure or system" or "a rearrangement or remodeling of the old structure." 11
6. I do not subscribe to the test of good faith or bad faith in the abolition of the courts
and consequent ouster of the incumbent judges from o ce as expounded by the late
eminent Justice Jose P. Laurel in his separate concurring opinion in the pre-war case of
Zandueta 1 2 wherein the Court dismissed the petition for quo warranto on the ground of
petitioner Zandueta's estoppel and abandonment of office. 1 3 Realistically viewed from the
basis of the established legal presumptions of validity and constitutionality of statutes
(unless set aside by a 2/3 majority of 10 members of the Supreme Court) and of good
faith in their enactment, one is hard put to conjure a case where the Court could speculate
on the good or bad motives behind the enactment of the Act without appearing to be
imprudent and improper and declare that "the legislative power of reorganization (is)
sought to cloak an unconstitutional and evil purpose." The good faith in the enactment of
the challenged Act must needs be granted. What must be reconciled is the legislative
power to abolish courts as implied from the power to establish them with the express
constitutional guaranty of tenure of the judges which is essential for a free and
independent judiciary. Adherents of the Rule of Law are agreed that indispensable for the
maintenance of the Rule of Law is a free and independent judiciary, sworn to protect and
enforce it without fear or favor — "free, not only from graft, corruption, ineptness and
incompetence but even from the tentacles of interference and insiduous in uence of the
political powers that be," to quote again from Justice Barredo's separate concurring
opinion. 1 4 Hence, my adherence to the 7-member majority opinion of former Chief Justice
Bengzon in the Ocampo case, supra, as restated by the Philippine Association of Law
Professors headed by former Chief Justice Roberto Concepcion that "any reorganization
should at least allow the incumbents of the existing courts to remain in o ce [the
appropriate counterpart 'new courts'] unless they are removed for cause."
7. The "judges' broader and stronger guarantees of tenure than ordinary civil servants"
as stressed by former Chief Justice Bengzon in his majority opinion in Ocampo is based
on the judiciary's status as a co-equal and coordinate branch of government, whereas the
long line of Philippine cases upholding the legislative power to abolish o ces refers to
o cers or employees in the executive branch of government and "the underlying
consideration must be borne in mind that Manalang [the aggrieved petitioner] belonged to
the Executive Department and because the President approved the law, no question or
encroachment by one branch on the other could be apprehended or alleged." 1 5 This is not
a matter of personal privilege for the incumbent judges but as aptly stated by former U.P.
Law Dean Irene Cortez in her memorandum as amicus curiae, "for the judiciary whose
independence is not only eroded but is in grave danger of being completely destroyed."
Dean Cortez aptly stressed that "judicial independence is not a guarantee intended for the
Supreme Court alone, it extends to the entire court system and is even more vital to the
courts at the lowest levels because there are more of them and they operate closest to the
people, "and" (P)articularly under the present form of modi ed parliamentary government
with legislative and executive functions overlapping and in certain areas merging, the
judiciary is left to perform the checking function in the performance of which its
independence assumes an even more vital importance." cdasia
The extensive memoranda led by Dean Cortez and other amici curiae, such as former
Senator Jose W. Diokno who strongly urges the Court to strike down the Act "to prevent
further destruction of judicial independence," former Senator Lorenzo Sumulong, president
of the Philippine Constitution Association who advocates for the Court's adoption of the
Bengzon majority opinion in the Ocampo case so as to abide by "the elementary rule in the
interpretation of constitutions that effect should be given to all parts of the Constitution"
and that the judges' security of tenure guaranty should not be "rendered meaningless and
inoperative" former Solicitor General Arturo A. Alafriz, president of the Philippine Lawyers'
Association who submit that the total abolition of all courts below the Supreme Court
(except the Sandiganbayan and the Court of Tax Appeals) and the removal of the
incumbent Justices and Judges "violates the independence of the judiciary, their security
of tenure and right to due process guaranteed them by the Constitution" and Atty. Raul M.
Gonzales, president of the National Bar Association of the Philippines who invokes the
Declaration of Delhi at the ICJ Conference in 1959, that "The principles of unremovability of
the Judiciary and their Security of Tenure until death or until a retiring age xed by statute
is reached, is an important safeguard of the Rule of Law" have greatly helped in fortifying
my views.
8. I had submitted in my memo of September 4, 1980 to the Presidential Committee
on Judicial Reorganization that "(W)hatever reorganization plans the committee may
recommend to meet the worldwide problem of congested court dockets, and to improve
judicial services in the public interest, it should be borne in mind that the members of the
judiciary as the weakest branch of government, yet called upon to safeguard the people's
rights and protect them from oppression, o cial and otherwise, are entitled to security of
tenure as guaranteed by the Constitution. Even though the lower courts may be reshu ed
or abolished in the process, the mandate and spirit of the Constitution guaranteeing their
security of tenure and maintaining the independence of the judiciary should be respected,
and they should be retained in the new courts."
In the same vein, Dean Cortez warned of the dire consequences of giving the questioned
provisions of the Act the "absolutist sense which they appear to have at rst blush" thus: "
(T)o accept legislative power to abolish courts asserted under Batas Pambansa Blg. 129
which sweeps through practically the entire judiciary would be to open the door to future
court abolitions in the guise of reorganization. At this stage of our political development,
the process of embarking upon a modi ed parliamentary system may well usher in a
situation where despite guarantees of judicial tenure, each ruling party in the legislature or
any alliance that can command a majority vote may periodically undertake complete
reorganization and remove judges, thus making of the judiciary a veritable straw in the
political wind," and "(F)uthermore, what can result in the modi ed parliamentary system
from the close working relationship between executive and legislature is made manifest in
Batas Pambansa Blg. 129. If the sweeping revamp provided were to be carried out the
President would appoint all of the justices and judges of the courts affected and the whole
membership in the judiciary from the highest to the lowest courts would be his
appointees. It is relevant to point out that it is precisely a situation like this that the
Constitution seeks to avoid when it provides staggered terms for the chairman and
members of the constitutional commissions which like the judiciary are guaranteed
independence."
9. The judges' security of tenure was rendered nugatory by the Transitory Provisions of
the 1973 Constitution which granted the incumbent President the unlimited power to
remove and replace all judges and o cials 1 6 (as against the limited one-year period for
the exercise of such power granted President Quezon in the 1935 Constitution upon
establishment of the Philippine Commonwealth). Upon the declaration of martial law in
September, 1972, justices and judges of all courts, except the Supreme Court, had been
required to hand in their resignations. There is listed a total of 53 judges who were
replaced or whose resignations were accepted by the President during the period from
September, 1972 to April, 1976. The power to replace even the judges appointed after the
effectivity on January 17, 1973 of the 1973 Constitution is yet invoked on behalf of the
President in the pending case of Tapucar vs . Famador 1 7 notwithstanding the generally
held view that such post-1973 Constitution appointed judges are not subject to the
Replacement Clause of the cited Transitory Provision. (In this case, petitioner judge
appointed on January 30, 1976 as judge of the Court of First Instance of Agusan del Norte
and Butuan City, Branch I, invoked his constitutional security of tenure and questioned the
appointment extended on February 26, 1980 to respondent to replace him, although he
had not been removed or otherwise dismissed from his position nor had he resigned
thereform. The Court per its March 27, 1980 resolution ordered both to refrain from
discharging the functions of the questioned o ce.) And now comes this total abolition of
1,663 judicial positions (and thousands of personnel positions) unprecedented in its
sweep and scope. The urgent need is to strengthen the judiciary with the restoration of the
security of tenure of judges, which is essential for a free and independent judiciary as
mandated by the Constitution, not to make more enfeebled an already feeble judiciary,
possessed neither of the power of the sword nor the purse, as decried by former Chief
Justice Bengzon in his Ocampo majority opinion:
"Shall we have judges of the type of Lord Coke? Or judges, who, in his place,
would have answered 'I'll do what his majesty pleases,' judges who, afraid of
ouster thru a judiciary reshu e, would rather serve the interest of the party in
power or of the political boss, than the interests of justice?
"As it is, the Judicial Department is feeble enough. Shall we render it feebler with
judges precariously occupying their o cial seats? Judges performing their duties
under the sword of Damocles of future judicial reorganizations?"
10. The Chief Justice, in his opinion for the Court, equally stressed that "what is equally
apparent is that the strongest ties bind the executive and legislative departments. It is
likewise undeniable that the Batasang Pambansa retains its full authority to enact
whatever legislation may be necessary to carry out national policy as usually formulated in
a caucus of the majority party. It is understandable then why in Fortun vs. Labang 1 8 it was
stressed that with the provision transferring to the Supreme Court administrative
supervision over the Judiciary, there is a greater need 'to preserve unimpaired the
independence of the judiciary, especially so at present, where to all intents and purposes,
there is a fusion between the executive and the legislative branches,'" 1 9 with the further
observation that "many are the ways by which such independence could be eroded." In the
cited case of Judge Fortun (likewise penned by the Chief Justice for the Court), the Court
issued a writ of prohibition and certiorari ordering the dismissal of the criminal complaint
led with respondent scal Labang by "disgruntled members of the bar with a record of
losing cases" in the judge's court and imposed the penalty of censure on each and
everyone of the private respondents-lawyers for the "unseemly haste" with which they led
the criminal complaint, abetted by "the appearance of sheer vindictiveness or oppressive
exercise of state authority." The Court marked the "violation of the cardinal principles of
fairness and due process that underlie the Rule of Law. Petitioner-Judge was not heard; he
was denied the opportunity to defend himself against the accusation. There was, on the
part of private respondents then, a failure to abide by a Resolution of the Integrated Bar
stressing that precisely integration could shield 'the judiciary which traditionally cannot
defend itself except within its own forum, from the assaults that politics and self-interest
may level at it, and assist it to maintain its integrity, impartiality and independence,'" and
that such subjection of a judge to public "harassment and humiliation . . . can diminish
public confidence in the courts." LLjur
11. This brings us to the allegedly underlying need for B.P. Blg. 129 discussed in the
course of committee hearings of Cabinet Bill No. 42 and the deliberation on second
reading in the Batasang Pambansa to rid the judiciary of incompetent and corrupt judges
and to restore con dence in the integrity of the courts. The purge has been the constant
subject of headlines and editorials, with the Ministry of Justice's Integrity Council
reportedly screening and conducting "integrity tests" as to new applicants and the
incumbent judges 2 0 and seeking "con dential information on corrupt and incompetent
judges to help the government purge the judiciary." 2 1 Prime Minister Cesar Virata was
quoted as saying that "'there will be a purge of the corrupt and the mis ts' when the
Judiciary Reorganization Act is signed into law by President Marcos and implemented in
coordination with the Supreme Court." 2 2 The public respondents' answer sidesteps the
issue of such purge contravening the rudiments of a fair hearing and due process and
submits that "no term of o ce is sacrosanct when demanded before the altar of the
public good." The metropolitan papers reported the "anxiety gripping the judiciary as the
Ministry of Justice has reportedly been asked to collate information 'on the performance
of the judges and on the quali cations of those slated to take over the positions of the
incompetent, the ine cient or those involved in irregularities.' As stated in an editorial,
'Somehow, the uncertainty that now hovers over the judiciary has unduly subjected the
judges to mental torture since they do not know when or whether the axe will fall on them.
Worse, the sword of Damocles hanging over their heads could provoke them into seeking
the help of people claiming to have influence with the powers that be." 23
But Dean Cortez in her memorandum states that "However, nowhere on public record is
there hard evidence on this. The only gures given in the course of the committee hearings
were to the effect that out of some 1,700 members of the judiciary, between 10 to 15 were
of the undesirable category, i.e. mis t, incompetent or corrupt. (Barredo, J., before the
Committee on Justice, Human Rights and Good Government, December 4, 1980)," and that
"(I)f this be the case, the unprecedented, sweeping and wholesale abolition of judicial
o ces becomes an arbitrary act, the effect of which is to assert the power to remove all
the incumbents guilty or innocent without due process of law." Nor would it be of any avail
to beg the question and assert that due process is not available in mass abolitions of
courts.
Justice Barredo, however, without citing any hard evidence, refers in his separate
concurrence to twin objectives of getting rid of "structural inadequacies of the system or
of the cumbersomeness and technicality-peppered and dragging procedural rules in force"
and of "a good number of those occupying positions in the judiciary (who) make a
mockery of justice and take advantage of their o ce for personal ends." He adds that "it is
my personal assessment of the present situation in our judiciary that its reorganization has
to be of necessity two-pronged, as I have just indicated, for the most ideal judicial system
with the most perfect procedural rules cannot satisfy the people and the interests of
justice unless the men who hold positions therein possess the character, competence and
sense of loyalty that can guarantee their devotion to duty and absolute impartiality, nay,
impregnability to all temptations of graft and corruption, including the usual importunings
and the fearsome albeit improper pressures of the powers that be," 2 4 and invokes the
adage of "grandes males, grandes remedios" to now uphold the validity of the Act. Cdphil
Former Senator Diokno in his memorandum anticipates the argument that "great ills
demand drastic cures" thus: "Drastic, yes — but not unfair nor unconstitutional. One does
not improve courts by abolishing them, any more than a doctor cures a patient by killing
him. The ills the judiciary suffers from were caused by impairing its independence; they will
not be cured by totally destroying that independence. To adopt such a course could only
breed more perversity in the administration of justice, just as the abuses of martial rule
have bred more subversion."
12. Finally, as stated by the 1975 Integrated Bar of the Philippines 2nd House of
Delegates, "It would, indeed, be most ironical if Judges who are called upon to give due
process cannot count it on themselves. Observance of procedural due process in the
separation of misfits from the Judiciary is the right way to attain a laudable objective."
As stressed by the Chief Justice in the Fortun case, judges are entitled to the cardinal
principles of fairness and due process and the opportunity to be heard and defend
themselves against the accusations made against them and not to be subjected to
harassment and humiliation, and the Court will repudiate the "oppressive exercise of legal
authority." More so, are judges entitled to such due process when what is at stake is their
constitutionally guaranteed security of tenure and non-impairment of the independence of
the judiciary and the proper exercise of the constitutional power exclusively vested in the
Supreme Court to discipline and remove judges after fair hearing.
In sum, I see no reason to change the stand submitted by me to the Presidential
Committee on Judicial Reorganization that —
Judges of inferior courts should not be summarily removed and branded for life in such
reorganization on the basis of con dential adverse reports as to their performance,
competence or integrity, save those who may voluntarily resign from o ce upon being
confronted with such reports against them. The trouble with such ex-parte reports, without
due process or hearing, has been proven from our past experience where a number of
honest and competent judges were summarily removed while others who were generally
believed to be basket cases have remained in the service; and
The power of discipline and dismissal of judges of all inferior courts, from the Court of
Appeals down, has been vested by the 1973 Constitution in the Supreme Court, and if the
judiciary is to be strengthened, it should be left to clean its own house upon complaint and
with the cooperation of the aggrieved parties and after due process and hearing. cdasia
The constitutional confrontation and con ict may well be avoided by holding that since the
changes and provisions of the challenged Act do not substantially change the nature and
functions of the "new courts" therein provided as compared to the "abolished old courts"
but provide for procedural changes, xed delineation of jurisdiction and increases in the
number of courts for a more effective and e cient disposition of court cases, the
incumbent judges' guaranteed security of tenure require that they be retained in the
corresponding "new courts."
Footnotes
1. Article X, Section 1, first sentence of the Constitution reads: "The judicial power shall be
vested in one Supreme Court and in such inferior courts as may be established by law."
2. Cf. Borromeo v. Mariano, 41 Phil. 322 (1921) and People v. Vera, 65 Phil. 56 (1937).
3. Article X, Section 7 of the Constitution.
4. It may be mentioned in passing that petitioners ignored the fact that an action for
declaratory relief should be filed in a Court of First Instance and apparently are unaware
that there is no such proceeding known in constitutional law to declare an act
unconstitutional. So it has been authoritatively ruled even prior to the 1935 Constitution,
and much more so after its effectivity and that of the present Constitution. That is the
concept of judicial review as known in the Philippines, a principle that goes back to the
epochal decision of Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137 (1803).
This court, then, as do lower courts, has the duty and the power to declare an act
unconstitutional but only as an incident to its function of deciding cases. Cf. Angara v.
Electoral Commission, 63 Phil. 139 (1936); People v. Vera, 65 Phil. 56 (1937).
5. Gualberto J. de la Llana is the Presiding Judge of Branch II of the City Court of
Olongapo. The other petitioners are all members of the Philippine bar.
6. He was assisted by Assistant Solicitor General Reynato S. Puno.
7. The amici curiae who argued were Senator Lorenzo Sumulong, President, Philippine
Constitution Association; Dean Irene Cortes, former Dean, U.P. College of Law; Atty.
Bellaflor Angara Castillo, President, U.P. Women Lawyers Circle; Atty. Paz Veto Planas,
President, Women Lawyers Association; Atty. Raul Roco, Executive Vice-President,
Integrated Bar of the Philippines; Atty. Enrique Syguia, President, Philippine Bar
Association; Atty. Rafael G. Suntay, for the Trial Lawyers Association; and Senator Jose
W. Diokno submitted memoranda. Atty. Raul Gonzales entered his appearance for
petitioner and argued by way of rebuttal. Atty. Ambrosio Padilla likewise submitted a
memorandum, which the Court allowed to stay in the records.
8. 65 Phil. 56 (1937).
9. Ibid, 89.
10. L-40004, January 31, 1975, 62 SCRA 275.
11. Ibid., 308.
12. Executive Order No. 611. The writer of this opinion was designated as Chairman, and
Minister Ricardo C. Puno as Co-Chairman. Two members of the Court, Justices Ramon
C. Aquino and Ameurfina A. Melencio-Herrera, as well as a former member, retired
Justice Felix Q. Antonio, were named to such body. Deputy Minister of Justice Jesus
Borromeo completed the membership.
13. Executive Order No. 619-A.
14. Report of the Committee on Judicial Reorganization, 5-6.
15. Ibid, 7.
16. Ibid, citing the President's foreword to The Philippine Development Plan, 2.
17. Ibid.
18. Ibid, 8. The last sentence of this portion of the Report reads: "That is to achieve the
democratization and humanization of justice in what has been felicitously referred to by
the First Lady as a 'compassionate society.'"
19. Ibid, 8-9.
20. Ibid, 9-10.
21. Ibid, 10.
22. Ibid.
23. Act No. 136. Cf. Act No. 2347 and 4007.
24. Commonwealth Act No. 3.
25. Ibid, Sec. 3, Under Commonwealth Act No. 259, the membership of the Court of Appeals
was increased to fifteen, with one Presiding Justice and fourteen Associate Justices.
Three divisions were created, five members in each division. The Act was approved on
April 7, 1938. In 1945 after the liberation of the Philippines, it was abolished by Executive
Order No. 37 of President Sergio Osmeña exercising his emergency power under
Commonwealth Act No. 671. It was established anew under Republic 52, which took
effect on October 4, 1946.
26. Republic Act No. 296.
27. Section 53 of this Act provided: "In addition to the District Judges mentioned in Section
forty-nine hereof, there shall also be appointed eighteen Judges-at-large and fifteen
Cadastral Judges who shall not be assigned permanently to any judicial district; and
who shall render duty in such district or province as may from time to time, be
designated by the Department Head." This Section was repealed by Republic Act No.
1186 (1954).
28. Cf. Republic Act No. 520 (1968) and Presidential Decree No. 289 (1973).
29. Presidential Decree No. 1482.
30. Republic Act No. 1125 (1954).
31. Republic Act No. 1267. It was amended by Presidential Decree No. 946 (1976).
32. Republic Act No. 1404. Subsequently, two more branches were added under
Presidential Decree No. 1439 (1978).
33. Republic Act Nos. 4834 and 4836. In 1978, there was a Presidential Decree providing
for Juvenile and Domestic Relations Courts in thirteen provinces and twenty-seven other
cities.
34. Republic Act No. 5179.
35. Explanatory Note, 5-6.
36. Sponsorship Speech of Minister Puno, Volume Four, Third Regular Session, 1980-81,
2013.
37. Ibid.
38. L-28573, June 13, 1968, 23 SCRA 998.
39. Ibid, 1003. Prior to such decision, the following cases had reaffirmed such a principle
Manalang v. Quitoriano, 94 Phil. 903 (1954); Rodriguez v. Montinola, 94 Phil. 964 (1954);
Gacho v. Osmeña Jr., 103 Phil. 837 (1958); Briones v. Osmeña Jr., 105 Phil 588 (1958);
Cuneta v. Court of Appeals, 111 Phil. 249 (1961); Facundo v. Hon. Pabalan, 114 Phil. 307
(1962), Alipio v. Rodriguez, 119 Phil. 59 (1963); Llanto v. Dimaporo, 123 Phil. 413 (1966);
Ocampo v. Duque, 123 Phil. 842 (1966); Guillergan v. Ganzon, 123 Phil. 1102 (1966);
Abanilla v. Ticao, L-22271, July 26, 1966, 17 SCRA 652; Cariño v. ACCFA, L-19808, Sept.
29, 1966, 18 SCRA 183; De la Maza v. Ochave, L-22336, May 23, 1967, 20 SCRA 142,
Arao v. Luspo, L-23982, July 21, 1967, 20 SCRA 722.
40. L-28614, January 17, 1974, 55 SCRA 34.
41. Enciso v. Remo, L-23670, September 30, 1969, 29 SCRA 580; Roque v. Ericta, L-30244,
September 28, 1973, 53 SCRA 156. Cf. City of Basilan v. Hechanova, L-23841, August 30,
1974, 58 SCRA 711.
42. 66 Phil. 615 (1938).
43. Commonwealth Act No. 145.

44. Ibid, 626.
45. Ibid, 626-627.
46. It likewise abolished the Court of Land Registration (1914).
47. 1932.
48. 66 Phil. 615, 626.
49. Batas Pambansa Blg. 129, Sections 3-12. It may be stated that the writer of this opinion
as the Chairman of the Committee on Reorganization, was for the establishment either
of (1) a court of general jurisdiction with an appellate as well as a trial division patterned
after that of the system of judicature found in the United Kingdom and in many
Commonwealth countries or, in the alternative, (2) of a circuit court of appeals. The
Committee accepted such proposals and incorporated them in the guidelines. Candor
compels the admission that he entertained doubts as to whether the intermediate court
of appeals provided for is a new tribunal. It could be considered though as part of an
integrated scheme for the judicial reorganization as contemplated by the Batasang
Pambansa.
50. Ibid, Sections 13-24.
51. Ibid, Section 27.
56. 94 Phil. 732 (1954).
57. Ibid, 734-735.
58. Ibid, 735.
59. According to Batas Pambansa Blg. 129, Section 2: "The reorganization herein provided
shall include the Court of Appeals, the Courts of First Instance, the Circuit Criminal
Courts, the Juvenile and Domestic Relations Courts, the Courts of Agrarian Relations, the
City Courts, the Municipal Courts, and the Municipal Circuit Courts."
60. Ibid, Section 44. Its last sentence reads: "The cases pending in the old Courts shall be
transferred to the appropriate Courts constituted pursuant to this Act, together with the
pertinent functions, records, equipment, property and the necessary personnel."
61. Hayden, The Philippines 67 (1945).
62. 67 Phil. 62 (1939).

63. 63 Phil. 139.
64. Ibid, 156.
65. Article VII, Section 1 of the 1973 Constitution.
66. Section 16 of Article VII of the 1973 Constitution reads as follows: "All powers vested in
the President of the Philippines under the 1935 Constitution and the laws of the land
which are not herein provided for or conferred upon any official shall be deemed and are
hereby vested in the President unless the Batasang Pambansa provides otherwise."
67. Section 1, Article VII of the 1935 Constitution.
68. Article VII, Section 1 of the Constitution, in its original form.
69. According to Article IX, Section 1 of the 1973 Constitution prior to its being amended
last year: "The Executive power shall be exercised by the Prime Minister with the
assistance of the Cabinet. The Cabinet, headed by the Prime Minister, shall consist of
the heads of ministries as provided by law. The Prime Minister shall be the head of the
Government."
70. G.R. No. 58184, October 30, 1981.
71. Ibid, 4. That characterization is in accordance with the Anglo-American concept of the
distinction between presidential and parliamentary systems. In the work of President
Marcos entitled, Marcos: Notes for the Cancun Summit 1981, the Conference appears to
have adopted such a distinction. Countries with the presidential systems sent their
presidents: C. Bendjedid of Algeria; A. Sattar of Bangladesh; J.B. de Oliviera Figuereido
of Brazil; F. Mitterand of France; A. Cheng of Guyana; H. Boigny of Ivory Coast; Lopez
Portillo of Mexico; A.S. Shagari of Nigeria; Ferdinand E. Marcos of the Philippines; J.K.
Nyerere of Tanzania; R. Reagan of the United States; L. Herrera Campins of Venezuela; S.
Kraigher of Yugoslavia. Likewise, countries under the parliamentary system sent their
Prime Ministers: P.E. Trudeau of Canada; Zhao Ziyang of China; M.H. Thatcher of the
United Kingdom; I. Gandhi of India; Z. Zuzuki of Japan; N.O.T. Falldin of Sweden. While
called Chancellors, B. Kreisky of Austria and H. Schmidt of Germany hold such a
position. Crown Prince Fahd Bin Abdul Aziz of Saudi Arabia does not fall under either
category.
72. Article IX, Sections 1 and 3 of the amended Constitution. Section 3 reads in full: "There
shall be an Executive Committee to be designated by the President, composed of the
Prime Minister as Chairman, and not more than fourteen other members, at least half of
whom shall be Members of the Batasang Pambansa. The Executive Committee shall
assist the President in the exercise of his powers and functions and in the performance
of his duties as he may prescribe."
73. L-38383, May 27, 1981, 104 SCRA 607.
74. Ibid, 615.
75. Article X, Section 6, provides: "The Supreme Court shall have administrative supervision
over all courts and the personnel thereof."
76. Article X, Section 7.
77. According to Section 67 of the Judiciary Act of 1948, as amended: "No District Judge
shall be separated or removed from office by the President of the Philippines unless
sufficient cause shall exist, in the judgment of the Supreme Court, involving serious
misconduct or inefficiency, for the removal of said judge from office after the proper
proceedings." Cf. Section 97 as to removal of municipal judges also by the President. Cf.
People v. Linsangan, 62 Phil. 646 (1935); De los Santos v. Mallare, 87 Phil. 289 (1950);
Martinez v. Morfe, L-34022, March 24, 1972, 44 SCRA 22, and Pamil v. Teleron, L-34854,
November 20, 1978, 86 SCRA 413.
78. Cf. Ginsburg, Judicial Repair of Legislation, 28 Cleveland State Law Review, 301-304
(1979).
79. G.R. Nos. 50581-50617, January 30, 1982.
80. Ibid, 12.
81. Section 7, Presidential Decree No. 537 (1974).
82. Tañada v. Cuenco 103 Phil. 1051 (1957) lends itself to the view that in the
interpretation of the fundamental law, the literal language is not necessarily controlling,
if thereby a constitutional objection could be plausibly raised.
83. The memoranda submitted by the Integrated Bar of the Philippines, the Philippine Bar
Association, the Women Lawyers Association of the Philippines, the U.P. Women
Lawyers Circle, the Philippine Women Lawyers Association, and the Philippine Trial
Lawyers Association of the Philippines were for dismissing the petition. The Philippine
Lawyers Association was for granting the petition. Amicus curiae Lorenzo Sumulong,
President of the Philippine Constitution Association, speaking on his own behalf, was of
a similar mind. Amicus curiae Dean Irene Cortes, former Dean of the U.P. College of Law,
was for dismissing the petition, while amicus curiae Jose W. Diokno was for granting it.
A memorandum allowed to stay in the records by former Senator Ambrosio Padilla was
for granting it. The Court acknowledges the aid it received from the memoranda
submitted.
84. 63 Phil. 139, 157 (1936).

85. Planas v. Gil, 67 Phil. 62, 73-74 (1939). The quotation from Justice Holmes came from
Springer v. Government of the Philippine Islands, 277 US 189, 211 (1928). He and
Justice Brandeis dissented, upholding the contention of the Filipino leaders that the
President of the Senate and the Speaker of the House of Represented of the then
Philippine Legislature could sit in a Board of Control with power to vote government
shares in corporations owned or controlled by it. The majority sustained the opposite
view, thus giving the then American Governor-General such prerogative.
86. Arnault v. Pecson, 87 Phil. 418, 426 (1950).

87. Chapter IV, Sec. 41 of Batas Pambansa Blg. 129.
88. L-32096, October 24, 1970, 35 SCRA 481. Cf. Agustin v. Edu, L-49112, February 2, 1979,
88 SCRA 195.
89. Ibid, 497.
90. G.R. No. 58184, October 30, 1981, 10.
91. Ibid, 11.
92. Ibid.
93. Batas Pambansa Blg. 129, section 43.
95. Article VII, Section 16 of the Amended Constitution provides: "All powers vested in the
President of the Philippines under the 1935 Constitution and the laws of the land which
are not herein provided for or conferred upon any official shall be deemed and are
hereby vested in the President unless the Batasang Pambansa provides otherwise."
Article VII, Section 10, par. (1) of the Constitution reads: "The President shall have control
of all the executive departments, bureaus, or offices, exercise general supervision over all
local governments as may be provided by law, and take care that the laws be faithfully
executed."
96. Batas Pambansa Blg. 129, Section 44.
97. This Court is ready with such a list to be furnished the President.
98. In the language of par. XI of the Proposed Guidelines for Judicial Reorganization: "The
services of those not separated shall be deemed uninterrupted. In such cases, efficiency,
integrity, length of service and other relevant factors shall be considered."
99. Cf. Roschen v. Ward, 279 US 337, 339 (1929).
100. From the standpoint of the writer of this opinion, as earlier noted, the assailed
legislation did not go far enough. It is certainly much more, to use the Lasswellian
phrase of being a "reverent modification of small particulars." For some it could be
characterized as a dose of conservation and a dash or innovation. That is, however, no
argument against its validity which, to repeat, is solely a question of power as far as this
Court is concerned.
101. Former Senators Salvador H. Laurel and Jose W. Diokno.
102. Fish, William Howard Taft and Charles Evan Hughes, 1975 Supreme Court Review
123.
103. Ibid. Cf. Bickel, Mr. Taft Rehabilitates the Court, 79 Yale Law Journal 1 (1969).
104. Article XIII, Section 1, first sentence of the Constitution reads: "Public office is a public
trust."
105. 57 O.G. 147 (1955).
106. Ibid. 153. The per curiam minute resolution of the Court reads as follows: "In Ocampo
et al. vs. The Secretary of Justice et al., G.R. No. L-7910, the petition was denied, without
costs, due to insufficient votes to invalidate Section 3 of Republic Act No. 1186. Chief
Justice Paras, and Justices Padilla, Reyes (A) and Labrador voted to uphold that
particular section; Justices Pablo, Bengzon, Montemayor, Hugo, Bautista, Concepcion
and Reyes, J.B.L., believe it is unconstitutional." At 147, Republic Act No. 1186, which
took effect on June 19,1954, abolished the positions of Judges-at-Large and Cadastral
Judges. There was a vigorous dissent from Justice Bengzon relying on certain American
State Supreme Court decisions notably from Indiana and Pennsylvania, but as noted in
the opinion of Justice Labrador, they could not be considered as applicable in view of
the difference in constitutional provisions. From Justices Montemayor and Bautista also
came separate opinions as to its unconstitutionality.
107. 41 Phil. 322 (1921).
108. Ibid, 333.

109. 57 Phil. 600 (1932).
110. Ibid, 605. The reference should now be to the Constitution, rather than an Organic Act
of an unincorporated American territory as the Philippines then was.
BARREDO , J., concurring:
1. And I am not fond of borrowing ideas from supposed legal acumen of alien judicial
figures no matter their recognized reputation.
2. Borromeo vs. Mariano, 41 Phil. 330.
3. G.R. No. L-7910, January 18, 1955, 51 O.G. 147.
4. Zandueta vs. De la Cuesta, 66 Phil. 615.

5. Brillo vs. Mejia, 94 Phil. 732.
GUERRERO, J., concurring:
1. See Cardozo, The Nature of the Judicial Process, p. 73.
2. Church of the Holy Trinity vs. U.S., 143 U.S. 457, cited in Willoughby On the Constitution
of the United States, 2nd ed., Vol. 1, p. 61.
3. Explanatory Note, Cabinet Bill No. 42 which became Batas Pambansa Blg. 129, The
Judiciary Reorganization Act of 1980.
4. Cardozo, The Nature of the Judicial Process, p. 66.
5. Chief Justice Castro, The Bar and the Congested Dockets, p. 5.
6. See Report of the Presidential Committee on Judicial Reorganization. Also Report of
Court Administrator.
7. See L-37399, May 29, 1974, 57 SCRA 123.
8. See L-30355, May 31, 1978, 83 SCRA 437, 450.
9. See L-46542, July 21, 1975, 84 SCRA 198, 203.
10. See L-49995, April 8, 1981.
11. See G.R. No. 54452, July 20, 1981.
12. See L-36161, December 19, 1973.

13. Rule 131, Section 5(m), Revised Rules of Court.
14. 31 C.J.S. 810.
15. Cruz vs. Primicias, Jr., L-28573, June 13, 1968, 23 SCRA 998; Bendanillo, Sr. vs.
Provincial Governor, L-28614, January 17, 1974, 55 SCRA 34; Enciso vs. Remo, L-23670,
Sept. 30, 1969, 29 SCRA 580; Roque vs. Ericta, L-30244, Sept. 28, 1973, 53 SCRA 156.
16. Morfe vs. Mutuc, L-20387, Jan. 31, 1968, 22 SCRA 424, 450.
17. Ibid.
18. Chief Justice Fernando, The Constitution of the Philippines, p. 48.
19. Ibid., p. 46.

20. Journal of the Batasan, Third Regular Session, Feb. 3, 1981, p. 12.
21. Brown vs. Russel, 166 Mass. 14, cited in Gonzales, Administrative Law, Law on Public
Officers and Election Law, 2nd ed., p. 148.
22. 42 Am. Jur. 881.
23. Ibid.
24. Cherokee, County vs. Savage, 32 So. 2nd 803.
25. McCulley vs. State. 53 S.W. 134.
26. Answer of Solicitor General, par. 22, p. 29.
27. Laurel, con., Zandueta vs. de la Cuesta (1938), 66 Phil. 615.

28. Missouri, K. & T. Co. vs. May, 194 U.S. 267, 270; People vs. Crane, 214 N.Y. 154, 173,
cited in Cardozo, The Nature of the Judicial Process, p. 90.
29. People vs. Vera (1937), 65 Phil. 56, See Chief Justice Fernando, The Power of Judicial
Review p. 110.
1. Constitution of the Philippines by Chief Justice Enrique M. Fernando, 1977 Edition, p.
177.
2. Roque vs. Ericta, 53 SCRA 156; Abanilla vs. Ticao, 17 SCRA 652; Cruz vs. Primicias, Jr.,
23 SCRA 998; Ocampo vs. Duque, 16 SCRA 962; Briones vs. Osmeña, 104 Phil. 588;
Urgelio vs. Osmeña, Jr., 9 SCRA 317; Gacho vs. Osmeña, 34 Phil. 208.
3. Delivered on Law Day, September 19, 1981 before the Philippine Bar Association.
4. Cf. G R. No. 58184, Free Telephone Workers Union vs. The Honorable Minister of Labor
and Employment, promulgated on October 30, 1981.
5. Ocampo vs. Secretary of Justice, 50 O.G. 147.
TEEHANKEE, J., dissenting:
1. With three vacancies.
2. Section 44, B.P. Blg. 129.
3. Ocampo vs. Secretary of Justice, G.R. No. L-1790, Jan. 18, 1955; 51 O.G. 147.
4. Art. X, section 7, 1973 Constitution, as amended (Art. VIII, Sec. 9, 1935 Constitution).
5. Cited in Chief Justice Fernando's The Constitution, p. 376; emphasis copied.
6. Art. X, Sec. 6, 1973 Constitution.
7. Idem. Art. X, Sec. 7.
8. Art. VIII, Sec. 7, 1935 Constitution.
9. Aruego, Framing of the Phil. Constitution, Vol. I, p. 513.
10. Sec. 23, B.P. Blg. 129.
10-a. At p. 16, fn. 50.

11. At p. 3 thereof.
12. Zandueta vs. De la Costa, 66 Phil. 615 (1935).
13. See the Chief Justice opinion, pp. 14-15.
14. At p. 8 thereof.
15. Citing Manalang vs. Quitoriano, 50 O.G. 2515.
16. Art. XVII, Sec. 9-10.

17. G.R. No. 53467 filed on March 27, 1980.
18. 104 SCRA 607 (March 27, 1981).

19. Main opinion at p. 21.
20. Phil. Daily Express issue of Aug. 24, 1981.
21. Times Journal issue of Aug. 16, 1981.
22. Evening Post issue of Aug. 11, 1981.
23. Metropolitan papers of Aug. 8, 1980. Times Journal editorial of Aug. 31, 1980.
24. At p. 5.

EN BANC
[G.R. No. L-27811. November 17, 1967.]
LACSON-MAGALLANES CO., INC. , plaintiff-appellant, vs. JOSE PAÑO,

HON. JUAN PAJO, in his capacity as Executive Secretary, HON.
JUAN DE G. RODRIGUEZ, in his capacity as Secretary of Agriculture
and Natural Resources , defendants-appellees.
Leopoldo M. Abellera for plaintiff-appellant.

Victorio Advincula for defendant Jose Paño.
Solicitor General for defendant Secretary of Agriculture and Natural Resources
and Executive Secretary.
SYLLABUS
1. CONSTITUTIONAL LAW; PRESIDENTIAL POWERS. — Appellant's claim that

decisions of the Director of Lands under Sec. 4 of Commonwealth Act 141 as to
questions of fact shall be conclusive when approved by the Secretary of Agriculture and
Natural Resources and therefore controlling not only upon the courts but also upon the
President, is incorrect. The President's duty to execute the law is of constitutional
origin. So, too, is his control of all executive departments. Thus it is that department
heads are men of his con dence. His is the power to appoint them, his, too, is the
privilege to dismiss them at pleasure. Naturally, he controls and directs their acts.
Implicit, then, is his authority to go over, con rm, modify or reverse the action taken by
his department secretaries. In this context, it may not be said that the President cannot
rule on the correctness of a decision of a department secretary.
2. ID.; ID.; DELEGATION OF POWERS; ACTS OF EXECUTIVE SECRETARY ACTING
BY AUTHORITY OF THE PRESIDENT ARE THOSE OF PRESIDENT HIMSELF. — It is
correct to say that constitutional powers there are which the President must exercise in
person. Not as correct, however, is it to say that the Chief Executive may not delegate
to his Executive Secretary acts which the Constitution does not command that he
perform in person, for the President is not expected to perform in person all the
multifarious executive and administrative functions. The Of ce of the Executive
Secretary is an auxiliary unit which assists the President. The rule which has thus gained
recognition is that under our constitutional set-up the Executive Secretary who acts -
for and in behalf and by authority of the President has an undisputed jurisdiction to
af rm, modify, or even reverse any order that the Secretary of Agriculture and Natural
Resources, including the Director of Lands, may issue. Where the Executive Secretary
acts "by authority of the President," his decision is that of the President's. Such decision
is to be given full faith and credit by our courts. The assumed authority of the Executive
Secretary is to be accepted. For, only the President may rightfully say that the Executive
Secretary is not authorized to do so. Therefore, unless the action taken is "disapproved
or reprobated by the Chief Executive," that remains the act of the Chief Executive, and
cannot be successfully assailed.
FERNANDO, J., concurring:

1. CONSTITUTIONAL LAW; EXECUTIVE DEPARTMENT; PRESIDENT'S POWER OF
CONTROL AND DIRECTION OVER THE EXECUTIVE DEPARTMENTS; ACTS OF
DEPARTMENT SECRETARIES PRESUMPTIVELY THE ACTS OF THE PRESIDENT. — In
the leading case of Villena v. Secretary of Interior, 67 Phil. (1939), the Supreme Court
held: "After serious re ection, we have decided to sustain the contention of the
government in this case on the broad proposition, albeit not suggested, that under the
presidential type of government which we have adopted and considering the
departmental organization established and continued in force by paragraph 1, section
12, Article VII, of our Constitution, all executive and administrative organizations are
adjuncts of the Executive Department, the heads of the various executive departments
are assistants and agents of the Chief Executive, and, except in cases where the Chief
Executive is required by the Constitution or the law to act in person or the exigencies of
the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the
executive departments, and the acts of the secretaries of such departments, performed
and promulgated in the regular course of business, are, unless disapproved or
reprobated by the Chief Executive, presumptively the acts of the Chief Executive.
2. ID.; ID.; HEADS OF THE VARIOUS EXECUTIVE DEPARTMENTS ARE THE
PRESIDENT'S ALTER EGO. — The rst section of Article VII of the Constitution, dealing
with the Executive Department, begins with the enunciation of the principle that "the
executive power shall be vested in a President of the Philippines." This means that the
President of the Philippines is the Executive of the Government of the Philippines and
no other. The heads of the executive departments occupy political positions and hold
of ce in an advisory capacity, and, in the language of Tomas Jefferson, `should be of
the President's bosom con dence' (7 Writings Ford ed., 498), and, in the language of
Attorney-General Cushing (7 Op., Attorney-General, 453), àre subject to the direction of
the President.' Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the Chief
Executive.
DECISION
SANCHEZ , J : p
The question — May the Executive Secretary, acting by authority of the President,
reverse a decision of the Director of Lands that had been af rmed by the Secretary of
Agriculture and Natural Resources — yielded an af rmative answer from the lower
court. 1
Hence, this appeal certi ed to this Court by the Court of Appeals upon the
provisions of Sections 17 and 31 of the Judiciary Act of 1948, as amended.
The undisputed controlling facts are:
In 1932, Jose Magallanes was a permittee and actual occupant of a 1,103-
hectare pasture land situated in Tamlangon, Municipality of Bansalan, Province of
Davao.
On January 9, 1953, Magallanes ceded his rights and interests to a portion
(392.7569 hectares) of the above public land to plaintiff.
On April 13, 1954, the portion Magallanes ceded to plaintiff was of cially
released from the forest zone as pasture land and declared agricultural land.
On January 26, 1955, Jose Paño and nineteen other claimants 2 applied for the
purchase of ninety hectares of the released area.
On March 29, 1955, plaintiff corporation in turn led its own sales application
covering the entire released area. This was protested by Jose Paño and his nineteen
companions upon the averment that they are actual occupants of the part thereof
covered by their own sales application.
The Director of Lands, following an investigation of the con ict, rendered a
decision on July 31, 1956, giving due course to the application of plaintiff corporation,
and dismissing the claim of Jose Paño and his companions. A move to reconsider
failed.
On July 5, 1957, the Secretary of Agriculture and Natural Resources — on appeal
by Jose Paño for himself and his companions — held that the appeal was without merit
and dismissed the same.
The case was elevated to the President of the Philippines.
On June 25, 1958, Executive Secretary Juan Pajo, "[b] y authority of the
President," decided the controversy, modi ed the decision of the Director of Lands as
af rmed by the Secretary of Agriculture and Natural Resources, and (1) declared that "it
would be for the public interest that appellants, who are mostly landless farmers who
depend on the land for their very existence, be allocated that portion on which they have
made improvements"; and (2) directed that the controverted land (northern portion of
Block I, LC Map 1749, Project No. 27, of Bansalan, Davao, with Latian River as the
dividing line) "should be subdivided into lots of convenient sizes and allocated to actual
occupants, without prejudice to the corporation's right to reimbursement for the cost
of surveying this portion." It may be well to state, at this point, that the decision just
mentioned, signed by the Executive Secretary, was planted upon the facts as found in
said decision.
Plaintiff corporation took the foregoing decision to the Court of First Instance
praying that judgment be rendered declaring: (1) that the decision of the Secretary of
Agriculture and Natural Resources has full force and effect; and (2) that the decision of
the Executive Secretary is contrary to law and of no legal force and effect.
And now subject of this appeal is the judgment of the court a quo dismissing
plaintiff's case.
1. Plaintiff's mainstay is Section 4 of Commonwealth Act 141. The precept there
is that decisions of the Director of Lands "as to questions of fact shall be conclusive
when approved" by the Secretary of Agriculture and Natural Resources. Plaintiff's
trenchant claim is that this statute is controlling not only upon courts but also upon the
President.
Plaintiff's position is incorrect. The President's duty to execute the law is of
constitutional origin. 3 So, too, is his control of all executive departments. 4 Thus it is,
that department heads are men of his confidence. His is the power to appoint them; his,
too, is the privilege to dismiss them at pleasure. Naturally, he controls and directs their
acts. Implicit then is his authority to go over, con rm, modify or reverse the action
taken by his department secretaries. In this context, it may not be said that the
President cannot rule on the correctness of a decision of a department secretary.
Particularly in reference to the decisions of the Director of Lands, as af rmed by
the Secretary of Agriculture and Natural Resources, the standard practice is to allow
appeals from such decisions to the Of ce of the President. 5 This Court has recognized
this practice in several cases. In one, the decision of the Lands Director as approved by
the Secretary was considered superseded by that of the President's on appeal. 6 In
other cases, failure to pursue or resort to this last remedy of appeal was considered a
fatal defect, warranting dismissal of the case, for non-exhaustion of all administrative
remedies. 7
Parenthetically, it may be stated that the right to appeal to the President reposes
upon the President's power of control over the executive departments. 8 And control
simply means "the power of an of cer to alter or modify or nullify or set aside what a
subordinate of cer had done in the performance of his duties and to substitute the
judgment of the former for that of the latter." 9
This unquestionably negates the assertion that the President cannot undo an act
of his department secretary.
2. Plaintiff next submits that the decision of the Executive Secretary herein is an
undue delegation of power. The Constitution, petitioner asserts, does not contain any
provision whereby the presidential power of control may be delegated to the Executive
Secretary. It is argued that it is the constitutional duty of the President to act personally
upon the matter.
It is correct to say that constitutional powers there are which the President must
exercise in person. 1 0 Not as correct, however, is it to say that the Chief Executive may
not delegate to his Executive Secretary acts which the Constitution does not command
that he perform in person. 1 1 Reason is not wanting for this view. The President is not
expected to perform in person all the multifarious executive and administrative
functions. The of ce of the Executive Secretary is an auxiliary unit which assists the
President. The rule which has thus gained recognition is that "under our constitutional
setup the Executive Secretary who acts for and in behalf and by authority of the
President has an undisputed jurisdiction to af rm, modify, or even reverse any order"
that the Secretary of Agriculture and Natural Resources, including the Director of Lands,
may issue. 1 2
3. But plaintiff underscores the fact that the Executive Secretary is equal in rank
to the other department heads, no higher than anyone of them. From this, plaintiff
carves the argument that one department head, on the pretext that he is an alter ego of
the President, cannot intrude into the zone of action allocated to another department
secretary. This argument betrays lack of appreciation of the fact that where, as in this
case, the Executive Secretary acts "[b]y authority of the President," his decision is that
of the President's. Such decision is to be given full faith and credit by our courts. The
assumed authority of the Executive Secretary is to be accepted. For, only the President
may rightfully say that the Executive Secretary is not authorized to do so. Therefore,
unless the action taken is "disapproved or reprobated by the Chief Executive," 1 3 that
remains the act of the Chief Executive, and cannot be successfully assailed. 1 4 No such
disapproval or reprobation is even intimated in the record of this case.
For the reasons given, the judgment under review is hereby af rmed. Costs
against plaintiff. So ordered.
Concepcion, C . J ., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Castro
and Angeles, JJ ., concur.

Separate Opinions
FERNANDO , J ., concurring :
The learned opinion of Justice Sanchez possesses merit and inspires assent. A
further observation may not be amiss concerning that portion thereof which speaks of
"the standard practice" allowing appeals from [decisions of Secretary of Natural
Resources af rming the action taken by the Director of Lands] to the Of ce of the
President. That for me is more than a "standard practice." It is sound law. The
constitutional grant to the President of the power of control over all executive
departments, bureaus and offices yields that implication. 1
If this were all, there would be no need for an additional expression of my views. I
feel constrained to do so however in order to emphasize that the opinion of the Court
appears to me to re ect with greater delity the constitutional intent as embodied in
the above provision vesting the power of control in the Presidency.
The question asked in the opening paragraph of the opinion — "May the Executive
Secretary, acting by authority of the President, reverse a decision of the Director of
Lands that had been af rmed by the Secretary of Agriculture and Natural Resources [?]"
— merits but one answer. It must be in the unquali ed af rmative. So the Court holds.
That is as it should be. Any other view would be highly unorthodox.
Nonetheless, the thought seems to lurk in the opinion of a respectable number of
members of the bar that a provision as that found in the Public Land Act to the effect
that decisions of Director of Lands on questions of facts shall be conclusive when
approved by the Secretary of Agriculture and Natural Resources 2 constitute a
limitation of such power of control. This view might have gained plausibility in the light
of Ang-Angco v. Castillo, 3 where the procedure set forth in the Civil Service Act in 1959
was held binding in so far as the President is concerned in the case of disciplinary
action taken against non-presidential appointees.
The argument that what the then Executive Secretary acting for the President did
was justi ed by the constitutional grant of control elicited no favorable response. The
Court apparently was not receptive to a more expansive view of such executive
prerogative. This is not to say that what was there decided was entirely lacking in
justi cation. It is merely to suggest that it may contain implications not in conformity
with the broad grant of authority constitutionally conferred on the President.
It is well-worth emphasizing that-the President unlike any other of cial in the
Executive Department is vested with both "constitutional and legal authority" 4 as
Justice Laurel noted. Care is to be taken then lest by a too narrow interpretation what
could reasonably be included in such competence recognized by the Constitution be
unduly restricted. If my reading of the opinion of Justice Sanchez is correct, then there
is a more hospitable scope accorded such power of control. For me this is more in
keeping with the fundamental law. Moreover there would be a greater awareness on the
part of all of the broad range of authority the President possesses by virtue of such a
provision.
Reference to the words of Justice Laurel, who was himself one of the leading
framers of the Constitution and thereafter, as a member of this Court, one of its most
authoritative expounders, in the leading case of Villena v. Secretary of Interior, 5 is not
inappropriate. Their reverberating clang, to paraphrase Justice Cardozo, should drown
all weaker sounds. Thus: "After serious re ection, we have decided to sustain the
contention of the government in this case on the broad proposition, albeit not
suggested, that under the presidential type of government which we have adopted and
considering the departmental organization established and continued in force by
paragraph 1, section 21, Article VII, of our Constitution, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in
cases where the Chief Executive is required by the Constitution or the law to act in
person or the exigencies of the situation demand that he act personally, the
multifarious executive and administrative functions of the Chief Executive are
performed by and through the executive departments, and the acts of the secretaries of
such departments, performed and promulgated on the regular course of business, are,
unless disapproved or reprobated by the Chief Executive, presumptively the acts of the
Chief Executive. (Runkle vs. United States [1887], 122 U.S. 543; 30 Law. ed. 1167; 7
Sup. St. Rep., 1141; see also U.S. vs. Eliason [1839], 16 Pet. 291; 10 Law. ed., 968;
Jones vs. U.S. [1890], 137 U.S. 202; 34 Law. ed., 691. 11 Sup. Ct., Rep., 80; Wolsey vs.
Chapman [1880], 101 U.S., 755; 25 Law ed., 915; Wilcox vs. Jackson [1836], 13 Pet.,
498; 10 Law. ed., 264)."
The opinion of Justice Laurel continues: "Fear is expressed by more than one
member of this court that the acceptance of the principle of quali ed political agency in
this and similar cases would result in the assumption of responsibility by the President
of the Philippines for acts of any member of his cabinet, however illegal, irregular or
improper may be these acts. The implications, it is said, are serious. Fear, however, is
no valid argument against the system once adopted, established and operated.
Familiarity with the essential background of the type of government established under
our Constitution, in the light of certain well-known principles and practices that go with
the system, should offer the necessary explanation. With reference to the Executive
Department of the government, there is one purpose which is crystal-clear and is readily
visible without the projection of judicial searchlight, and that is, the establishment of a
single, not plural, Executive. The rst section of Article VII of the Constitution, dealing
with the Executive Department, begins with the enunciation of the principle that `The
executive power shall be vested in a President of the Philippines.' This means that the
President of the Philippines is the Executive of the Government of the Philippines, and
no other. The heads of the executive departments occupy political positions and hold
of ce in an advisory capacity, and, in the language of Thomas Jefferson, `should be of
the President's bosom con dence' (7 Writings, Ford ed., 498), and, in the language of
Attorney-General Cushing (7 Op., Attorney- General, 453), àre subject to the direction of
the President'. Without minimizing the importance of the heads of the various
departments, their personality is in reality but the projection of that of the President.
Stated otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme
Court of the United States, èach head of a department is, and must be the President's
alter ego in the matter of that department where the President is required by law to
exercise authority' (Myers v. United States, 47 Sup. Ct. Rep., 21 at 30; 272 U.S., 52 at
133; 71 Law. ed., 160). Secretaries of departments, of course, exercise certain powers
under the law but the law cannot impair or in any way affect the constitutional power of
control and direction of the President. As a matter of executive policy, they may be
granted departmental autonomy as to certain matters but this is by mere concession
of the executive, in the absence of valid legislation in the particular eld. If the
President, then, is the authority in the Executive Department, he assumes the
corresponding responsibility. The head of a department is a man of his con dence; he
controls and directs his acts; he appoints him and can remove him at pleasure; he is the
executive, not any of his secretaries. It is therefore logical that he, the President, should
be answerable for the acts of administration of the entire Executive Department before
his own conscience no less than before that undefined power of public opinion which, in
the language of Daniel Webster, is the last repository of popular government. These are
the necessary corollaries of the American presidential type of government, and if there
is any defect, it is attributable to the system itself. We cannot modify the system unless
we modify the Constitution, and we cannot modify the Constitution by any subtle
process of judicial interpretation or construction."
Concepcion, C . J . and Castro, J ., concur.
Footnotes
1. Special Civil Case No. 2792, Court of First Instance of Davao, Branch II.
2. Julian Balala, Magdalena Balala, Florencio Aguinaldo, Pedro Roguian, Carlos Francisco, Jose
Pascua, Agapito Viernes, Ricardo Villanueva, Cezario Butava, Vicente Riya, Pedro Ringor,
Jose Bartolome, Benjamin Simon, Carlos Villanueva, Esmio Simon, Gregorio Domingo,
Fernando Roguian, Severino Cape, and Sixto de la Cruz.
3. Section 7, Article VII, Philippine Constitution.
4. Section 10(1), Article VII, id.
5. Castrillo, Law on Natural Resources, 1957 ed., p. 118.
6. Castillo vs. Rodriguez, L-17189, June 22, 1965. See also: Extensive Enterprises vs. Sarbro &
Co., Inc., L-22383 & L-22386, May 16, 1966.
7. Ham vs. Bachrach Motor Co., Inc., L-13677, October 31, 1960; Calo vs. Fuertes, L-16537, June
29, 1962.
8. H a m vs. Bachrach, supra; Suarez vs. Reyes, L-19828, February 28, 1963; Extensive
Enterprises vs. Sarbro & Co., supra, citing Section 10(1) of Article VII of the Constitution.
9. Mondano vs. Silvosa, 97 Phil. 143, 148; also quoted in Ham vs. Bachrach, supra; Extensive
Enterprises vs. Sarbro & Co., supra.
10. Powers to suspend the writ of habeas corpus, to proclaim martial law [Section 10 (2), Art.
VII, Phil. Constitution] and to grant reprieves, commutations, and pardons, and remit
nes and forfeitures [Sec. 10 (6), idem] mentioned in Villena vs. Secretary of Interior, 67
Phil. 451, 462-463.
11. Executive Order 94, October 4, 1947, provides in Sec. 27: that "[t]he Executive Secretary . . .
shall exercise such powers, functions, and duties as may be assigned to him by the
President from time to time . . .".
12. Extensive Enterprises vs. Sarbro & Co., supra. See: Pajo vs. Ago, L-15414, June 30, 1960,
and citations at footnote 8 herein. See also: Martin, Revised Administrative Code, 1962
ed., Vol. III, pp. 868-869.
13. Villena vs. Secretary of Interior, supra, at p. 463. Cf . Ykalina vs. Oricio, 93 Phil. 1076, 1080.
14. Pozon vs. Executive Secretary (C.A.), 55 O.G. No. 18, pp. 3302, 3305. Article VII, Section
10(1) of the Constitution.
FERNANDO, J., concurring:
1. Article VII, Section 10(1) of the Constitution.
2. Sec. 4, Commonwealth Act No. 941 (1936).
3. L-17169, November 30, 1963.
4. Planas v. Gil (1939) 69 Phil. 52, at p. 76.

5. 67 Phil. 451 (1939). As far as presidential power of supervision over local governments is
concerned, its authority has been impaired by Hebron v. Reyes, 104 Phil. 175 (1958).

FIRST DIVISION
[G.R. No. L-54554. March 30, 1981.]
EUSTAQUIO M. MEDALLA, JR. , petitioner, vs. THE HONORABLE

MARCELINO N. SAYO, Judge of the CFI of Rizal, Branch XXXIII and
HONORATO G. MACKAY, acting Hospital Administrator of the
Caloocan City General Hospital and the CITY MAYOR OF
CALOOCAN , respondents.
Manuel A. Abad for petitioner.

Juan P. Bañaga for respondent City Mayor.
Teofilo F. Manalo for respondent Mackay.
SYNOPSIS
The Mayor of Caloocan City appointed Dr. Mackay, a Resident Physician, to the position of
Hospital Administrator of the Caloocan City General Hospital, in disregard of the Decision
of the Presidential Executive Assistant sustaining the Order of the Civil Service
Commission which revoked the appointment of Dr. Mackay as Assistant Hospital
Administrator and found the protestant Chief of Clinics, Dr. Medalla, entitled to the said
position, being next in rank and possessed of the same qualifications as Dr. Mackay. On
protest by Dr. Medalla, the Civil Service Commission disapproved Dr. Mackay's
appointment and ordered the Mayor to appoint the protestant instead. Mackay moved for
reconsideration but before the same could be resolved, he filed a petition for certiorari,
prohibition and mandamus with preliminary injunction with the Court of First Instance
which Dr. Medalla sought to dismiss but failed. Hence, this petition to restrain the Court of
First Instance from proceeding with the hearing of the case for lack of jurisdiction.
The Supreme Court upheld the jurisdiction of the Court of First Instance to review by
Certiorari decisions and/or resolutions of the Civil Service Commission and of the
Presidential Executive Assistant; but rather than remanding the case for further
proceedings decided the case on the merits holding, that no grave abuse of discretion was
committed by the Civil Service Commission and the Presidential Executive Assistant since
(1) the appointing power of the City Mayor is subject to the next-in-rank rule of the Civil
Service law, rules and regulations; (2) the petitioner has followed the prescribed
administrative procedure for redress of his grievance; and (3) the assailed Decision
contains a judicious assessment of the qualifications of both the contenders for the
position.
Petition granted.
SYLLABUS
1. CONSTITUTIONAL LAW; JUDICIAL REVIEW; JURISDICTION OF COURTS OF FIRST

INSTANCE TO REVIEW BY CERTIORARI DECISIONS OF THE CIVIL SERVICE COMMISSION
AND THE OFFICE OF THE PRESIDENT; RATIONALE THEREFOR. — The power of judicial
review should be upheld in so far as jurisdiction of the Court of First Instance to review by
Certiorari decisions and/or resolutions of the Civil Service Commission and of the
Presidential Executive Assistant is concerned. The Supreme Court has ruled that "when a
presidential act is challenged before the courts of justice, it is not to be implied therefrom
that the Executive is being made subject and subordinate to the courts. The legality of his
acts are under judicial review, not because the Executive is inferior to the courts, but
because the law is above the Chief Executive himself, and the courts seek only to interpret,
apply or implement it (the law). A judicial review of the President's decision on a case of an
employee decided by the Civil Service Board of Appeals should be viewed in this light and
the bringing of the case to the Courts should be governed by the same principles as
govern the judicial review of all administrative officers." (Montes vs. Civil Service Board of
Appeals, et al., 101 Phil 490, 492-493 [1957]. Further, "the courts may always examine into
the exercise of power by a ministerial officer to the extent of determining whether the
particular power has been granted to the officer, whether it is a legal power that could have
been granted to him, and whether it has been exercised in a legal manner. This jurisdiction
does not depend upon an act of the legislature authorizing it, but inheres in the courts of
general jurisdiction as an essential function of the judicial department. (State Racing
Commission v. Latonia Agri. Asso. 123 SW 681)" (2Am. Jur. 2d, Administrative Law § 566
p. 379).
2. ADMINISTRATIVE LAW; CITY MAYOR; POWER OF APPOINTMENT; LIMITATIONS
THEREON; CASE AT BAR. — Under the Revised Charter of the City of Caloocan (RA No.
5502), it is clear that the power of appointment by the City Mayor of heads of offices
entirely paid out of city funds is subject to Civil Service law, rules and regulations (ibid.,
section 19). The Caloocan City General Hospital is one of the city departments provided
for in said law (ibid., section 17). The Hospital Administrator is appointed by the City
Mayor (ibid., section 66-B).
3. ID.; CIVIL SERVICE DECREE (PRESIDENTIAL DECREE NO. 807); SELECTION OF
EMPLOYEES FOR PROMOTIONS; NEXT-IN- RANK RULE. — Under section 19(3) of the Civil
Service Decree (Presidential Decree No. 807, effective October 6, 1975), the recruitment or
selection of employees for promotions is drawn from the next-in-rank.
4. ID.; ID.; ID.; ID.; ADMINISTRATIVE PROCEDURE BY AGGRIEVED EMPLOYEE IN CASE
OF NON-OBSERVANCE OF RULE; FOLLOWED BY PETITIONER IN CASE AT BAR — Section
19(6) of Presidential Decree No. 807 provides that "A qualified next-in-rank employee shall
have the right to appeal initially to the department head and finally to the Office of the
President an appointment made . . . (2) in favor of one who is not next-in-rank, . . .if the
employee making the appeal is not satisfied with the written special reason or reasons
given by the appointing authority for such appointment: . . . ." The prescribed procedure
has been followed by petitioner Medalla. He had appealed to the department head and
from thence, in view of the latter's unfavorable action, to the Civil Service Commission and
thereafter to the Office of the President.
5. ID.; ID.; ID.; ID.; APPLIED TO CASE AT BAR. — Petitioner Medalla is entitled to
appointment as Hospital Administrator for, while his qualifications are at par with those of
private respondent Mackay, yet, it is clear that the position of Medalla as Chief of Clinics is
the next lower position to Hospital Administrator under the organizational line-up of the
hospital. Consequently, at the time of Mackay's appointment as Assistant Hospital
Administrator, Medalla outranked Mackay who was only a Resident Physician and,
therefore, as the next- in-rank, Medalla is entitled to appointment as Hospital
Administrator.
6. ID.; ID.; ID.; ID.; REVOCATION OF APPOINTMENT IN CASE AT BAR NOT ARBITRARY.
— The revocation of Mackay's appointment reveals no arbitrariness nor grave abuse of
discretion. Although it is true that, as respondent City Mayor alleges, a local executive
should be allowed the choice of men of his confidence, provided they are qualified and
eligible, who in his best estimation are possessed of the requisite reputation, integrity,
knowledgeability, energy and judgment, however, the Decision of the Civil Service Merit
Systems Board, upheld by the Office of the President, contains a judicious assessment of
the qualifications of both petitioner Medalla and private respondent Mackay for the
contested position, revealing a careful study of the controversy between the parties, which
cannot be ignored.
DECISION
MELENCIO-HERRERA , J : p
In this Petition for "Certiorari, Mandamus and Prohibition", seeking the dismissal of Civil
Case No. C-7770 below, we have, as factual background, the following:
Petitioner, Dr. Eustaquio M. Medalla, Jr., is the Chief of Clinics of the Caloocan City General
Hospital, Caloocan City. Private respondent, Dr. Honorato G. Mackay, was the Resident
Physician thereat.
When the position of Assistant Hospital Administrator of the Caloocan City General
Hospital became vacant upon the resignation of the incumbent, former Caloocan City
Mayor Alejandro A. Fider designated and subsequently appointed, as Assistant Hospital
Administrator, private respondent Dr. Mackay, a Resident Physician in said hospital.
Petitioner, Dr. Medalla, Jr., protested Dr. Mackay's designation and subsequent
appointment alleging among others that, as Chief of Clinics, he (Medalla) was next-in-rank.
The then Acting City Mayor Virgilio P. Robles, who succeeded former Mayor, now
Assemblyman Alejandro A. Fider, in his 4th Indorsement dated September 20, 1978,
sustained Mackay's appointment stating: Cdpr
". . . as of April 18, 1978 when Dr. Honorato G. Mackay was promoted to Assistant
Hospital Administrator from his previous position of Resident Physician, he was
next in rank to the said higher position by reason of his having completed all
academic requirements for the Certificate in Hospital Administration . . . contrary
to the claim of Dr. Eustaquio Medalla, Jr. in his letter of May 2, 1978."
"xxx xxx xxx"
Dissatisfied, Medalla elevated his case to the Civil Service Commission on appeal. On
December 29, 1978, the Civil Service Merit Systems Board issued Resolution No. 49
sustaining Medalla's appeal and revoking Mackay's appointment as Assistant Hospital
Administrator. The pertinent portion of the aforestated Resolution reads: cdrep
"A perusal of the records shows that appellant Medalla is the Chief of Clinics of
the Caloocan City General Hospital; he is a holder of the Degree of Doctor of
Medicine; he has completed the requirements in Hospital Administration and is
recommended for the title of Certificate in Hospital Administration; he is also a
candidate of a Masters degree in Hospital Administration. He possesses the First
Grade eligibility (RA 1080) and had undergone relevant training in Hospital
Administration. His performance rating is 'Very Satisfactory'.
"On the other hand, appellee Mackay had been a Resident Physician, the position
he held prior to his promotion to the contested position. He is a holder of the
degree of Doctor of Medicine and is a First Grade eligible (BA 1080-Medical
Board). He is a graduate student in Hospital Administration and as of September
18, 1978 he has completed all academic requirements for a certificate in Hospital
Administration. His performance rating is 'Very Satisfactory'.
"A perusal of the organizational chart of the Ospital ng Caloocan approved by the
Hospital Administrator would show that the Chief of Clinics is the next lower
position to the Assistant Hospital Administrator. The Resident Physician is not a
next lower position to the Assistant Hospital Administrator. Therefore, Medalla
and not Mackay is the person next in rank who may be promoted to the position
involved.
"Moreover, even on the basis of competence and qualifications to perform the
duties of the position, the records show that Dr. Medalla is more competent and
qualified than Dr. Mackay. The qualification relied upon by the Acting City Mayor
in justifying the appointment of Dr. Mackay which is his having completed the
academic requirements for the Certificate in Hospital Administration does not
give Dr. Mackay the advantage inasmuch as Dr. Medalla has also completed all
the academic requirements for a certificate in Hospital Administration and is
recommended for a title of Certificate in Hospital Administration apart from being
also a candidate for a Masters degree in Hospital Administration." 1
Upon automatic review by the Office of the President, pursuant to section 19(6), PD No.
807, Presidential Executive Assistant Jacobo C. Clave rendered a Decision on April 24,
1979 declaring that:
"WHEREFORE, premises considered, and as recommended by Civil Service
Commission, the appointment of Dr. Honorato G. Mackay as Assistant Hospital
Administrator in the Caloocan City General Hospital is hereby revoked and the
position awarded in favor of appellant Dr. Eustaquio M. Medalla." 2
The Acting City Mayor, on behalf of Mackay, moved for reconsideration.

On May 7, 1979, totally disregarding the Decision of the Office of the President, the same
Acting City Mayor appointed Mackay, this time as Hospital Administrator, and designated
Dr. Tantoco as his Assistant, thereby again completely by-passing Medalla. Mackay took
his oath of office on May 7, 1979.
On June 27, 1979, however, the Civil Service Commission, acting on Medalla's protest, and
besides calling attention to the penal provision of P.D. No. 807, disapproved Mackay's
appointment as follows: Cdpr
"Wherefore, premises considered and finding the protest of Dr. Medalla in order,
the appointment of Dr. Mackay as Hospital Administrator at P26,388 per annum
effective May 7, 1979 is hereby disapproved. It is hereby ordered that Dr. Medalla
be appointed to the position of Hospital Administrator of the Caloocan City
General Hospital." 3
On July 20, 1979, Mackay moved for reconsideration asserting 1) denial of due process of
law inasmuch as the contested Resolution/Decisions were issued ex-parte, and 2) that the
Civil Service Commission cannot ignore nor overrule an appointment made by a City
Executive.
Without awaiting the resolution of his Motion for Reconsideration, Mackay filed, on July 23,
1979, before the Court of First Instance of Rizal, Caloocan City, presided by respondent
Judge, a Petition for "Certiorari, Prohibition and Mandamus with Preliminary Injunction and
Damages" (Civil Case No. C-7770) against Hon. Jacobo Clave, the Civil Service
Commission, the Acting City Mayor, the City Treasurer, and Medalla, praying that said
respondents be restrained from implementing the Decision of Hon. Jacobo Clave of April
24, 1979, the Resolution No. 49 of the Merit Systems Board dated December 29, 1978, and
the Decision of the Civil Service Commission of June 27, 1979. The Court a quo issued the
Restraining Order prayed for on July 25, 1979 enjoining implementation of the aforestated
Resolution/Decisions.
On August 2, 1979, Medalla moved to dissolve the Restraining Order and to dismiss the
Petition alleging mainly that Mackay had not exhausted his administrative remedies and
that the latter's right to a Writ of Preliminary Injunction was not only dubious or debatable
but was clearly non-existent. Hon. Jacobo Clave and the Civil Service Commission likewise
filed a Motion to Dismiss on the same ground of failure to exhaust administrative
remedies.
On August 13, 1979, Mackay moved to suspend proceedings pending final resolution by
the Civil Service Commission of his Motion for the reconsideration of the Decision of said
Commission dated June 27, 1979.
On September 24, 1979, the Trial Court denied both Motions to Dismiss filed by Medalla,
on the one hand, and Hon. Clave and the Civil Service Commission, on the other, holding
that Mackay's failure to await resolution of his Motions for Reconsideration pending
before the Office of the President and the Civil Service Commission did not deprive him of
a cause of action besides the fact that according to the respective Manifestations of the
said Offices, the Motions for Reconsideration had already been resolved adversely against
Mackay.
Acting on Medalla's Motion for Reconsideration thereof as well as his Motion to Lift
Restraining Order, the Court a quo, in its Order of July 15, 1980, denied reconsideration but
lifted the Restraining Order "there being no showing that petitioner is entitled to the
issuance of a Writ of Preliminary Injunction." Respondent Judge then set the case for
hearing.
At this juncture, Medalla instituted this Petition before us praying that the Court a quo be
restrained from proceeding with the hearing and that judgment be rendered as follows: prLL
"1. Ordering the Honorable Marcelino N. Sayo, Judge of the Court of

First Instance of Rizal, Branch XXXIII, Caloocan City, to dismiss
respondent Mackay's petitions, on the ground of lack of jurisdiction
and/or non-exhaustion of administrative remedies resulting to a lack
of cause of action;
"2. Declaring the decision of the Of ce of the President (Annex 'C') and
the Merit Systems Board (Annex 'E') as valid and enforceable." 4
We issued a Restraining Order on August 27, 1980 enjoining respondents from proceeding
with the case below.
On November 7, 1980, we required petitioner Medalla to implead the Mayor of Caloocan
City as party-respondent, and the latter to comment on the Petition and to state whether
he is ready to issue an appointment to Medalla as Hospital Administrator, Medalla's rights
thereto having been upheld by the Civil Service Merit Systems Board and by the Office of
the President.
In his Compliance, Medalla included an additional prayer that the City Mayor of Caloocan
be ordered to immediately appoint him as Hospital Administrator and to pay him salary
differentials.
In his Comment, the City Mayor of Caloocan invoked the privilege of an appointing
authority to determine who can best fulfill the functions of an office citing the case of
Aguilar vs. Nieva, Jr. 5 to that effect. And as to the matter of his readiness to issue an
appointment to Medalla, he manifested his preference to withhold action pending
Mackay's unresolved Motion for Reconsideration of the Decision of June 27, 1979 of the
Civil Service Merit Systems Board.
Petitioner Medalla submits that the Trial Court erred in not dismissing Mackay's Petition
before it, there being a clear showing of non-exhaustion of administrative remedies, and
that said Court was devoid of jurisdiction in reviewing on Certiorari decisions of the Office
of the President and of the Civil Service Commission rendered in the exercise of their
quasi-judicial functions.
Private respondent Mackay takes the contrary view and prays, instead, that the contested
Decisions/Resolution be declared null and void and respondent Judge ordered to proceed
with the hearing of the case below.
Although Mackay's Motions for Reconsideration were, in fact, still pending resolution by
Hon. Jacobo C. Clave and the Civil Service Commission, respectively, at the time private
respondent Mackay filed the Petition below, dismissal of said Petition can no longer be
anchored on the ground of non-exhaustion of administrative remedies, as Medalla prays,
considering that Manifestations dated August 17 and 23, 1979 filed by the said parties
before the Court a quo show that they had resolved the incidents adversely against
Mackay. 6 That issue, therefore, has become moot and academic.
In so far as jurisdiction of the Court below to review by Certiorari decisions and/or
resolutions of the Civil Service Commission and of the Presidential Executive Assistant is
concerned, there should be no question but that the power of judicial review should be
upheld. The following rulings buttress this conclusion:
"The objection to a judicial review of a Presidential act arises from a failure to
recognize the most important principle in our system of government, i.e, the
separation of powers into three co-equal departments, the executive, the
legislative and the judicial, each supreme within its own assigned powers and
duties. When a presidential act is challenged before the courts of justice, it is not
to be implied therefrom that the Executive is being made subject and subordinate
to the courts. The legality of his acts are under judicial review, not because the
Executive is inferior to the courts, but because the law is above the Chief
Executive himself, and the courts seek only to interpret, apply or implement it (the
law). A judicial review of the President's decision on a case of an employee
decided by the Civil Service Board of Appeals should be viewed in this light and
the bringing of the case to the Courts should be governed by the same principles
as govern the judicial review of all administrative acts of all administrative
officers." 7

xxx xxx xxx
"The courts may always examine into the exercise of power by a ministerial
officer to the extent of determining whether the particular power has been granted
to the officer, whether it is a legal power that could have been granted to him, and
whether it has been exercised in a legal manner. This jurisdiction does not depend
upon an act of the legislature authorizing it, but inheres in the courts of general
jurisdiction as an essential function of the judicial department. (State Racing
Commission v. Latonia Agri. Asso. 123 SW 681)." 8 (emphasis supplied)
For the speedy determination of the controversy, however, and considering that the
position involved is infused with public interest, rather than remand the case to the Court
below for further proceedings, we hold that grave abuse of discretion on the part of Hon.
Jacobo C. Clave and the Civil Service Merit Systems Board is absent.
To start with, under the Revised Charter of the City of Caloocan (RA No. 5502), it is clear
that the power of appointment by the City Mayor of heads of offices entirely paid out of
city funds is subject to Civil Service law, rules and regulations (ibid., section 19). The
Caloocan City General Hospital is one of the city departments provided for in the said law
(ibid., sec. 17). The Hospital Administrator is appointed by the City Mayor (ibid., section
66-B). The Hospital Administrator is the head of the City General Hospital empowered to
administer, direct, and coordinate all activities of the hospital to carry out its objectives as
to the care of the sick and the injured (ibid).
Under section 19 (3) of the Civil Service Decree (PD No. 807, effective on October 6, 1975),
the recruitment or selection of employees for promotions is drawn from the next-in-rank.
"SEC. 19. Recruitment and Selection of Employees. —
xxx xxx xxx

(3) When a vacancy occurs in a position in the second level of the Career
Service as defined in Section 7, the employees in the government service who
occupy the next lower positions in the occupational group under which the vacant
position is classified and in other functionally related occupational groups and
who are competent, qualified and with the appropriate civil service eligibility shall
be considered for promotion."
Section 19(6) of the same Decree provides for the administrative procedure by an
aggrieved employee in case of non-observance by the appointing authority of the next-in-
rank rule, thus:
"Sec. 19 (6) A qualified next-in-rank employee shall have the right to appeal
initially to the department head and finally to the Office of the President an
appointment made . . . (2) in favor of one who is not next-in-rank, . . . if the
employee making the appeal is not satisfied with the written special reason or
reasons given by the appointing authority for such appointment: . . . Before
deciding a contested appointment, the Office of the President shall consult the
Civil Service Commission. For purposes of this Section, 'qualified next-in-rank'
refers to an employee appointed on a permanent basis to a position previously
determined to be next-in-rank to the vacancy proposed to be filled and who meets
the requisites for appointment thereto as previously determined by the appointing
authority and approved by the Commission."
The prescribed procedure has been followed by petitioner Medalla. He had appealed to the
department head and from thence, in view of the latter's unfavorable action, to the Civil
Service Commission and thereafter to the Office of the President. Resolution No. 49 of the
Civil Service Merit Systems Board, its Decision of June 27, 1979, and the Decision of the
Presidential Executive Assistant dated April 24, 1979, were all rendered in Medalla's favor.
The special reason given by the Acting City Mayor for Mackay's appointment, which is, that
he had completed all academic requirements for the Certificate of Hospital Administration,
is not tenable, since Medalla himself was found to be in possession of the same
qualification. But while the qualifications of both petitioner Medalla and private respondent
Mackay are at par, yet, it is clear that the position of Chief of Clinics is the next lower
position to Hospital Administrator under the organizational line-up of the hospital.
Consequently, at the time of Mackay's appointment as Assistant Hospital Administrator
and subsequently Hospital Administrator, Medalla outranked Mackay who was only a
Resident Physician and, therefore, as the next-in-rank, Medalla is entitled to appointment as
Hospital Administrator.
Respondent Mackay's urging that he was denied due process deserves scant
consideration considering that subsequent developments in the case establish that he
was heard on his Motions for Reconsideration by both the Civil Service Commission and
the Office of the President.
It is true that, as respondent City Mayor alleges, a local executive should be allowed the
choice of men of his confidence, provided they are qualified and eligible, who in his best
estimation are possessed of the requisite reputation, integrity, knowledgeability, energy
and judgment. 9 However, as reproduced heretofore, the Decision of the Civil Service Merit
Systems Board, upheld by the Office of the President, contains a judicious assessment of
the qualifications of both petitioner Medalla and private respondent Mackay for the
contested position, revealing a careful study of the controversy between the parties, which
cannot be ignored. The revocation of Mackay's appointment reveals no arbitrariness nor
grave abuse of discretion. cdphil
WHEREFORE, 1) the appointment extended to private respondent, Dr. Honorato C. Mackay,

as Hospital Administrator is hereby declared null and void; 2) respondent City Mayor of
Caloocan City is hereby ordered to extend an appointment to petitioner, Dr. Eustaquio M.
Medalla, as Hospital Administrator of the Caloocan City General Hospital immediately
upon notice of this Decision; 3) petitioner, Dr. Eustaquio M. Medalla, shall receive all
compensation and emoluments appertaining to said position thenceforth, but without
entitlement to salary differentials; and 4) respondent Judge is hereby permanently
enjoined from further proceeding with Civil Case No. 7770.
This Decision is immediately executory. No costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Fernandez and Guerrero, JJ., concur.
Footnotes
1. pp. 12-13, Rollo.
2. Annex "C", p. 16, ibid.

3. p. 20, ibid.
4. p. 9, ibid.
5. 40 SCRA 113.
6. see Order, September 24, 1979, p. 41, Rollo.
7. Montes vs. Civil Service Board of Appeals, et al., 101 Phil. 490, 492-493 (1957).
8. 2 Am. Jur. 2d, Administrative Law S 566 p. 379.

9. Claudio vs. Subido, 40 SCRA 381, (1971).

FIRST DIVISION
[G.R. No. L-30637. July 16, 1987.]
LIANGA BAY LOGGING, CO., INC. , petitioner, vs. HON. MANUEL

LOPEZ ENAGE, in his capacity as Presiding Judge of Branch II of
the Court of First Instance of Agusan and AGO TIMBER
CORPORATION , respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; REVISED ADMINISTRATIVE CODE; BUREAU OF FORESTRY;

VESTED WITH THE JURISDICTION AND AUTHORITY OVER DEMARCATION OF ALL PUBLIC
FOREST AND FOREST RESERVES. — Respondent Judge erred in taking cognizance of the
complaint filed by respondent Ago, asking for the determination anew of the correct
boundary line of its licensed timber area, for the same issue had already been determined
by the Director of Forestry, the Secretary of Agriculture and Natural Resources and the
Office of the President, administrative officials under whose jurisdictions the matter
properly belongs. Section 1816 of the Revised Administrative Code vests in the Bureau of
Forestry, the jurisdiction and authority over the demarcation, protection, management,
reproduction, reforestation, occupancy, and use of all public forests and forest reserves
and over the granting of licenses for game and fish, and for the taking of forest products,
including stone and earth therefrom. The Secretary of Agriculture and Natural Resources,
as department head, may repeal or modify the decision of the Director of Forestry when
advisable in the public interests, whose decision is in turn appealable to the Office of the
President.
2. ID.; ID.; ID.; ID.; COURTS OF JUSTICE DEVOID OF JURISDICTION TO TAKE
COGNIZANCE PURELY ADMINISTRATIVE MATTERS. — In giving due course to the
complaint below, the respondent court would necessarily have to assess and evaluate
anew all the evidence presented in the administrative proceedings, which is beyond its
competence and jurisdiction. For the respondent court to consider and weigh again the
evidence already presented and passed upon by said officials would be to allow it to
substitute its judgment for that of said officials who are in a better position to consider
and weigh the same in the light of the authority specifically vested in them by law. Such a
posture cannot be entertained, for it is a well-settled doctrine that the courts of justice will
generally not interfere with purely administrative matters which are addressed to the
sound discretion of government agencies and their expertise unless there is a clear
showing that the latter acted arbitrarily or with grave abuse of discretion or when they have
acted in a capricious and whimsical manner such that their action may amount to an
excess or lack of jurisdiction.
3. REMEDIAL LAW; EVIDENCE; FINDINGS OF ADMINISTRATIVE BODIES SHALL NOT
BE DISTURBED ON APPEAL. — A doctrine long recognized is that where the law confines in
an administrative office the power to determine particular questions or matters, upon the
facts to be presented, the jurisdiction of such office shall prevail over the courts. The
general rule, under the principles of administrative law in force in this jurisdiction, is that
decisions of administrative officers shall not be disturbed by the courts, except when the
former have acted without or in excess of their jurisdiction, or with grave abuse of
discretion. Findings of administrative officials and agencies who have acquired expertise
because their jurisdiction is confined to specific matters are generally accorded not only
respect but at times even finality of such findings are supported by substantial evidence.
As recently stressed by the Court, "in this era of clogged court dockets, the need for
specialized administrative boards or commissions with the special knowledge, experience
and capability to hear and determine promptly disputes on technical matters or essentially
factual matters, subject to judicial review in case of grave abuse of discretion, has become
well nigh indispensable."
4. ID.; CIVIL PROCEDURE; DRAFT OF DECISION DOES NOT OPERATE AS A JUDGMENT
ON A CASE UNTIL THE SAME IS DULY SIGNED AND DELIVERED TO THE CLERK FOR
FILING AND PROMULGATION. — It is elementary that a draft of a decision does not
operate as judgment on a case until the same is duly signed and delivered to the clerk for
filing and promulgation. A decision cannot be considered as binding on the parties until its
promulgation. Respondent should be aware of this rule. In still another case of Ago v.
Court of Appeals, (where herein respondent Ago was the petitioner) the Court held that,
"While it is to be presumed that the judgment that was dictated in open court will be the
judgment of the court, the court may still modify said order as the same is being put into
writing. And even if the order or judgment has already been put into writing and signed,
while it has not yet been delivered to the clerk for filing, it is still subject to amendment or
change by the judge. It is only when the judgment signed by the judge is actually filed with
the clerk of court that it becomes a valid and binding judgment. Prior thereto, it could still
be subject to amendment and change and may not, therefore, constitute the real judgment
of the court."
5. ID.; EVIDENCE; BURDEN OF PROOF AND PRESUMPTION; SUSPICION AND
CONJECTURES CAN NOT OVERCOME THE PRESUMPTION OF REGULARITY AND
LEGALITY OF OFFICIAL ACTIONS. — The mere suspicion of respondent that there were
anomalies in the non-release of the Leido "decision" allegedly denying petitioner's motion
for reconsideration and the substitution thereof by the Duavit decision granting
reconsideration does not justify judicial review. Beliefs, suspicions and conjectures cannot
overcome the presumption of regularity and legality of official actions. It is presumed that
an official of a department performs his official duties regularly. It should be noted,
furthermore, that as hereinabove stated with regard to the case history in the Office of the
President, Ago's motion for reconsideration of the Duavit decision dated August 9, 1968
was denied in the Order dated October 2, 1968 and signed by Assistant Executive
Secretary Leido himself (who thereby joined in the reversal of his own first decision dated
June 16, 1966 and signed by himself).
6. ADMINISTRATIVE LAW; ORDINARY TIMBER LICENSE; OPERATES AS A CONTRACT
BETWEEN THE GOVERNMENT AND THE GRANTEE; TERMS AND STIPULATIONS
THEREOF, NOT SUBJECT TO QUESTIONING BY GRANTEE. — The Ordinary Timber License
No. 1323-'60 [New] which approved the transfer to respondent Ago of the 4,000 hectares
from the forest area originally licensed to Narciso Lansang, stipulates certain conditions,
terms and limitations, among which were: that the decision of the Director of Forestry as
to the exact location of its licensed areas is final; that the license is subject to whatever
decision that may be rendered on the boundary conflict between the Lianga Bay Logging
Co. and the Ago Timber Corporation; that the terms and conditions of the license are
subject to change at the discretion of the Director of Forestry and the license may be
made to expire at an earlier date. Under Section 1834 of the Revised Administrative Code,
the Director of Forestry, upon granting any license, may prescribe and insert therein such
terms, conditions, and limitations, not inconsistent with law, as may be deemed by him to
be in the public interest. The license operates as a contract between the government and
respondent. Respondent, therefore, is estopped from questioning the terms and
stipulation thereof.
7. ID.; PROVISIONAL REMEDIES; INJUNCTION; ISSUANCE THEREOF BY COURT OF
FIRST INSTANCE LIMITED TO ACTS COMMITTED WITHIN ITS TERRITORIAL BOUNDARIES.
— Clearly, the injunctive writ should not have been issued. The provisions of law explicitly
provide that Courts of First Instance shall have the power to issue writ of injunction,
mandamus, certiorari, prohibition, quo warranto and habeas corpus in their respective
places, if the petition filed relates to the acts or omissions of an inferior court, or of a
corporation, board, officer or person, within their jurisdiction. The jurisdiction or authority
of the Court of First Instance to control or restrain acts by means of the writ of injunction
is limited only to acts which are being committed within the territorial boundaries of their
respective provinces or districts except where the sole issue is the legality of the decision
of the administrative officials.
8. ID.; ID.; ID.; ID.; EXCEPTION. — A different rule applies only when the point in
controversy relates solely to a determination of a question of law whether the decision of
the respondent administrative officials was legally correct or not. We thus declared in
Director of Forestry v. Ruiz: "In Palanan Lumber & Plywood Co., Inc., supra, we reaffirmed
the rule of non-jurisdiction of courts of first instance to issue injunctive writs in order to
control acts outside of their premises or districts. We went further and said that when the
petition filed with the courts of first instance not only questions the legal correctness of
the decision of administrative officials but also seeks to enjoin the enforcement of the
said decision, the court could not validly issue the writ of injunction when the officials
sought to be restrained from enforcing the decision are not stationed within its territory.
9. ID.; ID.; ID.; WRIT IN EXCESS OF JURISDICTION, VOID. — The writ of preliminary
injunction issued by respondent court is furthermore void, since it appears that the forest
area described in the injunctive writ includes areas not licensed to respondent Ago. The
forest area referred to and described therein comprises the whole area originally licensed
to Narciso Lansang under the earlier Ordinary Timber License No. 584-52. Only a portion of
this area was in fact transferred to respondent Ago as described in its Ordinary Timber
License No. 1323-'60(New).
10. ID.; SPECIAL CIVIL ACTION; CERTIORARI; GRAVE ABUSE OF DISCRETION;
REFUSAL TO DISMISS A CASE ON APPARENT LACK OF JURISDICTION AND ISSUING WRIT
OF INJUNCTION. — It is abundantly clear that respondent court has no jurisdiction over the
subject matter of Civil Case No. 1253 of the Court of First Instance of Agusan nor has it
jurisdiction to decide on the common boundary of the licensed areas of petitioner Lianga
and respondent Ago, as determined by respondents public officials against whom no case
of grave abuse of discretion has been made. Absent a cause of action and jurisdiction,
respondent Judge acted with grave abuse of discretion and excess, if not lack, of
jurisdiction in refusing to dismiss the case under review and in issuing the writ of
preliminary injunction enjoining the enforcement of the final decision dated August 9, 1968
and the order affirming the same dated October 2, 1968 of the Office of the President.
DECISION

TEEHANKEE , C.J : p
The Court grants the petition for certiorari and prohibition and holds that respondent
judge, absent any showing of grave abuse of discretion, has no competence nor authority
to review anew the decision in administrative proceedings of respondents public officials
(director of forestry, secretary of agriculture and natural resources and assistant executive
secretaries of the Office of the President) in determining the correct boundary line of the
licensed timber areas of the contending parties. The Court reaffirms the established
principle that findings of fact by an administrative board or agency or official, following a
hearing, are binding upon the courts and will not be disturbed except where the board,
agency and/or official(s) have gone beyond their statutory authority, exercised
unconstitutional powers or clearly acted arbitrarily and without regard to their duty or with
grave abuse of discretion.
The parties herein are both forest concessionaries whose licensed areas are adjacent to
each other. The concession of petitioner Lianga Bay Logging Corporation Co., Inc.
(hereinafter referred to as petitioner Lianga) as described in its Timber License Agreement
No. 49, is located in the municipalities of Tago, Cagwait, Marihatag and Lianga, all in the
Province of Surigao, consisting of 110,406 hectares, more or less, while that of respondent
Ago Timber Corporation (hereinafter referred to as respondent Ago) granted under
Ordinary Timber License No. 1323-60 [New] is located at Los Arcos and San Salvador,
Province of Agusan, with an approximate area of 4,000 hectares. It was a part of a forest
area of 9,000 hectares originally licensed to one Narciso Lansang under Ordinary Timber
License No. 584-'52.
Since the concessions of petitioner and respondent are adjacent to each other, they have a
common boundary — the Agusan-Surigao Provincial boundary — whereby the eastern
boundary of respondent Ago's concession is petitioner Lianga's western boundary. The
western boundary of petitioner Lianga is described as ". . . Corner 5, a point in the
intersection of the Agusan-Surigao Provincial boundary and Los Arcos-Lianga Road;
thence following Agusan-Surigao Provincial boundary in a general northerly and
northwesterly and northerly directions about 39,500 meters to Corner 6, a point at the
intersection of the Agusan-Surigao Provincial boundary and Nalagdao Creek . . ." The
eastern boundary of respondent Ago's concession is described as ". . . point 4, along the
Agusan-Surigao boundary; thence following Agusan-Surigao boundary in a general
southeasterly and southerly directions about 12,000 meters to point 5, a point along Los
Arcos-Lianga Road; . . ." 1
Because of reports of encroachment by both parties on each other's concession areas, the
Director of Forestry ordered a survey to establish on the ground the common boundary of
their respective concession areas. Forester Cipriano Melchor undertook the survey and
fixed the common boundary as "Corner 5 of Lianga Bay Logging Company at Km. 10.2
instead of Km. 9.7 on the Lianga-Arcos Road and lines N90ºE, 21,000 meters; N12ºW,
21,150 meters; N40ºW, 3,000 meters; N31ºW, 2,800 meters; N50ºW, 1,700 meters" which
respondent Ago protested claiming that "its eastern boundary should be the provincial
boundary line of Agusan-Surigao as described in Section 1 of Art. 1693 of the Philippine
Commission as indicated in the green pencil in the attached sketch" of the areas as
prepared by the Bureau of Forestry. 2 The Director of Forestry, after considering the
evidence, found: LibLex
"That the claim of the Ago Timber Corporation portrays a line (green line) far
different in alignment with the line (red) as indicated in the original License
Control Map of this Office;
"That the claim of the Ago Timber Corporation (green line) does not conform to
the distance of 6,800 meters from point 3 to point 4 of the original description of
the area of Narciso Lansang but would project said line to a distance of
approximately 13,800 meters;
"That to follow the claim of the Ago Timber Corporation would increase the area
of Narciso Lansang from 9,000 to 12,360 hectares;
"That to follow the claim of the Ago Timber Corporation would reduce the area of
the Lianga Bay Logging, Co., Inc. to 107,046 hectares instead of the area granted
which is 110,406 hectares."
and ruled that "the claim of the Ago Timber Corporation runs counter to the intentions
of this Of ce is granting the license of Mr. Narciso Lansang; and further, that it also
runs counter to the intentions of this Of ce in granting the Timber License Agreement
to the Lianga Bay Logging Co., Inc. The intentions of this Of ce in granting the two
licenses (Lansang and Lianga Bay Logging Co., Inc.) are patently manifest in that
distances and bearings are the controlling factors. If mention was ever made of the
Agusan-Surigao boundary, as the common boundary line of both licenses, this Of ce
could not have meant the Agusan-Surigao boundary as described under Section 1 of
Act 1693 of the Philippine Commission for were it so it could have been so easy for this
Of ce to mention the distance from point 3 to point 4 of Narciso Lansang as
approximately 13,800 meters. This cannot be considered a mistake considering that
the percentage of error which is more or less 103% is too high an error to be
committed by an Of ce manned by competent technical men. The Agusan-Surigao
boundary as mentioned in the technical descriptions of both licensees. is, therefore,
patently an imaginary line based on B.F. License Control Map. Such being the case, it is
reiterated that distance and bearings control the description where an imaginary line
exists. 3 The decision xed the common boundary of the licensed areas of the Ago
Timber Corporation and Lianga Bay Logging Co., Inc. as that indicated in red pencil of
the sketch attached to the decision.
In an appeal interposed by respondent Ago, docketed in the Department of Agriculture and
Natural Resources as DANR Case No. 2268, the then Acting Secretary of Agriculture and
Natural Resources Jose Y. Feliciano, in a decision dated August 9, 1965 set aside the
appealed decision of the Director of Forestry and ruled that "(T)he common boundary line
of the licensed areas of the Ago Timber Corporation and the Lianga Bay Logging Co., Inc.,
should be that indicated by the green line on the same sketch which had been made an
integral part of the appealed decision." 4
Petitioner elevated the case to the Office of the President, where in a decision dated June
16, 1966, signed by then Assistant Executive Secretary Jose J. Leido, Jr., the ruling of the
then Secretary of Agriculture and Natural Resources was affirmed. 5 On motion for
reconsideration, the Office of the President issued another decision dated August 9, 1968
signed by then Assistant Executive Secretary Gilberto Duavit reversing and overturning the
decision of the then Acting Secretary of Agriculture and Natural Resources and affirming in
toto and reinstating the decision, dated March 20, 1961, of the Director of Forestry. 6
Respondent Ago filed a motion for reconsideration of the decision dated August 9, 1968
of the Office of the President but after written opposition of petitioner Lianga, the same
was denied in an order dated October 2, 1968, signed by then Assistant Executive
Secretary Jose J. Leido, Jr. 7
On October 21, 1968, a new action was commenced by Ago Timber Corporation, as
plaintiff, in the Court of First Instance of Agusan, Branch II, docketed thereat as Civil Case
No. 1253, against Lianga Bay Logging Co., Inc., Assistant Executive Secretaries Jose J.
Leido, Jr. and Gilberto M. Duavit and Director of Forestry, as defendants, for "Determination
of Correct Boundary Line of License Timber Areas and Damages with Preliminary
Injunction" reiterating once more the same question raised and passed upon in DANR Case
No. 2268 and insisting that "a judicial review of such divergent administrative decisions is
necessary in order to determine the correct boundary line of the licensed areas in
question." 8
As prayed for, respondent judge issued a temporary restraining order on October 28,
1968, on a bond of P20,000, enjoining the defendants from carrying out the decision of the
Office of the President. The corresponding writ was issued the next day, or on October 29,
1968. 9
On November 10, 1968, defendant Lianga (herein petitioner) moved for dismissal of the
complaint and for dissolution of the temporary restraining order on grounds that the
complaint states no cause of action and that the court has no jurisdiction over the person
of respondent public officials and respondent corporation. It also submitted its opposition
to plaintiff's (herein respondent prayer for the issuance of a writ of preliminary injunction.
1 0 A supplemental motion was filed on December 6, 1968. 1 1
On December 19, 1968, the lower court issued an order denying petitioner Lianga's motion
to dismiss and granting the writ of preliminary injunction prayed for by respondent Ago. 1 2
Lianga's Motion for Reconsideration of the Order was denied on May 9, 1969. 1 3 Hence,
this petition praying of the Court (a) to declare that the Director of Forestry has the
exclusive jurisdiction to determine the common boundary of the licensed areas of
petitioners and respondents and that the decision of the Office of the President dated
August 9, 1968 is final and executory; (b) to order the dismissal of Civil Case No. 1253 in
the Court of First Instance of Agusan; (c) to declare that respondent Judge acted without
jurisdiction or in excess of jurisdiction and with grave abuse of discretion, amounting to
lack of jurisdiction, in issuing the temporary restraining order dated October 28, 1968 and
granting the preliminary injunction per its Order dated December 19, 1968; and (d) to annul
the aforementioned orders.
After respondent's comments on the petition and petitioner's reply thereto, this Court on
June 30, 1969 issued a restraining order enjoining in turn the enforcement of the
preliminary injunction and related orders issued by the respondent court in Civil Case No.
1253. 1 4
The Court finds merit in the petition. prcd
Respondent Judge erred in taking cognizance of the complaint filed by respondent Ago,
asking for the determination anew of the correct boundary line of its licensed timber area,
for the same issue had already been determined by the Director of Forestry, the Secretary
of Agriculture and Natural Resources and the Office of the President, administrative
officials under whose jurisdictions the matter properly belongs. Section 1816 of the
Revised Administrative Code vests in the Bureau of Forestry, the jurisdiction and authority
over the demarcation, protection, management, reproduction, reforestation, occupancy,
and use of all public forests and forest reserves and over the granting of licenses for game
and fish, and for the taking of forest products, including stone and earth therefrom. The
Secretary of Agriculture and Natural Resources, as department head, may repeal or modify
the decision of the Director of Forestry when advisable in the public interests, 1 5 whose
decision is in turn appealable to the Office of the President. 1 6
In giving due course to the complaint below, the respondent court would necessarily have
to assess and evaluate anew all the evidence presented in the administrative proceedings,
1 7 which is beyond its competence and jurisdiction. For the respondent court to consider
and weigh again the evidence already presented and passed upon by said officials would
be to allow it to substitute its judgment for that of said officials who are in a better
position to consider and weigh the same in the light of the authority specifically vested in
them by law. Such a posture cannot be entertained, for it is a well-settled doctrine that the
courts of justice will generally not interfere with purely administrative matters which are
addressed to the sound discretion of government agencies and their expertise unless
there is a clear showing that the latter acted arbitrarily or with grave abuse of discretion or
when they have acted in a capricious and whimsical manner such that their action may
amount to an excess or lack of jurisdiction. 1 8
A doctrine long recognized is that where the law confines in an administrative office the
power to determine particular questions or matters, upon the facts to be presented, the
jurisdiction of such office shall prevail over the courts. 1 9
The general rule, under the principles of administrative law in force in this jurisdiction, is
that decisions of administrative officers shall not be disturbed by the courts, except when
the former have acted without or in excess of their jurisdiction, or with grave abuse of
discretion. Findings of administrative officials and agencies who have acquired expertise
because their jurisdiction is confined to specific matters are generally accorded not only
respect but at times even finality of such findings are supported by substantial evidence.
2 0 As recently stressed by the Court, "in this era of clogged court dockets, the need for
specialized administrative boards or commissions with the special knowledge, experience
and capability to hear and determine promptly disputes on technical matters or essentially
factual matters, subject to judicial review in case of grave abuse of discretion, has become
well nigh indispensable." 2 1
The facts and circumstances in the instant case are similar to the earlier case of Pajo, et al.
v. Ago, et al. 2 2 (where therein respondent Pastor Ago is the president of herein
respondent Ago Timber Corporation). In the said case, therein respondent Pastor Ago,
after an adverse decision of the Director of Forestry, Secretary of Agriculture and Natural
Resources and Executive Secretary in connection with his application for renewal of his
expired timber licenses, filed with the Court of First instance of Agusan a petition for
certiorari, prohibition and damages with preliminary injunction alleging that the rejection of
his application for renewal by the Director of Forestry and Secretary of Agriculture and
Natural Resources and its affirmance by the Executive Secretary constituted an abuse of
discretion and was therefore illegal. The Court held that "there can be no question that
petitioner Director of Forestry has jurisdiction over the grant or renewal of respondent
Ago's timber license (Sec. 1816, Rev. Adm. Code); that petitioner Secretary of Agriculture
and Natural Resources as department head, is empowered by law to affirm, modify or
reject said grant or renewal of respondent Ago's timber license by petitioner Director of
Forestry (Sec. 79[c], Rev. Adm. Code); and that petitioner Executive Secretary, acting for
and in behalf and by authority of the President has, likewise, jurisdiction to affirm, modify
or reverse the orders regarding the grant or renewal of said timber license by the two
aforementioned officials." The Court went on to say that, "(I)n the case of Espinosa, et al. v.
Makalintal, et al. (79 Phil. 134; 45 Off. Gaz. 712), we held that the powers granted to the
Secretary of Agriculture and Commerce (Natural Resources) by law regarding the
disposition of public lands such as granting of licenses, permits, leases, and contracts or
approving, rejecting, reinstating, or cancelling applications or deciding conflicting
applications, are all executive and administrative in nature. It is a well-recognized principle
that purely administrative and discretionary functions may not be interfered with by the
courts. In general, courts have no supervising power over the proceedings and actions of
the administrative departments of the government. This is generally true with respect to
acts involving the exercise of judgment or discretion, and findings of act. Findings of fact
by an administrative board, agency or official, following a hearing, are binding upon the
courts and will not be disturbed except where the board, agency or official has gone
beyond his statutory authority, exercised unconstitutional powers or clearly acted
arbitrarily and without regard to his duty or with grave abuse of discretion. And we have
repeatedly held that there is grave abuse of discretion justifying the issuance of the writ of
certiorari only when there is capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. (Abad Santos v. Province of Tarlac, 67 Phil. 480; Tan vs.
People, 88 Phil. 609)"
Respondent Ago contends that the motion led by petitioner Lianga for
reconsideration of the decision of the Of ce of the President was denied in an alleged
"decision" dated August 15, 1966, allegedly signed by then Assistant Executive
Secretary Jose J. Leido, Jr. that, "however, for some mysterious, unknown if not
anomalous reasons and/or illegal considerations, the `decision' allegedly dated August
15, 1966 (Annex "D") was never released" and instead a decision was released on
August 9, 1968, signed by then Assistant Executive Secretary Gilberto M. Duavit, which
reversed the ndings and conclusions of the Of ce of the President in its rst decision
dated June 16, 1966 and signed by then Assistant Executive Secretary Leido. llcd
It is elementary that a draft of a decision does not operate as judgment on a case until the
same is duly signed and delivered to the clerk for filing and promulgation. A decision
cannot be considered as binding on the parties until its promulgation. 2 3 Respondent
should be aware of this rule. In still another case of Ago v. Court of Appeals, 2 4 (where
herein respondent Ago was the petitioner) the Court held that, "While it is to be presumed
that the judgment that was dictated in open court will be the judgment of the court, the
court may still modify said order as the same is being put into writing. And even if the
order or judgment has already been put into writing and signed, while it has not yet been
delivered to the clerk for filing, it is still subject to amendment or change by the judge. It is
only when the judgment signed by the judge is actually filed with the clerk of court that it
becomes a valid and binding judgment. Prior thereto, it could still be subject to
amendment and change and may not, therefore, constitute the real judgment of the court."
Respondent alleges "that in view of the hopelessly conflicting decisions of the
administrative bodies and/or offices of the Philippine government, and the important
questions of law and fact involved therein, as well as the well-grounded fear and suspicion
that some anomalous, illicit and unlawful considerations had intervened in the
concealment of the decision of August 15, 1966 (Annex "D") of Assistant Executive
Secretary Gilberto M. Duavit, a judicial review of such divergent administrative decisions is
necessary in order to determine the correct boundary line of the licensed areas in question
and restore the faith and confidence of the people in the actuations of our public officials
and in our system of administration of justice."
The mere suspicion of respondent that there were anomalies in the non-release of the
Leido "decision" allegedly denying petitioner's motion for reconsideration and the
substitution thereof by the Duavit decision granting reconsideration does not justify
judicial review. Beliefs, suspicions and conjectures cannot overcome the presumption of
regularity and legality of official actions. 2 5 It is presumed that an official of a department
performs his official duties regularly. 2 6 It should be noted, furthermore, that as
hereinabove stated with regard to the case history in the Office of the President, Ago's
motion for reconsideration of the Duavit decision dated August 9, 1968 was denied in the
Order dated October 2, 1968 and signed by Assistant Executive Secretary Leido himself
(who thereby joined in the reversal of his own first decision dated June 16, 1966 and
signed by himself).
The Ordinary Timber License No. 1323-'60 [New] which approved the transfer to
respondent Ago of the 4,000 hectares from the forest area originally licensed to Narciso
Lansang, stipulates certain conditions, terms and limitations, among which were: that the
decision of the Director of Forestry as to the exact location of its licensed areas is final;
that the license is subject to whatever decision that may be rendered on the boundary
conflict between the Lianga Bay Logging Co. and the Ago Timber Corporation; that the
terms and conditions of the license are subject to change at the discretion of the Director
of Forestry and the license may be made to expire at an earlier date. Under Section 1834 of
the Revised Administrative Code, the Director of Forestry, upon granting any license, may
prescribe and insert therein such terms, conditions, and limitations, not inconsistent with
law, as may be deemed by him to be in the public interest. The license operates as a
contract between the government and respondent. Respondent, therefore, is estopped
from questioning the terms and stipulation thereof.
Clearly, the injunctive writ should not have been issued. The provisions of law explicitly
provide that Courts of First Instance shall have the power to issue writ of injunction,
mandamus, certiorari, prohibition, quo warranto and habeas corpus in their respective
places, 2 7 if the petition filed relates to the acts or omissions of an inferior court, or of a
corporation, board, officer or person, within their jurisdiction. 2 8
The jurisdiction or authority of the Court of First Instance to control or restrain acts by
means of the writ of injunction is limited only to acts which are being committed within the
territorial boundaries of their respective provinces or districts 2 9 except where the sole
issue is the legality of the decision of the administrative officials. 3 0
In the leading case of Palanan Lumber Plywood Co., Inc. v. Arranz, 3 1 which involved a
petition for certiorari and prohibition filed in the Court of First Instance of Isabela against
the same respondent public officials as here and where the administrative proceedings
taken were similar to the case at bar, the Court laid down the rule that: "We agree with the
petitioner that the respondent Court acted without jurisdiction in issuing a preliminary
injunction against the petitioners Executive Secretary, Secretary of Agriculture and Natural
Resources and the Director of Forestry, who have their official residences in Manila and
Quezon City, outside of the territorial jurisdiction of the respondent Court of First Instance
of Isabela. Both the statutory provisions and the settled jurisdiction of this Court
unanimously affirm that the extraordinary writs issued by the Court of First Instance are
limited to and operative only within their respective provinces and districts."
A different rule applies only when the point in controversy relates solely to a determination
of a question of law whether the decision of the respondent administrative officials was
legally correct or not. 3 2 We thus declared in Director of Forestry v. Ruiz: 3 3 "In Palanan
Lumber & Plywood Co., Inc., supra, we reaffirmed the rule of non-jurisdiction of courts of
first instance to issue injunctive writs in order to control acts outside of their premises or
districts. We went further and said that when the petition filed with the courts of first
instance not only questions the legal correctness of the decision of administrative officials
but also seeks to enjoin the enforcement of the said decision, the court could not validly
issue the writ of injunction when the officials sought to be restrained from enforcing the
decision are not stationed within its territory. LLphil
"To recapitulate, insofar as injunctive or prohibitory writs are concerned, the rule still
stands that courts of first instance have the power to issue writs limited to and operative
only within their respective provinces or districts."
The writ of preliminary injunction issued by respondent court is furthermore void, since it
appears that the forest area described in the injunctive writ includes areas not licensed to
respondent Ago. The forest area referred to and described therein comprises the whole
area originally licensed to Narciso Lansang under the earlier Ordinary Timber License No.
584-52. Only a portion of this area was in fact transferred to respondent Ago as described
in its Ordinary Timber License No. 1323-'60[New].
It is abundantly clear that respondent court has no jurisdiction over the subject matter of
Civil Case No. 1253 of the Court of First Instance of Agusan nor has it jurisdiction to
decide on the common boundary of the licensed areas of petitioner Lianga and respondent
Ago, as determined by respondents public officials against whom no case of grave abuse
of discretion has been made. Absent a cause of action and jurisdiction, respondent Judge
acted with grave abuse of discretion and excess, if not lack, of jurisdiction in refusing to
dismiss the case under review and in issuing the writ of preliminary injunction enjoining the
enforcement of the final decision dated August 9, 1968 and the order affirming the same
dated October 2, 1968 of the Office of the President.
ACCORDINGLY, the petition for certiorari and prohibition is granted. The restraining order
heretofore issued by the Court against enforcement of the preliminary injunction and
related orders issued by respondent judge is the case below is made permanent and the
respondent judge or whoever has taken his place is hereby ordered to dismiss Civil Case
No. 1253.
SO ORDERED.
Narvasa, Cruz, Paras and Gancayco, JJ., concur.
Footnotes
1. Decision of the Director of Forestry, dated March 20, 1961, p. 108, Rollo.
2. P. 109, Rollo.
3. P. 109, Rollo, emphasis supplied.
4. P. 148, Rollo.
5. Pp. 149-154, Rollo.

6. Pp. 157-167, Rollo.
7. P. 168. Rollo.
8. Pp. 124-138, Rollo.
9. Pp. 171-177, Rollo.

10. Pp. 178-212, Rollo.
11. Pp. 238-256.
12. Pp. 332-339, Rollo.
13. P. 381, Rollo.
14. P. 382, Rollo.
15. Sec. 79(c), Rev. Adm. Code.

16. Executive Order No. 19, dated April 2, 1966.
17. Ganitano v. Secretary of Agriculture and Natural Resources, 16 SCRA 534.
18. Ibid.
19. R.B. Industrial Development Co. Ltd. vs. Enage, 24 SCRA 365.
20. Comm. of Customs v. Valencia, 100 Phil. 165. See also Special Events and Central
Shipping Office Workers Union v. San Miguel Corporation, 122 SCRA 557 citing
International Hardwood and Veneer Co., of the Philippines v. Hon. Vicente Leogardo, et
al., 117 SCRA 967; Genconsu Free Workers Union vs. Inciong, 91 SCRA 311; Dy Keh Beng
v. International Labor and Marine Union of the Phil., 90 SCRA 162.
21. Abejo vs. De la Cruz, G.R. No. 63558, May 19, 1987.
22. 108 Phil. 905 (1960).

23. Vda. de Potenciano v. Gruenberg, 4 SCRA 127.
24. 6 SCRA 530 (1962); see also People v. Soria, 22 SCRA 948; Comia v. Nicolas, 29 SCRA
492.
25. Tolentino vs. Catoy, 82 Phil. 300.
26. Quien v. Serina, 17 SCRA 567; Phil. International Surety Co., Inc. v. Court of Tax
Appeals, 19 SCRA 617; People v. Pineda, 20 SCRA 748; People v. Cortes, 20 SCRA 1228.
27. Section 44(h) of the Judiciary Act of 1948.
28. Section 4, Rule 65, Rules of Court.

29. Director of Forestry v. King, 38 SCRA 559.
30. Gayacao v. Hon. Executive Secretary, et al., 13 SCRA 763; Zamboanga General Utilities
Inc. v. Secretary of Agriculture and Natural Resources, 20 SCRA 881; Macailing v.
Andrada, 31 SCRA 126.
31. 22 SCRA 1186.
32. Gayacao v. Hon. Executive Secretary, et al., 13 SCRA 753; Zamboanga General Utilities
Inc. vs. Secretary of Agriculture and Natural Resources, 20 SCRA 881; Macailing, et al. vs.
Andrada, et al., 31 SCRA 126.
33. 38 SCRA 559.

EN BANC
[G.R. No. L-75697. June 18, 1987.]
VALENTIN TIO doing business under the name and style of OMI
ENTERPRISES , petitioner, vs. VIDEOGRAM REGULATORY BOARD,
MINISTER OF FINANCE, METRO MANILA COMMISSION, CITY
MAYOR and CITY TREASURER OF MANILA , respondents.
Nelson Y . Ng for petitioner.

The City Legal Officer for respondents City Mayor and City Treasurer.
DECISION
MELENCIO-HERRERA , J : p
This petition was filed on September 1, 1986 by petitioner on his own behalf and
purportedly on behalf of other videogram operators adversely affected. It assails the
constitutionality of Presidential Decree No. 1987 entitled "An Act Creating the Videogram
Regulatory Board" with broad powers to regulate and supervise the videogram industry
(hereinafter briefly referred to as the BOARD). The Decree was promulgated on October 5,
1985 and took effect on April 10, 1986, fifteen (15) days after completion of its
publication in the Official Gazette. LibLex
On November 5, 1985, a month after the promulgation of the abovementioned decree,

Presidential Decree No. 1994 amended the National Internal Revenue Code providing, inter
alia:
"SEC. 134. Video Tapes. — There shall be collected on each processed video-
tape cassette, ready for playback, regardless of length, an annual tax of five
pesos; Provided, That locally manufactured or imported blank video tapes shall
be subject to sales tax."
On October 23, 1986, the Greater Manila Theaters Association, Integrated Movie
Producers, Importers and Distributors Association of the Philippines, and Philippine
Motion Pictures Producers Association, hereinafter collectively referred to as the
Intervenors, were permitted by the Court to intervene in the case, over petitioner's
opposition, upon the allegations that intervention was necessary for the complete
protection of their rights and that their "survival and very existence is threatened by the
unregulated proliferation of film piracy." The Intervenors were thereafter allowed to file
their Comment in Intervention.
The rationale behind the enactment of the DECREE, is set out in its preambular clauses as
follows:
"1. WHEREAS, the proliferation and unregulated circulation of videograms
including, among others, videotapes, discs, cassettes or any technical
improvement or variation thereof, have greatly prejudiced the operations of
moviehouses and theaters, and have caused a sharp decline in theatrical
attendance by at least forty percent (40%) and a tremendous drop in the
collection of sales, contractor's specific, amusement and other taxes, thereby
resulting in substantial losses estimated at P450 Million annually in government
revenues;
"2. WHEREAS, videogram(s) establishments collectively earn around P600

Million per annum from rentals, sales and disposition of videograms, and such
earnings have not been subjected to tax, thereby depriving the Government of
approximately P180 Million in taxes each year;
"3. WHEREAS, the unregulated activities of videogram establishments have

also affected the viability of the movie industry, particularly the more than 1,200
movie houses and theaters throughout the country, and occasioned industry-wide
displacement and unemployment due to the shutdown of numerous moviehouses
and theaters;
"4. WHEREAS, in order to ensure national economic recovery, it is imperative

for the Government to create an environment conducive to growth and
development of all business industries, including the movie industry which has an
accumulated investment of about P3 Billion.
"5. WHEREAS, proper taxation of the activities of videogram establishments
will not only alleviate the dire financial condition of the movie industry upon
which more than 75,000 families and 500,00 workers depend for their livelihood,
but also provide an additional source of revenue for the Government, and at the
same time rationalize the heretofore distribution of videograms;
"6. WHEREAS, the rampant and unregulated showing of obscene videogram

features constitutes a clear and present danger to the moral and spiritual well-
being of the youth, and impairs the mandate of the Constitution for the State to
support the rearing of the youth for civic efficiency and the development of moral
character and promote their physical, intellectual, and social being;
"7. WHEREAS, civic-minded citizens and groups have called for remedial
measures to curb these blatant malpractice's which have flaunted our censorship
and copyright law;
"8. WHEREAS, in the face of these grave emergencies corroding the moral
values of the people and betraying the national economic recovery program, bold
emergency measures must be adopted with dispatch; . . ." (Numbering of
paragraphs supplied).
Petitioner's attack on the constitutionality of the DECREE rests on the following grounds:
"1. Section 10 thereof, which imposes a tax of 30% on the gross receipts
payable to the local government is a RIDER and the same is not germane to the
subject matter thereof;
"2. The tax imposed is harsh, confiscatory, oppressive and/or in unlawful

restraint of trade in violation of the due process clause of the Constitution;
"3. There is no factual nor legal basis for the exercise by the President of the
vast powers conferred upon him by Amendment No. 6;
"4. There is undue delegation of power and authority;
"5. The Decree is an ex-post facto law; and

"6. There is over regulation of the video industry as if it were a nuisance,
which it is not."
We shall consider the foregoing objections in seriatim.

1. The Constitutional requirement that "every bill shall embrace only one subject which
shall be expressed in the title thereof" 1 is sufficiently complied with if the title be
comprehensive enough to include the general purpose which a statute seeks to achieve. It
is not necessary that the title express each and every end that the statute wishes to
accomplish. The requirement is satisfied if all the parts of the statute are related, and are
germane to the subject matter expressed in the title, or as long as they are not
inconsistent with or foreign to the general subject and title. 5
Tested by the foregoing criteria, petitioner's contention that the tax provision of the
DECREE is a rider is without merit. That section reads, inter alia:
"Section 10. Tax on Sale, Lease or Disposition of Videograms. —
Notwithstanding any provision of law to the contrary, the province shall collect a
tax of thirty percent (30%) of the purchase price or rental rate, as the case may be,
for every sale, lease or disposition of a videogram containing a reproduction of
any motion picture or audiovisual program. Fifty percent (50%) of the proceeds of
the tax collected shall accrue to the province, and the other fifty percent (50%)
shall accrue to the municipality where the tax is collected; PROVIDED, That in
Metropolitan Manila, the tax shall be shared equally by the City/Municipality and
the Metropolitan Manila Commission.
xxx xxx xxx
The foregoing provision is allied and germane to, and is reasonably necessary for the
accomplishment of, the general object of the DECREE, which is the regulation of the video
industry through the Videogram Regulatory Board as expressed in its title. The tax
provision is not inconsistent with, nor foreign to that general subject and title. As a tool for
regulation 6 it is simply one of the regulatory and control mechanisms scattered
throughout the DECREE. The express purpose of the DECREE to include taxation of the
video industry in order to regulate and rationalize the heretofore uncontrolled distribution
of videograms is evident from Preambles 2 and 5, supra. Those preambles explain the
motives of the lawmaker in presenting the measure. The title of the DECREE, which is the
creation of the Videogram Regulatory Board, is comprehensive enough to include the
purposes expressed in its Preamble and reasonably covers all its provisions. It is
unnecessary to express all those objectives in the title or that the latter be an index to the
body of the DECREE. 7
2. Petitioner also submits that the thirty percent (30%) tax imposed is harsh and
oppressive, confiscatory, and in restraint of trade. However, it is beyond serious question
that a tax does not cease to be valid merely because it regulates, discourages, or even
definitely deters the activities taxed. 8 The power to impose taxes is one so unlimited in
force and so searching in extent, that the courts scarcely venture to declare that it is
subject to any restrictions whatever, except such as rest in the discretion of the authority
which exercises it. 1 0
The tax imposed by the DECREE is not only a regulatory but also a revenue measure
prompted by the realization that earnings of videogram establishments of around P600
million per annum have not been subjected to tax, thereby depriving the Government of an
additional source of revenue. It is an end-user tax, imposed on retailers for every
videogram they make available for public viewing. It is similar to the 30% amusement tax
imposed or borne by the movie industry which the theater-owners pay to the government,
but which is passed on to the entire cost of the admission ticket, thus shifting the tax
burden on the buying or the viewing public. It is a tax that is imposed uniformly on all
videogram operators. LexLib
The levy of the 30% tax is for a public purpose. It was imposed primarily to answer the
need for regulating the video industry, particularly because of the rampant film piracy, the
flagrant violation of intellectual property rights, and the proliferation of pornographic video
tapes. And while it was also an objective of the DECREE to protect the movie industry, the
tax remains a valid imposition.
"The public purpose of a tax may legally exist even if the motive which impelled
the legislature to impose the tax was to favor one industry over another. 1 1
"It is inherent in the power to tax that a state be free to select the subjects of
taxation, and it has been repeatedly held that "inequities which result from a
singling out of one particular class for taxation or exemption infringe no
constitutional limitation'." 12 Taxation has been made the implement of the
state's police power. 1 3
At bottom, the rate of tax is a matter better addressed to the taxing legislature.
3. Petitioner argues that there was no legal nor factual basis for the promulgation of
the DECREE by the former President under Amendment No. 6 of the 1973 Constitution
providing that "whenever in the judgment of the President . . ., there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa
or the regular National Assembly fails or is unable to act adequately on any matter for any
reason that in his judgment requires immediate action, he may, in order to meet the
exigency, issue the necessary decrees, orders, or letters of instructions, which sharp form
part of the law of the land."
In refutation, the Intervenors and the Solicitor General's Office aver that the 8th "whereas"
clause sufficiently summarizes the justification in that grave emergencies corroding the
moral values of the people and betraying the national economic recovery problem
necessitated bold emergency measures to be adopted with dispatch. Whatever the
reasons "in the judgment" of the then President, considering that the issue of the validity of
the exercise of legislative power under the said Amendment still pends resolution in
several other cases, we reserve resolution of the question raised at the proper time.
4. Neither can it be successfully argued that the DECREE contains an undue delegation
of legislative power. The grant in Section 11 of the DECREE of authority to the BOARD to
"solicit the direct assistance of other agencies and units of the government and deputize,
for a fixed and limited period, the heads or personnel of such agencies and units to
perform enforcement functions for the Board" is not a delegation of the power to legislate
but merely a conferment of authority or discretion as to its execution, enforcement, and
implementation. "The true distinction is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring 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." 14 Besides, in the very
language of the decree, the authority of the BOARD to solicit such assistance is for a "fixed
and limited period" with the deputized agencies concerned being "subject to the direction
and control of the BOARD." That the grant of such authority might be the source of graft
and corruption would not stigmatize the DECREE as unconstitutional. Should the
eventuality occur, the aggrieved parties will not be without adequate remedy in law.
5. The DECREE is not violative of the ex post facto principle. An ex post facto law is,
among other categories, one which "alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law required at the time of the
commission of the offense." It is petitioner's position that Section 15 of the DECREE in
providing that:
"All videogram establishments in the Philippines are hereby given a period of
forty-five (45) days after the effectivity of this Decree within which to register with
and secure a permit from the BOARD to engage in the videogram business and to
register with the BOARD all their inventories of videograms, including videotapes,
discs, cassettes or other technical improvements or variations thereof, before they
could be sold, leased, or otherwise disposed of. Thereafter any videogram found
in the possession of any person engaged in the videogram business without the
required proof of registration by the BOARD, shall be prima facie evidence of
violation of the Decree, whether the possession of such videogram be for private
showing and/or public exhibition."
raises immediately a prima facie evidence of violation of the DECREE when the required
proof of registration of any videogram cannot be presented and thus partakes of the
nature of an ex post facto law.
The argument is untenable. As this Court held in the recent case of Vallarta vs. Court of
Appeals, et al. 1 5
". . . it is now well settled that 'there is no constitutional objection to the passage
of a law providing that the presumption of innocence may be overcome by a
contrary presumption founded upon the experience of human conduct, and
enacting what evidence shall be sufficient to overcome such presumption of
innocence' (People vs. Mingoa, 92 Phil. 856 [1953] at 858-59, citing 1 COOLEY, A
TREATISE ON THE CONSTITUTIONAL LIMITATIONS, 639-641). And the
'legislature may enact that when certain facts have been proved that they shall be
prima facie evidence of the existence of the guilt of the accused and shift the
burden of proof provided there be a rational connection between the facts proved
and the ultimate facts presumed so that the inference of the one from proof of
the others is not unreasonable and arbitrary because of lack of connection
between the two in common experience'." 1 6
Applied to the challenged provision, there is no question that there is a rational connection
between the fact proved, which is non-registration, and the ultimate fact presumed which
is violation of the DECREE, besides the fact that the prima facie presumption of violation of
the DECREE attaches only after a forty-five-day period counted from its effectivity and is,
therefore, neither retrospective in character.
6. We do not share petitioner's fears that the video industry is being over-regulated and
being eased out of existence as if it were a nuisance. Being a relatively new industry, the
need for its regulation was apparent. While the underlying objective of the DECREE is to
protect the moribund movie industry, there is no question that public welfare is at bottom
of its enactment, considering "the unfair competition posed by rampant film piracy; the
erosion of the moral fiber of the viewing public brought about by the availability of
unclassified and unreviewed video tapes containing pornographic films and films with
brutally violent sequences; and losses in government revenues due to the drop in theatrical
attendance, not to mention the fact that the activities of video establishments are virtually
untaxed since mere payment of Mayor's permit and municipal license fees are required to
engage in business." 1 7
The enactment of the Decree since April 10, 1986 has not brought about the "demise" of
the video industry. On the contrary, video establishments are seen to have proliferated in
many places notwithstanding the 30% tax imposed.
In the last analysis, what petitioner basically questions is the necessity, wisdom and
expediency of the DECREE. These considerations, however, are primarily and exclusively a
matter of legislative concern.
"Only congressional power or competence, not the wisdom of the action taken,
may be the basis for declaring a statute invalid. This is as it ought to be. The
principle of separation of powers has in the main wisely allocated the respective
authority of each department and confined its jurisdiction to such a sphere. There
would then be intrusion not allowable under the Constitution if on a matter left to
the discretion of a corporate branch, the judiciary would substitute its own. If
there be adherence to the rule of law, as there ought to be, the last offender
should be courts of justice, to which rightly litigants submit their controversy
precisely to maintain unimpaired the supremacy of legal norms and prescriptions.
The attack on the validity of the challenged provision likewise insofar as there
may be objections, even if valid and cogent, on its wisdom cannot be sustained."
18
In fine, petitioner has not overcome the presumption of validity which attaches to a
challenged statute. We find no clear violation of the Constitution which would justify us in
pronouncing Presidential Decree No. 1987 as unconstitutional and void. LLphil
WHEREFORE, the instant Petition is hereby dismissed.

No costs.
SO ORDERED.
Teehankee, C.J ., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento and Cortes, JJ ., concur.
Footnotes
1. Section 19[1]. Article VIII, 1973 Constitution; Section 26[1], Article VI, 1987 Constitution.
2. Sumulong vs. COMELEC, No. 48609, October 10, 1941, 73 Phil. 288; Cordero vs. Hon.
Jose Cabatuando, et al., L-14542, Oct. 31, 1962, 6 SCRA 418.
3. Public Service Co., Recktenwald, 290 Ill. 314, 8 A.L.R. 466, 470.
4. Government vs. Hongkong & Shanghai Banking Corporation, No. 44257, November 22,
1938, 66 Phil. 483; Cordero vs. Cabatuando, et al., supra.
5. Sumulong vs. Commission on Elections, supra.

6. United States vs. Sanchez, 340 U.S. 42, 44, 1950, cited in Bernas, Philippines
Constitutional Law, p. 594.
7. People vs. Carlos, L-239, June 30, 1947, 78 Phil. 535.

8. U.S. vs. Sanchez, supra.
9. II Cooley, A Treatise on the Constitutional Limitations, p. 986.

10. ibid., p. 987.
11. Magnano Co. vs. Hamilton, 292, U.S. 40.
12. Lutz vs. Araneta, L-7859, December 22, 1955, 98 Phil. 148, citing Carmichael vs.
Southern Coal and Coke Co., 301 U.S. 495, 81 L. ed. 1245.
13. ibid., citing Great Atl. and Pacific Tea Co. vs. Grosjean, 301 U.S. 412, 81 L. Ed. 1193;
U.S. vs. Butler, 297 U.S. 1, 80 L. Ed. 477; M'Culloch vs. Maryland, 4 Wheat, 316, 4 L. Ed.
579.
14. Cincinnati, W. & Z.R. Co. vs. Clinton County Comrs. (1852) 1 Ohio St. 88.
15. G.R. No. L-40195, May 29, 1987.
16. ibid., citing People vs. Mingoa, supra, See also U.S. vs. Lulling, No. 11162, August 12,
1916, 34 Phil. 725.
17. Solicitor General's Comments, p. 102, Rollo.
18. Morfe vs. Mutuc, L-20387, January 31, 1968, 22 SCRA 424, 450-451.

EN BANC
[G.R. No. 111812. May 31, 1995.]
DIONISIO M. RABOR , petitioner, vs. CIVIL SERVICE COMMISSION ,

respondent.
Public Attorney's Office for petitioner.

The Solicitor General for respondent.
SYLLABUS
1. ADMINISTRATIVE LAW; REVISED GOVERNMENT SERVICE INSURANCE ACT OF

1977 (P.D. 1146); EXTENSION OF SERVICE OF RETIREES; DOCTRINE IN CENA CASE (211
SCRA 179 [1992]), DISCUSSED. — While the Cena decision is barely three (3) years old, the
Court considers that it must reexamine the doctrine of Cena and the theoretical and policy
underpinnings thereof. Speaking through Mr. Justice Medialdea, the Court held that a
government employee who has reached the compulsory retirement age of sixty-five (65)
years, but at the same time has not yet completed fifteen (15) years of government service
required under Section 11 (b) of P.D. No. 1146 to qualify for the Old-Age Pension Benefit,
may be granted an extension of his government service for such period of time as may be
necessary to "fill up" or comply with the fifteen (15)-year service requirement. The Court
also held that the authority to grant the extension was a discretionary one vested in the
head of the agency concerned. The Court reached the above conclusion primarily on the
basis of the "plain and ordinary meaning" of Section 11 (b) of P.D. No. 1146. The Court
went on to rely upon the canon of liberal construction which has often been invoked in
respect of retirement statutes. While Section 11 (b) appeared cast in verbally unqualified
terms, there were (and still are) two (2) administrative issuances which prescribe
limitations on the extension of service that may be granted to an employee who has
reached sixty-five (65) years of age. The first administrative issuance is Civil Service
Commission Circular No. 27, Series of 1990, which states in part, "Any request for the
extension of service of compulsory retirees to complete the fifteen (15) years service
requirement for retirement all be allowed only to permanent appointees in the career
service who are regular members of the Government Service Insurance System (GSIS), and
shall be granted for a period not exceeding one (1) year." The second administrative
issuance — Memorandum Circular No. 65 of the Office of the President, dated 14 June
1988 — provides: 'Officials or employees who have reached the compulsory retirement
age of 65 years shall not be retained in the service, except for extremely meritorious
reasons in which case the retention shall not exceed six (6) months.' Medialdea, J. resolved
the challenges posed by the above two (2) administrative regulations by, firstly,
considering as invalid Civil Service Memorandum No. 27 and, secondly, by interpreting the
Office of the President's Memorandum Circular No. 65 as inapplicable to the case of
Gaudencio T. Cena.
2. ID.; ADMINISTRATIVE BODIES; SUBORDINATE RULE-MAKING BY ADMINISTRATIVE
AGENCY, PERMISSIBLE AND VALID. — It will be seen that Cena, in striking down Civil
Service Commission Memorandum No. 27, took a very narrow view on the question of
what subordinate rule-making by an administrative agency is permissible and valid. That
restrictive view must be contrasted with this Court's earlier ruling in People v. Exconde,
where Mr. Justice J.B.L. Reyes said: "It is well established in this jurisdiction that, while the
making of laws is a non-delegable activity that corresponds exclusively to Congress,
nevertheless, the latter may constitutionally delegate authority and promulgate rules and
regulations to implement a given legislation and effectuate its policies, for the reason that
the legislature often finds it impracticable (if not impossible) to anticipate and provide for
the multifarious and complex situations that may be met in carrying the law into effect. All
that is required is that the regulation should be germane to the objects and purposes of
the law; that the regulation be not in contradiction with it, but conform to the standards
that the law prescribes."
3. ID.; ID.; ID.; REQUISITE. — All that may be reasonably demanded is a showing that the
delegated legislation consisting of administrative regulations are germane to the general
purposes projected by the governing or enabling statute. This is the test that is
appropriately applied in respect of Civil Service Memorandum Circular No. 27, Series of
1990, and to this test we now turn.
4. ID.; CIVIL SERVICE LAW AND P.D. 1146; STATUTES GOVERNING EXTENSION OF
SERVICE OF RETIREES. — We consider that the enabling statute that should appropriately
be examined is the present Civil Service law — found in Book V, Title I, Subtitle A, of
Executive Order No. 292 dated 25 July 1987, otherwise known as the Administrative Code
of 1987 — and not alone P.D. No. 1146, otherwise known as the "Revised Government
Service Insurance Act of 1977." For the matter of extension of service of retirees who have
reached sixty-five (65) years of age is an area that is covered by both statutes and not
alone by Section 11(b) of P.D. No. 1146. This is crystal clear from examination of many
provisions of the present civil service law.
5. ID.; CIVIL SERVICE LAW; CIVIL SERVICE COMMISSION, MEMORANDUM CIRCULAR
NO. 27 LIMITING EXTENSION OF SERVICE OF RETIREES TO ONE YEAR, AN EXERCISE OF
ITS AUTHORITY AS THE CENTRAL PERSONNEL AGENCY OF THE GOVERNMENT. — It was
on the bases of Section 12 (2, 3, 10, 14, 17 and 19) of the 1987 Administrative Code that
the Civil Service Commission promulgated its Memorandum Circular No. 27. In doing so,
the Commission was acting as "the central personnel agency of the government
empowered to promulgate policies, standards and guidelines for efficient, responsive and
effective personnel administration in the government." It was also discharging its function
of "administering the retirement program for government officials and employees" and of
"evaluat[ing] qualifications for retirement." In addition, the Civil Service Commission is
charged by the 1987 Administrative Code with providing leadership and assistance "in the
development and retention of qualified and efficient work force in the Civil Service"
(Section 16 [10]) and with the "enforcement of the constitutional and statutory provisions,
relative to retirement and the regulation for the effective implementation of the retirement
of government officials and employees" (Section 16 [14]).
6. ID.; ID.; ID.; ID.; MEMORANDUM CIRCULAR NO. 27, DECLARED VALID AND
EFFECTIVE; DOCTRINE IN CENA CASE (211 SCRA 179 [1992]), MODIFIED. — Our
conclusion is that the doctrine of Cena should be and is hereby modified to this extent:
that Civil Service Memorandum Circular No. 27, Series of 1990, more specifically
paragraph (1) thereof, is hereby declared valid and effective. Section 11 (b) of P.D. No.
1146 must, accordingly, be read together with Memorandum Circular No. 27. We reiterate,
however, the holding in Cena that the head of the government agency concerned is vested
with discretionary authority to allow or disallow extension of the service of an official or
employee who has reached sixty-five (65) years of age without completing fifteen (15)
years of government service; this discretion is, nevertheless, to be exercised conformably
with the provisions of Civil Service Memorandum Circular No. 27, Series of 1990.
7. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; NO GRAVE ABUSE OF
DISCRETION IN CIVIL SERVICE RESOLUTION NO. 92-594 DISMISSING APPEAL OF
PETITIONER REQUESTING FOR EXTENSION OF SERVICE BEYOND THE RETIREMENT AGE.
— Applying now the results of our reexamination of Cena to the instant case, we believe
and so hold that Civil Service Resolution No. 92-594 dated 28 April 1992 dismissing the
appeal of petitioner Rabor and affirming the action of CSRO-XI Director Cawad dated 26
July 1991, must be upheld and affirmed. Accordingly, for all the foregoing, the Petition for
Certiorari is hereby dismissed for lack of merit.
DECISION
FELICIANO , J : p
Petitioner Dionisio M. Rabor is a Utility Worker in the Of ce of the Mayor, Davao

City. He entered the government service as a Utility Worker on 10 April 1978 at the age
of 55 years.
Sometime in May 1991, 1 Alma D. Pagatpatan, an of cial in the Of ce of the
Mayor of Davao City, advised Dionisio M. Rabor to apply for retirement, considering that
he had already reached the age of sixty-eight (68) years and seven (7) months, with
thirteen (13) years and one (1) month of government service. Rabor responded to this
advice by exhibiting a "Certi cate of Membership" 2 issued by the Government Service
Insurance System ("GSIS") and dated 12 May 1988. At the bottom of this "Certi cate of
Membership" is a typewritten statement of the following tenor: "Service extended to
comply 15 years service reqts." This statement is followed by a non-legible initial with
the following date "2/28/91." cdll
Thereupon, the Davao City Government, through Ms. Pagatpatan, wrote to the
Regional Director of the Civil Service Commission, Region XI, Davao City ("CSRO-XI"),
informing the latter of the foregoing and requesting advice "as to what action [should]
be taken on this matter."
In a letter dated 26 July 1991, Director Filemon B. Cawad of CSRO-XI advised
Davao City Mayor Rodrigo R. Duterte as follows:
"Please be informed that the extension of services of Mr. Rabor is contrary to M.C.
No. 65 of the Office of the President, the relevant portion of which is hereunder
quoted:
'Officials and employees who have reached the compulsory retirement age
of 65 years shall not be retained in the service, except for extremely
meritorious reasons in which case the retention shall not exceed six (6)
months.'
IN VIEW WHEREFORE, please be advised that the services of Mr. Dominador [M.]
Rabor as Utility Worker, in that office, is already non-extend[i]ble." 3
Accordingly, on 8 August 1991, Mayor Duterte furnished a copy of the 26 July
1991 letter of Director Cawad to Rabor and advised him "to stop reporting for work
effective August 16, 1991." 4
Petitioner Rabor then sent to the Regional Director, CSRO-XI, a letter dated 14
August 1991, asking for extension of his services in the City Government until he "shall
have completed the fteen (15) years service [requirement] in the Government so that
[he] could also avail of the bene ts of the retirement laws given to employees of the
Government." The extension he was asking for was about two (2) years. Asserting that
he was "still in good health and very able to perform the duties and functions of [his]
position as Utility Worker," Rabor sought "extension of [his] service as an exception to
Memorandum Circular No. 65 of the Of ce of the President." 5 This request was denied
by Director Cawad on 15 August 1991.
Petitioner Rabor next wrote to the Of ce of the President on 29 January 1992
seeking reconsideration of the decision of Director Cawad, CSRO-XI. The Of ce of the
President referred Mr. Rabor's letter to the Chairman of the Civil Service Commission
on 5 March 1992.
In its Resolution No. 92-594, dated 28 April 1992, the Civil Service Commission
dismissed the appeal of Mr. Rabor and af rmed the action of Director Cawad
embodied in the latter's letter of 26 July 1991. This Resolution stated in part: cdll
"In his appeal, Rabor requested that he be allowed to continue rendering services
as Utility Worker in order to complete the fifteen (15) year service requirement
under P.D. 1146.
CSC Memorandum Circular No. 27, s. 1990 provides, in part:
'1. Any request for extension of service of compulsory retirees to

complete the fifteen years service requirement for retirement shall be
allowed only to permanent appointees in the career service who are regular
members of the Government Service Insurance System (GSIS) and shall be
granted for a period of not exceeding one (1) year.'
Considering that as early as October 18, 1988, Rabor was already due for
retirement, his request for further extension of service cannot be given due
course." 6 (Emphasis supplied)
On 28 October 1992, Mr. Rabor sought reconsideration of Resolution No. 92-594

of the Civil Service Commission this time invoking the Decision of this Court in Cena v.
Civil Service Commission. 7 Petitioner also asked for reinstatement with back salaries
and bene ts, having been separated from the government service effective 16 August
1991. Rabor's motion for reconsideration was denied by the Commission.
Petitioner Rabor sent another letter dated 16 April 1993 to the Of ce of the
Mayor, Davao City, again requesting that he be allowed to continue rendering service to
the Davao City Government as Utility Worker in order to complete the fteen (15) years
service requirement under P.D. No. 1146. This request was once more denied by Mayor
Duterte in a letter to petitioner dated 19 May 1993. In this letter, Mayor Duterte pointed
out that, under Cena, grant of the extension of service was discretionary on the part of
the City Mayor, but that he could not grant the extension requested. Mayor Duterte's
letter, in relevant part, read:
"The matter was referred to the City Legal Office and the Chairman of the Civil
Service Commission, in the advent of the decision of the Supreme Court in the
Cena vs. CSC, et al. (G.R. No. 97419 dated July 3, 1992), for legal opinion. Both
the City Legal Officer and the Chairman of the Civil Service Commission are one
in these opinion that extending you an appointment in order that you may be able
to complete the fifteen-year service requirement is discretionary [on the part of]
the City Mayor.
Much as we desire to extend you an appointment but circumstances are that we
can no longer do so. As you are already nearing your 70th birthday may no longer
be able to perform the duties attached to your position. Moreover, the position you
had vacated was already filled up.
We therefore regret to inform you that we cannot act favorably on your request." 8
(Emphases supplied)
At this point, Mr. Rabor decided to come to this Court. He led a Letter/Petition
dated 6 July 1993 appealing from Civil Service Resolution No. 92-594 and from Mayor
Duterte's letter of 10 May 1993.
The Court required petitioner Rabor to comply with the formal requirements for
instituting a special civil action of certiorari to review the assailed Resolution of the Civil
Service Commission. In turn, the Commission was required to comment on petitioner's
Letter/Petition. 9 The Court subsequently noted petitioner's Letter of 13 September
1993 relating to compliance with the mentioned formal requirements and directed the
Clerk of Court to advise petitioner to engage the services of counsel or to ask for legal
assistance from the Public Attorney's Office (PAO). 1 0
The Civil Service Commission, through the Of ce of the Solicitor General, led its
comment on 16 November 1993. The Court then resolved to give due course to the
Petition and required the parties to le memoranda. Both the Commission and Mr.
Rabor (the latter through PAO counsel) did so.
In this proceeding, petitioner Rabor contends that his claim falls squarely within
the ruling of this Court in Cena v. Civil Service Commission.1 1
Upon the other hand, the Commission seeks to distinguish this case
f r o m Cena . The Commission, through the Solicitor General, stressed that in
Cena , this Court had ruled that the employer agency, the Land Registration
Authority of the Department of Justice, was vested with discretion to grant
to Cena the extension requested by him. The Land Registration Authority had
chosen not to exercise its discretion to grant or deny such extension. In
contrast, in the instant case, the Davao City Government did exercise its
discretion on the matter and decided to deny the extension sought by
petitioner Rabor for legitimate reasons. cdphil
While the Cena decision is barely three (3) years old, the Court
considers that it must reexamine the doctrine of Cena and the theoretical and
policy underpinnings thereof. 1 2
We start by recalling the factual setting of Cena .
Gaudencio Cena was appointed Registrar of the Register of Deeds of
Malabon, Metropolitan Manila, on 16 July 1987. He reached the compulsory
retirement age of sixty- ve (65) years on 22 January 1991. By the latter date,
his government service would have reached a total of eleven (11) years, nine
(9) months and six (6) days. Before reaching his 65th birthday, Cena
requested the Secretary of Justice, through the Administrator of the Land
Registration Authority ("LRA") that he be allowed to extend his service to
complete the fteen-year service requirement to enable him to retire with the
full bene t of an Old-Age Pension under Section 11 (b) of P.D. No. 1146. If
Cena's request were granted, he would complete fteen (15) years of
government service on 15 April 1994, at the age of sixty-eight (68) years.
The LRA Administrator sought a ruling from the Civil Service
Commission on whether or not Cena's request could be granted considering
that Cena was covered by Civil Service Memorandum No. 27, Series of 1990.
On 17 October 1990, the Commission allowed Cena a one (1) year extension
of his service from 22 January 1991 to 22 January 1992 under its
Memorandum Circular No. 27. Dissatis ed, Cena moved for reconsideration,
without success. He then came to this Court, claiming that he was entitled to
an extension of three (3) years, three (3) months and twenty-four (24) days to
complete the fteen-year service requirement for retirement with full
benefits under Section 11 (b) of P.D. No. 1146.
This Court granted Cena's petition in its Decision of 3 July 1992.
Speaking through Mr. Justice Medialdea, the Court held that a government
employee who has reached the compulsory retirement age of sixty- ve (65)
years, but at the same time has not yet completed fteen (15) years of
government service required under Section 11 (b) of P.D. No. 1146 to qualify
for the Old-Age Pension Bene t, may be granted an extension of his
government service for such period of time as may be necessary to " ll up"
or comply with the fteen (15)-year service requirement. The Court also held
that the authority to grant the extension was a discretionary one vested in the
head of the agency concerned. Thus the Court concluded: prLL
"Accordingly, the Petition is GRANTED. The Land Registration Authority

(LRA) and Department of Justice has the discretion to allow petitioner
Gaudencio Cena to extend his 11 years, 9 months and 6 days of
government service to complete the fifteen-year service so that he may
retire with full benefits under Section 11, paragraph (b) of P.D. 1146."
1 3 (Emphases supplied)
The Court reached the above conclusion primarily on the basis of the
"plain and ordinary meaning" of Section 11 (b) of P.D. No. 1146. Section 11
may be quoted in its entirety:
"Sec. 11. Conditions for Old-Age Pension . — (a) Old-Age Pension
shall be paid to a member who
(1) has at least fifteen (15) years of service;
(2) is at least sixty (60) years of age; and
(3) is separated from the service.
(b) unless the service is extended by appropriate authorities,

retirement shall be compulsory for an employee at sixty-five (65) years
of age with at least fifteen (15) years of service; Provided, that if he
has less than fifteen (15) years of service, he shall be allowed to
continue in the service to complete the fifteen (15) years ." (Emphases
supplied)
The Court went on to rely upon the canon of liberal construction which has
often been invoked in respect of retirement statutes:
"Being remedial in character, a statute granting a pension or
establishing [a] retirement plan should be liberally construed and
administered in favor of persons intended to be benefited thereby. The
liberal approach aims to achieve the humanitarian purposes of the law
in order that efficiency, security and well-being of government
employees may be enhanced." 1 4 (Emphasis omitted)
While Section 11 (b) appeared cast in verbally unquali ed terms, there

were (and still are) two (2) administrative issuances which prescribe
limitations on the extension of service that may be granted to an employee
who has reached sixty-five (65) years of age. LibLex
The rst administrative issuance is Civil Service Commission Circular

No. 27, Series of 1990, which should be quoted in its entirety:
"TO : ALL HEADS OF DEPARTMENTS, BUREAUS
AND AGENCIES OF THE NATIONAL/LOCAL
GOVERNMENTS INCLUDING GOVERNMENT-
OWNED AND/OR CONTROLLED
CORPORATIONS WITH ORIGINAL CHARTERS
SUBJECT : Extension of Service of Compulsory Retiree to
Complete the Fifteen Years Service Requirement for
Retirement Purposes
Pursuant to CSC Resolution No. 90-454 dated May 21, 1990, the Civil
Service Commission hereby adopts and promulgates the following
policies and guidelines in the extension of services of compulsory
retirees to complete the fifteen years service requirement for retirement
purposes:
1. Any request for the extension of service of compulsory retirees to

complete the fifteen (15) years service requirement for retirement shall
be allowed only to permanent appointees in the career service who are
regular members of the Government Service Insurance System (GSIS),
and shall be granted for a period not exceeding one (1) year .
2. Any request for the extension of service of compulsory retiree to

complete the fifteen (15) years service requirement for retirement who
entered the government service at 57 years of age or over upon prior
grant of authority to appoint him or her, shall no longer be granted.
3. Any request for the extension of service to complete the fifteen
(15) years service requirement of retirement shall be filed not later than
three (3) years prior to the date of compulsory retirement.
4. Any request for the extension of service of a compulsory retiree

who meets the minimum number of years of service for retirement
purposes may be granted for six (6) months only with no further
extension.
This Memorandum Circular shall take effect immediately." (Emphases
supplied)
The second administrative issuance — Memorandum Circular No. 65 of

the Office of the President, dated 14 June 1988 — provides:
"xxx xxx xxx
WHEREAS, this Office has been receiving requests for reinstatement

and/or retention in the service of employees who have reached the
compulsory retirement age of 65 years , despite the strict conditions
provided for in Memorandum Circular No. 163, dated March 5, 1968, as
amended.
WHEREAS, the President has recently adopted a policy to adhere more
strictly to the law providing for compulsory retirement age of 65 years
and, in extremely meritorious cases, to limit the service beyond the age
of 65 years to six (6) months only.
WHEREFORE, the pertinent provision of Memorandum Circular No. 163
on the retention in the service of officials or employees who have
reached the compulsory retirement age of 65 years, is hereby amended
to read as follows
'Officials or employees who have reached the compulsory
retirement age of 65 years shall not be retained in the service,
except for extremely meritorious reasons in which case the
retention shall not exceed six (6) months .'
All heads of departments, bureaus, offices and instrumentalities of the
government including government-owned or controlled corporations, are
hereby enjoined to require their respective offices to strictly comply
with this circular.
This Circular shall take effect immediately.
By Authority of the President
(Sgd.)
CATALINO MACARAIG, JR.
Executive Secretary
Manila, June 14, 1988." 15 (Emphasis supplied)
M ed iald ea, J . resolved the challenges posed by the above two (2)
administrative regulations by, rstly, considering as invalid Civil Service
Memorandum No. 27 and, secondly, by interpreting the Of ce of the
President's Memorandum Circular No. 65 as inapplicable to the case of
Gaudencio T. Cena. Cdpr
We turn rst to the Civil Service Commission's Memorandum Circular

No. 27. Medialdea, J . wrote:
"The Civil Service Commission Memorandum Circular No. 27 being in
the nature of an administrative regulation, must be governed by the
principle that administrative regulations adopted under legislative
authority by a particular department must be in harmony with the
provisions of the law, and should be for the sole purpose of carrying
into effect its general provisions (People v. Maceren, G.R. No. L-32166,
October 18, 1977, 79 SCRA 450; Teoxon v. Members of the Board of
Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel v.
General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660;
Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA 350). . . . The
rule on limiting to one year the extension of service of an employee who
has reached the compulsory retirement age of sixty-five (65) years, but
has less than fifteen (15) years of service under Civil Service
Memorandum Circular No. 27, S. 1990, cannot likewise be accorded
validity because it has no relationship or connection with any provision
of P.D. 1146 supposed to be carried into effect . The rule was an
addition to or extension of the law, not merely a mode of carrying it into
effect. The Civil Service Commission has no power to supply perceived
omissions in P.D. 1146." 1 6 (Emphasis supplied)
It will be seen that Cena , in striking down Civil Service Commission

Memorandum No. 27, took a very narrow view on the question of what
subordinate rule-making by an administrative agency is permissible and valid.
That restrictive view must be contrasted with this Court's earlier ruling in
People v. Exconde , 1 7 where Mr. Justice J.B.L. Reyes said:
"It is well established in this jurisdiction that, while the making of laws
is a non-delegable activity that corresponds exclusively to Congress,
nevertheless, the latter may constitutionally delegate authority and
promulgate rules and regulations to implement a given legislation and
effectuate its policies, for the reason that the legislature often finds it
impracticable (if not impossible) to anticipate and provide for the
multifarious and complex situations that may be met in carrying the
law in to effect. All that is required is that the regulation should be
germane to the objects and purposes of the law; that the regulation be
not in contradiction with it, but conform to the standards that the law
prescribes ." 1 8 (Emphasis supplied)
In Tablarin v. Gutierrez , 1 9 the Court, in sustaining the validity of a MECS
Order which established passing a uniform admission test called the National
Medical Admission Test (NMAT) as a prerequisite for eligibility for admission
into medical schools in the Philippines, said:
" The standards set for subordinate legislation in the exercise of rule
making authority by an administrative agency like the Board of Medical
Education are necessarily broad and highly abstract . As explained by
then Mr. Justice Fernando in Edu v. Ericta (35 SCRA 481 [1970]) —
' The standards may be either expressed or implied . If the former,
the non-delegation objection is easily met. The standard though
does not have to be spelled out specifically . It could be implied
from the policy and purpose of the act considered as a whole . In
the Reflector Law, clearly the legislative objective is public
safety . What is sought to be attained in Calalang v. William is
"safe transit upon the roads ."'
We believe and so hold that the necessary standards are set forth in
Section 1 of the 1959 Medical Act: 'the standardization and regulation
of medical education ' and in Section 5 (a) and 7 of the same Act, the
body of the statute itself , and that these considered together are
sufficient compliance with the requirements of the non-delegation
principle ." 2 0 (Citations omitted; emphasis partly in the original and
partly supplied)

I n Edu v. Ericta , 2 1 then Mr. Justice Fernando stressed the abstract and
very general nature of the standards which our Court has in prior caselaw
upheld as suf cient for purposes of compliance with the requirements for
validity of subordinate or administrative rule-making: LLjur
"This Court has considered as sufficient standards, 'public welfare,'

(Municipality of Cardona v. Municipality of Binangonan, 36 Phil. 547
[1917]); ' necessary in the interest of law and order ,' (Rubi v. Provincial
Board, 39 Phil. 660 [1919]); 'public interest,' (People v. Rosenthal, 68
Phil. 328 [1939]); and 'justice and equity and substantial merits of the
case,' (International Hardwood v. Pangil Federation of Labor, 17 Phil.
602 [1940])." 2 2 (Emphasis supplied)
Clearly, therefore, Cena when it required a considerably higher degree

of detail in the statute to be implemented, went against prevailing doctrine. It
seems clear that if the governing or enabling statute is quite detailed and
speci c to begin with, there would be very little need (or occasion) for
implementing administrative regulations. It is, however, precisely the inability
of legislative bodies to anticipate all (or many) possible detailed situations in
respect of any relatively complex subject matter, that makes subordinate,
delegated rule-making by administrative agencies so important and
unavoidable. All that may be reasonably demanded is a showing that the
delegated legislation consisting of administrative regulations are germane to
the general purposes projected by the governing or enabling statute. This is
the test that is appropriately applied in respect of Civil Service Memorandum
Circular No. 27, Series of 1990, and to this test we now turn.
We consider that the enabling statute that should appropriately be
examined in the present Civil Service law — found in Book V, Title I, Subtitle A,
of Executive Order No. 292 dated 25 July 1987, otherwise known as the
Administrative Code of 1987 — and not alone P.D. No. 1146, otherwise known
as the "Revised Government Service Insurance Act of 1977." For the matter of
extension of service of retirees who have reached sixty- ve (65) years of age
is an area that is covered by both statutes and not alone by Section 11 (b) of
P.D. No. 1146. This is crystal clear from examination of many provisions of
the present civil service law.
Section 12 of the present Civil Service law set out in the 1987
Administrative Code provides, in relevant part, as follows:
"Sec. 12. Powers and Functions . — The [Civil Service] Commission

shall have the following powers and functions:
xxx xxx xxx
(2) Prescribe, amend and enforce rules and regulations for carrying
into effect the provisions of the Civil Service Law and other pertinent
laws ;
(3) Promulgate policies, standards and guidelines for the Civil
Service and adopt plans and programs to promote economical, efficient
and effective personnel administration in the government;
xxx xxx xxx
(10) Formulate, administer and evaluate programs relative to the
development and retention of a qualified and competent work force in
the public service;
xxx xxx xxx
(14) Take appropriate action on all appointments and other
personnel matters in the Civil Service including extension of service
beyond retirement age ;
xxx xxx xxx
(17) Administer the retirement program for government officials and
employees , and accredit government services and evaluate
qualifications for retirement ;
xxx xxx xxx
(19) Perform all functions properly belonging to a central personnel
agency and such other functions as may be provided by law."
(Emphasis supplied)
It was on the bases of the above quoted provisions of the 1987

Administrative Code that the Civil Service Commission promulgated its
Memorandum Circular No. 27. In doing so, the Commission was acting as
"the central personnel agency of the government empowered to promulgate
policies, standards and guidelines for ef cient, responsive and effective
personnel administration in the government." 2 3 It was also discharging its
function of " administering the retirement program for government of cials
and employees" and of " evaluat[ing] qualifications for retirement ." LexLib
In addition, the Civil Service Commission is charged by the 1987

Administrative Code with providing leadership and assistance "in the
development and retention of quali ed and ef cient work force in the Civil
Service" ( Section 16 [10]) and with the " enforcement of the constitutional and
statutory provisions, relative to retirement and the regulation for the
effective implementation of the retirement of government of cials and
employees " ( Section 16 [14]).
We nd it very dif cult to suppose that the limitation of permissible
extensions of service after an employee has reached sixty- ve (65) years of
age has no reasonable relationship or is not germane to the foregoing
provisions of the present Civil Service Law. The physiological and
psychological processes associated with ageing in human beings are in fact
related to the ef ciency and quality of the service that may be expected from
individual persons. The policy considerations which guided the Civil Service
Commission in limiting the maximum extension of service allowable for
compulsory retirees, were summarized by Griño-Aquino, J . in her dissenting
opinion in Cena :
"Worth pondering also are the points raised by the Civil Service
Commission that extending the service of compulsory retirees for
longer than one (1) year would: (1) give a premium to late-comers in the
government service and in effect discriminate against those who enter
the service at a younger age ; (2) delay the promotion of the latter and
of next-in-rank employees ; and (3) prejudice the chances for
employment of qualified young civil service applicants who have
already passed the various government examinations but must wait for
jobs to be vacated by 'extendees' who have long passed the mandatory
retirement age but are enjoying extension of their government service to
complete 15 years so they may qualify for old-age pension." 2 4
(Emphasis supplied)
Cena laid heavy stress on the interest of retirees or would be retirees,

something that is, in itself, quite appropriate. At the same time, however, we
are bound to note that there should be countervailing stress on the interests
of the employer agency and of other government employees as a whole. The
results owing from the striking down of the limitation established in Civil
Service Memorandum Circular No. 27 may well be "absurd and inequitable,"
as suggested by Mme. Justice Griño-Aquino in her dissenting opinion. An
employee who has rendered only three (3) years of government service at
age sixty- ve (65) can have his service extended for twelve (12) years and
nally retire at the age of seventy-seven (77). This reduces the signi cance
of the general principle of compulsory retirement at age sixty- ve (65) very
close to the vanishing point. prcd
The very real dif culties posed by the Cena doctrine for rational
personnel administration and management in the Civil Service, are
aggravated when Cena is considered together with the case of Toledo v. Civil
Service Commission . 25 Toledo involved the provisions of Rule III, Section 22,
of the Civil Service Rules on Personnel Action and Policies (CSRPAP) which
prohibited the appointment of persons fty-seven (57) years old or above in
government service without prior approval of the Civil Service Commission.
Civil Service Memorandum Circular No. 5, Series of 1983 provided that a
person fty-seven (57) years of age may be appointed to the Civil Service
provided that the exigencies of the government service so required and
provided that the appointee possesses special quali cations not possessed
by other of cers or employees in the Civil Service and that the vacancy
cannot be lled by promotion of quali ed of cers or employees of the Civil
Service. Petitioner Toledo was appointed Manager of the Education and
Information Division of the Commission on Elections when he was almost
fty-nine (59) years old. No authority for such appointment had been
obtained either from the President of the Philippines or from the Civil Service
Commission and the Commission found that the other conditions laid down
in Section 22 of Rule III, CSRPAP, did not exist. The Court nevertheless struck
down Section 22, Rule III on the same exceedingly restrictive view of
permissible administrative legislation that Cena relied on. 2 6
When one combines the doctrine of Toledo with the ruling in Cena , very
strange results follow. Under these combined doctrines, a person sixty-four
(64) years of age may be appointed to the government service and one (1)
year later may demand extension of his service for the next fourteen (14)
years; he would retire at age seventy-nine (79) . The net effect is thus that the
general statutory policy of compulsory retirement at sixty- ve (65) years is
heavily eroded and effectively becomes unenforceable. That general
statutory policy may be seen to embody the notion that there should be a
certain minimum turn-over in the government service and that opportunities
for government service should be distributed as broadly as possible,
specially to younger people, considering that the bulk of our population is
below thirty (30) years of age. That same general policy also re ects the life
expectancy of our people which is still signi cantly lower than the life
expectancy of, e.g., people in Northern and Western Europe, North America
and Japan. llcd
Our conclusion is that the doctrine of Cena should be and is hereby

modi ed to this extent: that Civil Service Memorandum Circular No. 27,
Series of 1990, more speci cally paragraph (1) thereof, is hereby declared
valid and effective. Section 11 (b) of P.D. No. 1146 must, accordingly, be
read together with Memorandum Circular No. 27. We reiterate, however, the
holding in Cena that the head of the government agency concerned is vested
with discretionary authority to allow or disallow extension of the service of
an of cial or employee who has reached sixty- ve (65) years of age without
completing fteen (15) years of government service; this discretion is,
nevertheless, to be exercised conformably with the provisions of Civil Service
Memorandum Circular No. 27, Series of 1990.
We do not believe it necessary to deal speci cally with Memorandum
Circular No. 65 of the Of ce of the President dated 14 June 1988. It will be
noted from the text quoted supra (pp. 11-12) that the text itself of
Memorandum Circular No. 65 (and for that matter, that of Memorandum
Circular No. 163, also of the Of ce of the President, dated 5 March 1968) 2 7
d o e s not purport to apply only to of cers or employees who have reached
the age of sixty- ve (65) years and who have at least fteen (15) years of
government service. We noted earlier that Cena interpreted Memorandum
Circular No. 65 as referring only to of cers and employees who have both
reached the compulsory retirement age of sixty- ve (65) and completed the
fteen (15) years of government service. Cena so interpreted this
Memorandum Circular precisely because Cena had reached the conclusion
that employees who have reached sixty- ve (65) years of age, but who have
less than fteen (15) years of government service, may be allowed such
extension of service as may be needed to complete fteen (15) years of
service. In other words, Cena read Memorandum Circular No. 65 in such a
way as to comport with Cena 's own conclusion reached without regard to
that Memorandum Circular. In view of the conclusion that we today reached
in the instant case, this last ruling of Cena is properly regarded as merely
obiter .
We also do not believe it necessary to determine whether Civil Service
Memorandum Circular No. 27 is fully compatible with Of ce of the
President's Memorandum Circular No. 65; this question must be reserved for
detailed analysis in some future justiciable case.
Applying now the results of our reexamination of Cena to the instant
case, we believe and so hold that Civil Service Resolution No. 92-594 dated
28 April 1992 dismissing the appeal of petitioner Rabor and af rming the
action of CSRO-XI Director Cawad dated 26 July 1991, must be upheld and
affirmed. Cdpr
ACCORDINGLY, for all the foregoing, the Petition for Certiorari is hereby
DISMISSED for lack of merit. No pronouncement as to costs.
SO ORDERED.
Narvasa, C . J ., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Mendoza, and Francisco, JJ ., concur.
Padilla, J ., I vote to grant the petition for the same reasons stated in my
concurring opinion in Cena vs. CSC reported in 211 SCRA 192.
Quiason, J ., is on leave.
Footnotes
1. Annex "A," Letter/Petition, Rollo , p. 4.
2. Annex "A-1," Letter/Petition, Rollo , p. 5.

3. Annex "B," Letter/Petition, Rollo , p. 6.
4. Annex "B-1," Letter/Petition, Rollo , p. 7.
5. Annex "C," Letter/Petition, Rollo , p. 8.

6. CSC Resolution No. 92-594, i , pp. 11-12.
7. 211 SCRA 179 (1992).

8. Rollo , p. 3.
9. Supreme Court Resolution dated 24 August 1993, Rollo , p. 17.
10. Rollo , p. 40-A.

11. 211 SCRA 179 (1992).
12. Two (2) Justices dissented — Griño-Aquino and Romero, JJ . — from the
Cena decision.
13. 211 SCRA at 192.
14. 211 SCRA at 186.
15. 211 SCRA at 200-201.

16. 211 SCRA at 190.
17. 101 Phil. 1125 (1957).

18. 101 Phil. at 1129.
19. 152 SCRA 730 (1987).
20. 152 SCRA at 740-741.

21. 35 SCRA 481 (1970).
22. 35 SCRA at 497 (note 43).

23. See Addendum to Comment filed by Civil Service Commission dated 5
August 1991; Cena Rollo , p. 91.
24. 211 SCRA at 196.

25. 202 SCRA 507 (1991). We are not here, of course, reexamining Toledo for
this case is not, strictly speaking, involved at present. At the same time, we
cannot disregard the intellectual relevance of the doctrine in Toledo to the
issues that we are presently addressing.
26. Toledo held:

"[Section 22, Rule III] is entirely a creation of the Civil Service Commission,
having no basis in the law itself which it was meant to implement. It cannot
be related to or connected with any specific provision of the law which it is
meant to carry into effect, such as a requirement, for instance, that age
should be reckoned as a factor in the employment or reinstatement of an
individual, or a direction that there be a determination of some point in a
person's life at which he becomes unemployable or employable [only] under
specific conditions. . . . [S]ince there is no prohibition or restriction on the
employment of fifty-seven (57) year old persons . . . there was nothing to
carry into effect through an implementing rule on the matter." (202 SCRA at
513-514, per Paras, J .; emphasis supplied)
27. 64 Official Gazette 3295 (1 April 1968).

SECOND DIVISION
[G.R. No. 119528. March 26, 1997.]
PHILIPPINE AIRLINES, INC. , petitioner, vs . CIVIL AERONAUTICS

BOARD and GRAND INTERNATIONAL AIRWAYS, INC. , respondents.
Estelito P. Mendoza and Alberto E. Valenzuela, Jr. for petitioner.

Belo Gozon Elma Parez Asuncion & Lucila for Grand Air.
SYLLABUS
1. ADMINISTRATIVE LAW; CIVIL AERONAUTICS BOARD; JURISDICTION ON

APPLICATION FOR TEMPORARY OPERATING PERMIT. — The Civil Aeronautics Board has
jurisdiction over GrandAir's Application for a Temporary Operating Permit. This rule has
been established in the case of Philippine Air Lines Inc., vs. Civil Aeronautics Board,
promulgated on June 13, 1968. The Board is expressly authorized by Republic Act 776 to
issue a temporary operating permit or Certificate of Public Convenience and Necessity,
and nothing contained in the said law negates the power to issue said permit before the
completion of the applicant's evidence and that of the oppositor thereto on the main
petition. Indeed, the CAB's authority to grant a temporary permit "upon its own initiative"
strongly suggests the power to exercise said authority, even before the presentation of
said evidence has begun. Assuming arguendo that a legislative franchise is prerequisite to
the issuance of a permit, the absence of the same does not affect the jurisdiction of the
Board to hear the application, but tolls only upon the ultimate issuance of the requested
permit. There is nothing in the law nor in the Constitution, which indicates that a Legislative
franchise is an indispensable requirement for an entity to operate as a domestic air
transport operator. Although Section 11 of Article XII recognizes Congress' control over
any franchise, certificate or authority to operate a public utility, it does not mean Congress
has exclusive authority to issue the same. Franchise issued by Congress are not required
before each and every public utility may operate. In many instances, Congress has seen it
fit to delegate this function to government agencies, specialized particularly in their
respective areas of public service. A reading of Section 10 of RA 776, as amended by PD
1462 reveals the clear intent of Congress to delegate the authority to regulate the
issuance of a license to operate domestic air transport services.
2. ID; DELEGATION OF POWERS; POWER TO GRANT LICENSE FOR OPERATION OF
PUBLIC UTILITIES. — Congress has granted certain administrative agencies the power to
grant licenses for, or to authorize the operation of certain public utilities. With the growing
complexity of modern life, the multiplication of the subjects of governmental regulation,
and the increased difficulty of administering the laws, there is a constantly growing
tendency towards the delegation of greater powers by the legislature, and towards the
approval of the practice by the courts. It is generally recognized that a franchise may be
derived indirectly from the state through a duly designated agency, and to this extent, the
power to grant franchises has frequently been delegated, even to agencies other than
those of a legislative nature. In pursuance of this, it has been held that privileges conferred
by grant by local authorities as agents for the state constitute as much a legislative
franchise as though the grant had been made by an act of the Legislature. The trend of
modern legislation is to vest the Public Service Commissioner with the power to regulate
and control the operation of public services under reasonable rules and regulations, and as
a general rule, courts will not interfere with the exercise of that discretion when it is just
and reasonable and founded upon a legal right. Congress, by giving the respondent Board
the power to issue permits for the operation of domestic transport services, has
delegated to the said body the authority to determine the capability and competence of a
prospective domestic air transport operator to engage in such venture. This is not an
instance of transforming the respondent Board into a mini-legislative body, with unbridled
authority to choose who should be given authority to operate domestic air transport
services. Congress, in this instance, has set specific limitations on how such authority
should be exercised, Section 4 of R.A. No. 776, as amended, sets out guidelines or policies.
Section 12 and 21 of the same enumerated the requirements to determine the
competency of a prospective operator to engage in the public service of air transportation.
Furthermore, the procedure for the processing of the application of a Certificate of Public
Convenience and Necessity had been established to ensure the weeding out of those
entities that are not deserving of public service.
3. ID; CERTIFICATES OF PUBLIC CONVENIENCE; ELUCIDATED. — Many and varied are
the definitions of certificates of public convenience which courts and legal writers have
drafted. Some statutes use the terms "convenience and necessity" while others use only
the words "public convenience." The terms "convenience and necessity", if used together in
a statute, are usually held not to be separable, but are construed together. Both words
modify each other and must be construed together. The word 'necessity' is so connected,
not as an additional requirement but to modify and qualify what might otherwise be taken
as the strict significance of the word necessity. Public convenience and necessity exists
when the proposed facility will meet a reasonable want of the public and supply a need
which the existing facilities do not adequately afford. It does not mean or require an actual
physical necessity or an indispensable thing. The use of the word "necessity", in
conjunction with "public convenience" in a certificate of authorization to a public service
entity to operate, does not in any way modify the nature of such certification, or the
requirements for the issuance of the same. It is the law which determines the requisites
for the issuance of such certification, and not the titled indicating the certificate.
DECISION
TORRES , JR ., J : p
This Special Civil Action for Certiorari and Prohibition under Rule 65 of the Rules of Court
seeks to prohibit respondent Civil Aeronautics Board from exercising jurisdiction over
private respondent's Application for the issuance of a Certificate of Public Convenience
and Necessity, and to annul and set aside a temporary operating permit issued by the Civil
Aeronautics Board in favor of Grand International Airways (GrandAir, for brevity) allowing
the same to engage in scheduled domestic air transportation services, particularly the
Manila-Cebu, Manila-Davao, and converse routes.
The main reason submitted by petitioner Philippine Airlines, Inc. (PAL) to support its
petition is the fact that GrandAir does not possess a legislative franchise authorizing it to
engage in air transportation service within the Philippines or elsewhere. Such franchise is,
allegedly, a requisite for the issuance of a Certificate of Public Convenience or Necessity
by the respondent Board, as mandated under Section 11, Article XII of the Constitution.
Respondent GrandAir, on the other hand, posits that a legislative franchise is no longer a
requirement for the issuance of a Certificate of Public Convenience and Necessity or a
Temporary Operating Permit, following the Court's pronouncements in the case of Albano
vs. Reyes, 1 as restated by the Court of Appeals in Avia Filipinas International vs. Civil
Aeronautics Board 2 and Silangan Airways, Inc. vs. Grand International Airways, Inc., and
the Hon. Civil Aeronautics Board. 3
On November 24, 1994, private respondent GrandAir applied for a Certificate of Public
Convenience and Necessity with the Board, which application was docketed as CAB Case
No. EP-12711. 4 Accordingly, the Chief Hearing Officer of the CAB issued a Notice of
Hearing setting the application for initial hearing on December 16, 1994, and directing
GrandAir to serve a copy of the application and corresponding notice to all scheduled
Philippine Domestic operators. On December 14, 1994, GrandAir filed its Compliance, and
requested for the issuance of a Temporary Operating Permit. Petitioner, itself the holder of
a legislative franchise to operate air transport services, filed an Opposition to the
application for a Certificate of Public Convenience and Necessity on December 16, 1995
on the following grounds:
"A. The CAB has no jurisdiction to hear the petitioner's application until the
latter has first obtained a franchise to operate from Congress.
B. The petitioner's application is deficient in form and substance in that:
1. The application does not indicate a route structure including a

computation of trunkline, secondary and rural available seat kilometers
(ASK) which shall always be maintained at a monthly level at least 5% and
20% of the ASK offered into and out of the proposed base of operations for
rural and secondary, respectively.
2. It does not contain a project/feasibility study, projected profit and

loss statements, projected balance sheet, insurance coverage, list of
personnel, list of spare parts inventory, tariff structure, documents
supportive of financial capacity, route flight schedule, contracts on
facilities (hangars, maintenance, lot) etc.
C. Approval of petitioner's application would violate the equal protection

clause of the constitution.
D. There is no urgent need and demand for the services applied for.
E. To grant petitioner's application would only result in ruinous competition
contrary to Section 4(d) of R.A. 776." 5
At the initial hearing for the application, petitioner raised the issue of lack of jurisdiction of
the Board to hear the application because GrandAir did not possess a legislative franchise.
cdasia
On December 20, 1994, the Chief Hearing Officer of CAB issued an Order denying
petitioner's Opposition. Pertinent portions of the Order read:
"PAL alleges that the CAB has no jurisdiction to hear the petitioner's application
until the latter has first obtained a franchise to operate from Congress.
The Civil Aeronautics Board has jurisdiction to hear and resolve the application. In
Avia Filipina vs. CAB, CA G.R. No. 23365, it has been ruled that under Section 10
(c) (I) of R.A. 776, the Board possesses this specific power and duty.
In view thereof, the opposition of PAL on this ground is hereby denied.

SO ORDERED."
Meantime, on December 22, 1994, petitioner this time, opposed private respondent's
application for a temporary permit maintaining that:
"1. The applicant does not possess the required fitness and capability of
operating the services applied for under RA 776; and,
2. Applicant has failed to prove that there is clear and urgent public need for
the services applied for." 6
On December 23, 1994, the Board promulgated Resolution No. 119(92) approving the
issuance of a Temporary Operating Permit in favor of GrandAir 7 for a period of three
months, i.e., from December 22, 1994 to March 22, 1994. Petitioner moved for the
reconsideration of the issuance of the Temporary Operating Permit on January 11, 1995,
but the same was denied in CAB Resolution No. 02 (95) on February 2, 1995. 8 In the said
Resolution, the Board justified its assumption of jurisdiction over GrandAir's application.
"WHEREAS, the CAB is specifically authorized under Section 10-C (1) of Republic
Act No. 776 as follows:
'(c) The Board shall have the following specific powers and duties:
(1) In accordance with the provision of Chapter IV of this Act, to issue,

deny, amend, revise, alter, modify, cancel, suspend or revoke, in whole or in
part, upon petitioner-complaint, or upon its own initiative, any temporary
operating permit or Certificate of Public Convenience and Necessity;
Provided, however; that in the case of foreign air carriers, the permit shall
be issued with the approval of the President of the Republic of the
Philippines."
WHEREAS, such authority was affirmed in PAL vs. CAB, (23 SCRA 992), wherein
the Supreme Court held that the CAB can even on its own initiative, grant a TOP
even before the presentation of evidence;
WHEREAS, more recently, Avia Filipinas vs. CAB, (CA-GR No. 23365), promulgated
on October 30, 1991, held that in accordance with its mandate, the CAB can issue
not only a TOP but also a Certificate of Public Convenience and Necessity (CPCN)
to a qualified applicant therefor in the absence of a legislative franchise, citing
therein as basis the decision of Albano vs. Reyes (175 SCRA 264) which provides
(inter alia) that:
a) Franchises by Congress are not required before each and every

public utility may operate when the law has granted certain administrative
agencies the power to grant licenses for or to authorize the operation of
certain public utilities;
b) The Constitutional provision in Article XII, Section 11 that the

issuance of a franchise, certificate or other form of authorization for the
operation of a public utility does not necessarily imply that only Congress
has the power to grant such authorization since our statute books are
replete with laws granting specified agencies in the Executive Branch the
power to issue such authorization for certain classes of public utilities.
WHEREAS, Executive Order No. 219 which took effect on 22 January 1995,
provides in Section 2.1 that a minimum of two (2) operators in each route/link
shall be encouraged and that routes/links presently serviced by only one (1)
operator shall be open for entry to additional operators.
RESOLVED, (T)HEREFORE, that the Motion for Reconsideration filed by Philippine
Airlines on January 05, 1995 on the Grant by this Board of a Temporary Operating
Permit (TOP) to Grand International Airways, Inc. alleging among others that the
CAB has no such jurisdiction, is hereby DENIED, as it hereby denied, in view of the
foregoing and considering that the grounds relied upon by the movant are not
indubitable."
On March 21, 1995, upon motion by private respondent, the temporary permit was
extended for a period of six (6) months or up to September 22, 1995.
Hence this petition, filed on April 3, 1995.
Petitioners argue that the respondent Board acted beyond its powers and jurisdiction in
taking cognizance of GrandAir's application for the issuance of a Certificate of Public
Convenience and Necessity, and in issuing a temporary operating permit in the meantime,
since GrandAir has not been granted and does not possess a legislative franchise to
engage in scheduled domestic air transportation. A legislative franchise is necessary
before anyone may engage in air transport services, and a franchise may only be granted
by Congress. This is the meaning given by the petitioner upon a reading of Section 11,
Article XII, 9 and Section 1, Article VI, 1 0 of the Constitution.
To support its theory, PAL submits Opinion No. 163, S. 1989 of the Department of Justice,
which reads:
"Dr. Arturo C. Corona
Executive Director
Civil Aeronautics Board
PPL Building, 1000 U.N. Avenue

Ermita, Manila
Sir:
This has reference to your request for opinion on the necessity of a legislative
franchise before the Civil Aeronautics Board ("CAB") may issue a Certificate of
Public Convenience and Necessity and/or permit to engage in air commerce or air
transportation to an individual or entity.
You state that during the hearing on the application of Cebu Air for a
congressional franchise, the House Committee on Corporations and Franchises
contended that under the present Constitution, the CAB may not issue the
abovestated certificate or permit, unless the individual or entity concerned
possesses a legislative franchise. You believe otherwise, however, for the reason
that under R.A. No. 776, as amended, the CAB is explicitly empowered to issue
operating permits or certificates of public convenience and necessity and that this
statutory provision is not inconsistent with the current charter.
We concur with the view expressed by the House Committee on Corporations and
Franchises. In an opinion rendered in favor of your predecessor-in-office, this
Department observed that, —
". . . it is useful to note the distinction between the franchise to operate and a
permit to commence operation. The former is sovereign and legislative in nature;
it can be conferred only by the lawmaking authority (17 W and P, pp. 691-697).
The latter is administrative and regulatory in character (In re Application of Fort
Crook-Bellevue Boulevard Line, 283 NW 223); it is granted by an administrative
agency, such as the Public Service Commission [now Board of Transportation], in
the case of land transportation, and the Civil Aeronautics Board, in case of air
services. While a legislative franchise is a pre-requisite to a grant of a certificate
of public convenience and necessity to an airline company, such franchise alone
cannot constitute the authority to commence operations, inasmuch as there are
still matters relevant to such operations which are not determined in the franchise,
like rates, schedules and routes, and which matters are resolved in the process of
issuance of permit by the administrative. (Secretary of Justice Opn. No. 45, s.
1981)
Indeed, authorities are agreed that a certificate of public convenience and
necessity is an authorization issued by the appropriate governmental agency for
the operation of public services for which a franchise is required by law (Almario,
Transportation and Public Service Law, 1977 Ed., p. 293; Agbayani, Commercial
Law of the Phil., Vol. 4, 1979 Ed., pp. 380-381).
Based on the foregoing, it is clear that a franchise is the legislative authorization
to engage in a business activity or enterprise of a public nature, whereas a
certificate of public convenience and necessity is a regulatory measure which
constitutes the franchise's authority to commence operations. It is thus logical
that the grant of the former should precede the latter.
Please be guided accordingly.
(SGD.) SEDFREY A. ORDOÑEZ
Secretary of Justice"
Respondent GrandAir, on the other hand, relies on its interpretation of the provisions of
Republic Act 776, which follows the pronouncements of the Court of Appeals in the cases
of Avia Filipinas vs. Civil Aeronautics Board, and Silangan Airways, Inc. vs. Grand
International Airways (supra).
In both cases, the issue resolved was whether or not the Civil Aeronautics Board can issue
the Certificate of Public Convenience and Necessity or Temporary Operating Permit to a
prospective domestic air transport operator who does not possess a legislative franchise
to operate as such. Relying on the Court's pronouncement in Albano vs. Reyes (supra), the
Court of Appeals upheld the authority of the Board to issue such authority, even in the
absence of a legislative franchise, which authority is derived from Section 10 of Republic
Act 776, as amended by P.D. 1462. 1 1
The Civil Aeronautics Board has jurisdiction over GrandAir's Application for a Temporary
Operating Permit. This rule has been established in the case of Philippine Air Lines Inc., vs.
Civil Aeronautics Board, promulgated on June 13, 1968. 1 2 The Board is expressly
authorized by Republic Act 776 to issue a temporary operating permit or Certificate of
Public Convenience and Necessity, and nothing contained in the said law negates the
power to issue said permit before the completion of the applicant's evidence and that of
the oppositor thereto on the main petition. Indeed, the CAB's authority to grant a
temporary permit "upon its own initiative" strongly suggests the power to exercise said
authority, even before the presentation of said evidence has begun. Assuming arguendo
that a legislative franchise is prerequisite to the issuance of a permit, the absence of the
same does not affect the jurisdiction of the Board to hear the application, but tolls only
upon the ultimate issuance of the requested permit.
The power to authorize and control the operation of a public utility is admittedly a
prerogative of the legislature, since Congress is that branch of government vested with
plenary powers of legislation.
"The franchise is a legislative grant, whether made directly by the legislature itself,
or by any one of its properly constituted instrumentalities. The grant, when made,
binds the public, and is, directly or indirectly, the act of the state." 13
The issue in this petition is whether or not Congress, in enacting Republic Act 776, has
delegated the authority to authorize the operation of domestic air transport services to the
respondent Board, such that Congressional mandate for the approval of such authority is
no longer necessary.
Congress has granted certain administrative agencies the power to grant licenses for, or
to authorize the operation of certain public utilities. With the growing complexity of
modern life, the multiplication of the subjects of governmental regulation, and the
increased difficulty of administering the laws, there is a constantly growing tendency
towards the delegation of greater powers by the legislature, and towards the approval of
the practice by the courts. 1 4 It is generally recognized that a franchise may be derived
indirectly from the state through a duly designated agency, and to this extent, the power to
grant franchises has frequently been delegated, even to agencies other than those of a
legislative nature. 1 5 In pursuance of this, it has been held that privileges conferred by
grant by local authorities as agents for the state constitute as much a legislative franchise
as though the grant had been made by an act of the Legislature. 1 6
The trend of modern legislation is to vest the Public Service Commissioner with the power
to regulate and control the operation of public services under reasonable rules and
regulations, and as a general rule, courts will not interfere with the exercise of that
discretion when it is just and reasonable and founded upon a legal right. 1 7
It is this policy which was pursued by the Court in Albano vs. Reyes. Thus, a reading of the
pertinent issuances governing the Philippine Ports Authority, 1 8 proves that the PPA is
empowered to undertake by itself the operation and management of the Manila
International Container Terminal, or to authorize its operation and management by another
by contract or other means, at its option. The latter power having been delegated to the
PPA, a franchise from Congress to authorize an entity other than the PPA to operate and
manage the MICP becomes unnecessary.
Given the foregoing postulates, we find that the Civil Aeronautics Board has the authority
to issue a Certificate of Public Convenience and Necessity, or Temporary Operating Permit
to a domestic air transport operator, who, though not possessing a legislative franchise,
meets all the other requirements prescribed by the law. Such requirements were
enumerated in Section 21 of R.A. 776.
There is nothing in the law nor in the Constitution, which indicates that a legislative
franchise is an indispensable requirement for an entity to operate as a domestic air
transport operator. Although Section 11 of Article XII recognizes Congress' control over
any franchise, certificate or authority to operate a public utility, it does not mean Congress
has exclusive authority to issue the same. Franchises issued by Congress are not required
before each and every public utility may operate. 1 9 In many instances, Congress has seen
it fit to delegate this function to government agencies, specialized particularly in their
respective areas of public service.
A reading of Section 10 of the same reveals the clear intent of Congress to delegate the
authority to regulate the issuance of a license to operate domestic air transport services:
SEC. 10. Powers and Duties of the Board. (A) Except as otherwise provided
herein, the Board shall have the power to regulate the economic aspect of air
transportation, and shall have general supervision and regulation of, the
jurisdiction and control over air carriers, general sales agents, cargo sales agents,
and air freight forwarders as well as their property rights, equipment, facilities and
franchise, insofar as may be necessary for the purpose of carrying out the
provision of this Act.
In support of the Board's authority as stated above, it is given the following specific
powers and duties:
(C) The Board shall have the following specific powers and duties:
(1) In accordance with the provisions of Chapter IV of this Act, to issue, deny,
amend, revise, alter, modify, cancel, suspend or revoke in whole or in part upon
petition or complaint or upon its own initiative any Temporary Operating Permit or
Certificate of Public Convenience and Necessity: Provided however, That in the
case of foreign air carriers, the permit shall be issued with the approval of the
President of the Republic of the Philippines.
Petitioner argues that since R.A. 776 gives the Board the authority to issue "Certificates of
Public Convenience and Necessity", this, according to petitioner, means that a legislative
franchise is an absolute requirement. It cites a number of authorities supporting the view
that a Certificate of Public Convenience and Necessity is issued to a public service for
which a franchise is required by law, as distinguished from a "Certificate of Public
Convenience" which is an authorization issued for the operation of public services for
which no franchise, either municipal or legislative, is required by law. 2 0
This submission relies on the premise that the authority to issue a certificate of public
convenience and necessity is a regulatory measure separate and distinct from the
authority to grant a franchise for the operation of the public utility subject of this particular
case, which is exclusively lodged by petitioner in Congress.
We do not agree with the petitioner.
Many and varied are the definitions of certificates of public convenience which courts and
legal writers have drafted. Some statutes use the terms "convenience and necessity" while
others use only the words "public convenience." The terms "convenience and necessity", if
used together in a statute, are usually held not to be separable, but are construed together.
Both words modify each other and must be construed together. The word 'necessity' is so
connected, not as an additional requirement but to modify and qualify what might
otherwise be taken as the strict significance of the word necessity. Public convenience
and necessity exists when the proposed facility will meet a reasonable want of the public
and supply a need which the existing facilities do not adequately afford. It does not mean
or require an actual physical necessity or an indispensable thing. 2 1
"The terms 'convenience' and 'necessity' are to be construed together, although
they are not synonymous, and effect must be given both. The convenience of the
public must not be circumscribed by according to the word 'necessity' its strict
meaning or an essential requisites." 2 2
The use of the word "necessity", in conjunction with "public convenience" in a certificate of
authorization to a public service entity to operate, does not in any way modify the nature of
such certification, or the requirements for the issuance of the same. It is the law which
determines the requisites for the issuance of such certification, and not the title indicating
the certificate.
Congress, by giving the respondent Board the power to issue permits for the operation of
domestic transport services, has delegated to the said body the authority to determine the
capability and competence of a prospective domestic air transport operator to engage in
such venture. This is not an instance of transforming the respondent Board into a mini-
legislative body, with unbridled authority to choose who should be given authority to
operate domestic air transport services.
"To be valid, the delegation itself must be circumscribed by legislative restrictions,
not a "roving commission" that will give the delegate unlimited legislative
authority. It must not be a delegation "running riot" and "not canalized with banks
that keep it from overflowing." Otherwise, the delegation is in legal effect an
abdication of legislative authority, a total surrender by the legislature of its
prerogatives in favor of the delegate." 2 3
Congress, in this instance, has set specific limitations on how such authority should be
exercised.
Firstly, Section 4 of R.A. No. 776, as amended, sets out the following guidelines or policies:
"SEC. 4. Declaration of policies. In the exercise and performance of its powers
and duties under this Act, the Civil Aeronautics Board and the Civil Aeronautics
Administrator shall consider the following, among other things, as being in the
public interest, and in accordance with the public convenience and necessity:
(a) The development and utilization of the air potential of the Philippines;
(b) The encouragement and development of an air transportation system
properly adapted to the present and future of foreign and domestic commerce of
the Philippines, of the Postal Service and of the National Defense;
(c) The regulation of air transportation in such manner as to recognize and

preserve the inherent advantages of, assure the highest degree of safety in, and
foster sound economic condition in, such transportation, and to improve the
relations between, and coordinate transportation by, air carriers;
(d) The promotion of adequate, economical and efficient service by air
carriers at reasonable charges, without unjust discriminations, undue preferences
or advantages, or unfair or destructive competitive practices;
(e) Competition between air carriers to the extent necessary to assure the
sound development of an air transportation system properly adapted to the need
of the foreign and domestic commerce of the Philippines, of the Postal Service,
and of the National Defense;
(f) To promote safety of flight in air commerce in the Philippines; and,
(g) The encouragement and development of civil aeronautics.
More importantly, the said law has enumerated the requirements to determine the
competency of a prospective operator to engage in the public service of air transportation.
SEC. 12. Citizenship requirement. Except as otherwise provided in the
Constitution and existing treaty or treaties, a permit authorizing a person to
engage in domestic air commerce and/or air transportation shall be issued only
to citizens of the Philippines. 2 4
SEC. 21. Issuance of permit. The Board shall issue a permit authorizing the
whole or any part of the service covered by the application, if it finds: (1) that the
applicant is fit, willing and able to perform such service properly in conformity
with the provisions of this Act and the rules, regulations, and requirements issued
thereunder; and (2) that such service is required by the public convenience and
necessity; otherwise the application shall be denied.
Furthermore, the procedure for the processing of the application of a Certificate of Public
Convenience and Necessity had been established to ensure the weeding out of those
entities that are not deserving of public service. 2 5
In sum, respondent Board should now be allowed to continue hearing the application of
GrandAir for the issuance of a Certificate of Public Convenience and Necessity, there being
no legal obstacle to the exercise of its jurisdiction. cdtai
ACCORDINGLY, in view of the foregoing considerations, the Court RESOLVED to DISMISS

the instant petition for lack of merit. The respondent Civil Aeronautics Board is hereby
DIRECTED to CONTINUE hearing the application of respondent Grand International
Airways, Inc. for the issuance of a Certificate of Public Convenience and Necessity.
SO ORDERED.
Regalado and Puno, JJ ., concur.
Romero and Mendoza, JJ ., took no part.
Footnotes
1. G.R. No. 83551, July 11, 1989, 175 SCRA 264.

2. CA G.R. SP No. 23365, October 30, 1991.
3. CA G.R. SP No. 36787, July 19, 1995.

4. Annex "A" Petition, p. 31, Rollo.
5. Annex "D", Petition, Rollo, pp. 43-44.
6. Annex "F", Petition, Rollo, pp. 54-63.
7. Annex "H", Petition, Rollo, p. 79.
8. Annex "I", Petition, Rollo, pp. 80-81.
9. Section 11. No franchise, certificate, or any other form of authorization for the operation
of a public utility shall be granted except to citizens of the Philippines or to corporations
or associations organized under the laws of the Philippines at least sixty per centum of
whose capital is owned by such citizens, nor shall such franchise, certificate, or
authorization be exclusive in character or for a longer period than fifty years. Neither
shall any franchise or right be granted except under the condition that it shall be subject
to amendment, alteration, or repeal by the Congress when the common good so requires.
The state shall encourage equity participation in public utilities by the general public.
The participation of foreign investors in the governing body of any public utility
enterprise shall be limited to their proportionate share in its capital, and all the executive
and managing officers of such corporation or association must be citizens of the
Philippines.
10. Section 1. The legislative power shall be vested in the Congress of the Philippines,
which shall consist of a Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and referendum.
11. SEC. 10. Powers and Duties of the Board. (A) Except as otherwise provided herein, the
Board shall have the power to regulate the economic aspect of air transportation, and
shall have general supervision and regulation of, the jurisdiction and control over air
carriers, general sales agents, cargo sales agents, and air freight forwarders as well as
their property rights, equipment, facilities and franchise, insofar as may be necessary for
the purpose of carrying out the provision of this Act.
(B) The Board may perform such acts, conduct such investigation, issue and
amend such orders, and make and amend such general or special rules, regulations, and
procedures as it shall deem necessary to carry out the provisions of this Act.
(C) The Board shall have the following specific powers and duties:
(1) In accordance with the provisions of Chapter IV of this Act, to issue, deny,
amend, revise, alter, modify, cancel, suspend or revoke in whole or in part upon petition
or complaint or upon its own initiative any Temporary Operating Permit or Certificate of
Public Convenience and Necessity: Provided however, That in the case of foreign air
carriers, the permit shall be issued with the approval of the President of the Republic of
the Philippines. . . .
12. G.R. No. L-24219, 23 SCRA 992.

13. Walla Walla v. Walla Walla Water Co., 172 US 1, 36 Am Jur 2d 734.
14. Pangasinan Transportation Co., Inc. vs. The Public Service Commission, G.R. No.
47065, June 26, 1940, 70 Phil 221.
15. Dyer vs. Tuskaloosa Bridge Co., 2 Port. 296, 27 Am. D. 655; Christian-Todd Tel. Co. vs.
Commonwealth, 161 S.W. 543, 156 Ky. 557, 37 C.J.S. 158.
16. Superior Water, Light and Power Co. vs. City of Superior, 181 N.W. 113, 174 Wis. 257,
affirmed 183 N.W. 254, 37 C.J.S. 158.
17. Ynchausti Steamship Co. vs. PUC, 42 Phil 642.

18. P.D. 857 and Executive Order No. 30.
19. Albano vs. Reyes, supra.

20. Memorandum of Petitioner, Rollo, pp. 417-418.
21. Almario, Transportation and the Public Service Law, 1966 ed., p. 288.
22. Wisconsin Tel. Co. vs. Railroad Commission, 156 N.W. 614, 162 N.W. 383, 73 C.J.S.
1099.
23. Cruz, I., Philippine Political Law, 1996. p. 97.
24. See Section 11, Article XII, Constitution, supra.

25. See Sections 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, and 24, RA 776.

EN BANC
[G.R. No. L-17122. February 27, 1922.]
THE UNITED STATES, plaintiff-appellee, vs . NAG TANG HO , defendant-

appellant.
Williams & Ferrier for appellant.

Acting Attorney-General Tuason for appellee.
SYLLABUS
1. ORGANIC LAW. — By the organic law of the Philippine Islands and the
Constitution of the United States, all powers are vested in the Legislature, Executive,
and Judiciary. It is the duty of the Legislature to make the law; of the Executive; and of
the Judiciary to construe the law. The Legislature has no authority to execute or
construe the law; the Executive has no authority to make or construe the law; and the
Judiciary has no power to make or execute the law.
2. POWER. — Subject to the Constitution only, the power of each branch is
supreme within its own jurisdiction, and it is for the judiciary only to say when any Act of
the Legislature is or is not constitutional.
3. THE POWER TO DELEGATE. — The Legislature cannot delegate legislative
power to enact any law. If Act No. 2868 is a law unto itself and within itself, and it does
nothing more than to authorize the Governor-General to make rules and regulations to
carry it into effect, then the Legislature created the law. There is no delegation of power
and it is valid. One the other hand, if the act within itself does not define a crime and is
not complete, and some legislative act remains to be done to make it law or a crime,
the doing of which is vested in the Governor-General, the is a delegation of legislative
power, is unconstitutional and avoid.
4. No CRIME TO SELL. — After the passage of Act No. 2868, and without any
rules and regulations of the Governor-General, a dealer in rice could sell it at any price
and he would not commit a crime. There was no legislative act which made it a crime to
sell rice at any price.
5. CRIME BY PROCLAMATION. — When Act No. 2868 is analyzed, it is the
violation of the Proclamation of the Governor-General which constitutes the crime. The
alleged sale was made a crime, if at all, because of the Proclamation by the Governor-
General.
6. UNCONSTITUTIONAL. — In so far as Act No. 2868 undertakes to authorize
the Governor-General, in his discretion, to issue a proclamation fixing the price and to
make the sale of it in violation of the proclamation a crime, it is unconstitutional and
void.
7. CONSTITUTION. — The Constitution is something solid, permanent and
substantial. It stability protects the rights, liberty, and property rights of the rich and the
poor alike, and its construction ought not to change with emergencies or conditions.
8. PRIVATE RIGHTS. — In the instant case, the law was not dealing with
Government property. It was dealing with private property and private rights which are
sacred under the Constitution.
9. PRIVATE PROPERTY. — In the instant case, the rice was the personal,
private property of the defendant. The Government had not bought it, did not claim to
own it, or have any interest in it at the time the defendant sold it to one of his
customers.
10. POWER VESTED IN THE LEGISLATURE. — By the organic act and subject
only to constitutional limitations, the power to legislate and enact laws is vested
exclusively in the Legislature, which is elected by a direct vote of the people of the
Philippine Islands.
11. OPINION LIMITED. — This opinion is confined to the right of the
Governor-General to issue a proclamation fixing the maximum price at which rice
should be sold, and to make it a crime to sell it at a higher price, and to that extent
holds that it is an unconstitutional delegation of legislative power. It does not decide or
undertake to construe the constitutionality of any of the remaining portions of Act No.
2868.
DECISION
JOHNS , J : p
At its special session of 1919, the Philippine Legislature passed Act No. 2868,
entitled "An Act penalizing the monopoly and hoarding of, and speculation in palay, rice,
and corn under extraordinary circumstances, regulating the distribution and sale
thereof, and authorizing the Governor-General, with the consent of the Council of States.
to issue the necessary rules and regulations therefor, and making an appropriation for
this purpose," the material provisions of which are as follows:
"Section 1. The Governor-General is hereby authorized, whenever, for any
cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or
corn, to issue and promulgate, with the consent of the Council of States, temporary
rules and emergency measures for carrying out the purpose of this Act. to wit:
"(a) To prevent the monopoly and hoarding of, and speculation in, palay rice
or corn.
"(b) To establish and maintain a government control of the distribution or
sale of the commodities referred to or have such distribution or sale made by the
Government itself.
"(c) To fix, from time to time, the quantities of palay, rice, or corn that a
company or individual may acquire, and the maximum sale price that the industrial or
merchant may demand.
"(d) ...
"SEC. 2. It shall be unlawful to destroy, limit, prevent or in the other manner
obstruct the production or milling of palay, rice or corn for the purpose of raising the
prices thereof; to corner or hoard said products as defined in section three of this Act; . .
."
Section 3 de nes what shall constitute a monopoly or hoarding of palay, rice or
corn within the meaning of this Act, but does not specify the price of rice of de ne any
basis for fixing the price.
"SEC. 4. The violations of any of the provisions of this Act or of the
regulations, orders and decrees promulgated in accordance therewith shall be
punished by a fine of not more than five thousand pesos, or by imprisonment for not
more than two years, or both, in the discretion of the court: Provided, That in the case
of companies or corporations, the manager or administrator shall be criminally liable.
"SEC. 7. At any time that the Governor-General, with the consent of the
Council of State, shall consider that the public interest requires the application of the
provisions of this Act, he shall so declare by proclamation, and any provisions of other
laws inconsistent herewith shall from then on be temporarily suspended.
"Upon the cessation of the reasons foe which such proclamation was issued,
the Governor-General, with the consent of the Council of States, shall declare the
application of this Act to have likewise terminated, and all laws temporarily suspended
by virtue of the same shall again take effect, but such termination shall not prevent the
prosecution of any proceedings or cause begun prior to such termination, nor the filing
of any proceedings for an offense committed during the period covered by the
Governor-General's proclamation."
August 1, 1919, the Governor-General issued a proclamation xing the price at
which rice should be sold.
August 8, 1919, a complaint was led against the defendant, NAG Tang Ho,
charging him with the sale of rice at an excessive price as follows:
"The undersigned accuses NAG Tang Ho of a violation of Executive Order No.
53 of the Governor-General of the Philippines, dated the 1st of August, 1919, in relation
with the provisions of sections 1, 2 and 4 Act No. 2868, committed as follows:
"That on or about the 6th day of August, 1919, in the city of Manila, Philippine
Islands, the said NAG Tang Ho. voluntarily, illegally and criminally sold to Pedro
Trinidad, one Janet of rice at the price of eighty centavos (P.80). which is a price
greater than that fixed by Executive Order No. 53 of the Governor-General of the
Philippines, dated the 1st of August, 1919, under the authority of section 1 of Act No.
2868. Contrary to law."
Upon this charge, he was tried, found guilty and sentenced to ve months'
imprisonment and to pay a ne of P500, from which he appealed to this court, claiming
that the lower court erred in nding Executive Order No. 53 of 1919, to be of any force
and effect, in nding the accused guilty of the offense charged, and in imposing the
sentence.
The of cial records show that Act was to take effect on its approval; that it was
approved July 30,1919; that the Governor-General issued his proclamation on the 1st
of August, 1919; and that the law was rst published on the 13th of August, 1919; and
that the proclamation itself was first published on the 20th of August, 1919.
The question here involves an analysis and construction of Act No. 2868, in so far
as it authorizes the Governor-General to x the price at which rice should be sold. It will
be noted that section 1 authorizes the Governor-General, with the consent of the
Council of State, for any cause resulting in an extraordinary rise in the price of palay, rice
or corn, to issue and promulgated temporary rules and emergency measures for
carrying out the purposes of the Act. By its very terms, the promulgation of temporary
rules and emergency measures is left to the discretion of the Governor-General. The
Legislature does not undertake reasons the Governor-General shall issue the
proclamation, but says that it may be issued " for any cause," and leaves the question as
to what is "any cause" to the discretion of the Governor-General. The Act also says: "For
any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or
corn." The Legislature does not specify or de ne what is "an extraordinary rise." That is
also left to the discretion of the Governor-General. The Act also says that the Governor-
General, "with the consent of the Council of State," is authorized to issue and
promulgate "temporary rules and emergency measures for carrying out the purposes of
this Act." It does not specify or de ne what is a temporary rule or an emergency
measure, or how long such temporary rules or emergency measures shall remain in
force and effect, or when they shall take effect. That is to say the Legislature itself has
no in any manner speci ed or de ned any basis for the order, but has left it to the sole
judgment and discretion of the Governor-General to say what is or what is not "a cause,"
and what is or what is not "an extraordinary rise in the price of rice," and as to what a
temporary rule or an emergency measure for the carrying out the purpose of the Act
Under this state of facts, if the law is valid and the Governor-General issues a
proclamation xing the minimum price at which rice should be sold, any dealer who,
with or without notice, sells rice at a higher price, is a criminal. There may not have been
any cause, and the price may not have been extraordinary, and there may not have been
an emergency, but, if the Governor-General found the existence of such facts and
issued a proclamation, and rice is sold at any higher price, the seller commits a crime.
By the organic law of the Philippine Islands and the Constitution of the United
States all power are vested in the Legislative, Executive and Judiciary. It is the duty of
the Legislature to make the law; of the Executive to execute the law; and of the
Judiciary to construe the law. The Legislature has no authority to executive or construe
the law, the Executive has no authority to make or construe the law, and the Judiciary
has no power to make or executive the law. Subject to the Constitution only, the power
of each branch is supreme within its own jurisdiction, and it is for the Judiciary only to
say when any Act of the Legislature is or is not constitutional. Assuming, without
deciding, that the Legislature itself has the power to x the price at which rice is to be
sold, can it delegate that power to another, and, if so, was that power legally delegated
by Act. No. 2868? In other words, does the Act delegate legislative power to the
Governor-General? By the Organic Law, all legislative power is vested in the Legislature,
and the power conferred upon the Legislature to make laws cannot be delegated to the
Governor-General, or any one else. The Legislative cannot delegate the Legislative
power to enact any law. If Act No. 2868 is a law unto itself and within itself, and it does
nothing more than to authorize the Governor-General to make rules and regulations to
carry the law into effect, then the Legislature itself created the law. There is no
delegation of power and it is valid. On the other hand, if the Act within itself does not
de ne a crime, and is not a law, and some legislative act remains to be done to make it
a law or a crime, the doing of which is vested in the Governor-General, then the Act is a
delegation of legislative power, is unconstitutional and avoid.
The Supreme Court of the United States in what is known as the Grainer Cases
(94 U. S.. 183-187; 24 L, ed., 94), first laid down the rule:
"Railroad companies are engaged in public employment affecting the public
interest and, under the decision in Mun vs. Ill., ante subject to Legislative control as to
their rates of fare and freight unless protect by their charters.
"The Illinois statute of Mar. 23, 1874, to established reasonable maximum rates
of charges for the transportation of freights and passengers on the different railroads
of the State is not void as being repugnant to the Constitution of the United States or to
that of the State."
It was there for the rst time held in substance that a railroad was a public utility,
and that, being a public utility, the State had power to establish reasonable maximum
freight and passenger rates. This was followed by the State of Minnesota in enacting a
similar law, providing for and empowering, a railroad commission to hear and
determine what was a just and reasonable rate. The constitutionality of this law was
attacked and upheld by the Supreme Court of Minnesota in a learned and exhaustive
opinion by Justice Mitchell, in the case of State vs. Chicago, Milwaukee & St. Paul Ribs.
Co. (38 Minn., 281), in which the court held:
"Regulations of railway tariffs — Conclusiveness of commission's tariffs. —
Under Laws 1887, c. 10, sec. 8, the determination of the railroad and warehouse
commission as to what are equal and reasonable fares rates for the transportation of
persons and property by a railway company is conclusive, and, in proceedings by
mandamus to compel compliance with the tariff of rates recommended and published
by them, no issue can be raise or inquiry had on that question.
"Same — Constitution — Delegation of power to commission. — The authority
thus given to the commission to determine, in the exercise of their discretion and
judgment, what are equal and reasonable rates, is not a delegation of legislative
power."
It will be noted that the law creating the railroad commission expressly provides
—
"That all charges by any common carrier for the transportation of passengers
and property shall be equal and reasonable."
With that as a basis for the law, power is then given to the railroad commission
to investigate all the facts, to hear and determine what is a just and reasonable rate.
Even then that law does not make the violation of the order of the commission a crime.
The only remedy is a civil proceeding. It was there held —
"That the legislature itself has the power to regulate railroad charges is now too
well settled to require either argument or citation of authority.
"The difference between the power to say what the law shall be, and the power
to adopt rules and regulations, or to investigate and determine the facts, in order to
carry into effect a law already passed, is apparent. The true distinction is between the
delegation of power to make the law, which necessarily involves a discretion as to
what it shall be, and the conferring an authority or discretion to be exercised under and
in pursuance of the law.
"The legislature enacts that all freight rates and passenger fares should be just
and reasonable. It had the undoubted power to fix these rates at whatever it deemed
equal and reasonable.
"They have not delegated to the commission any authority or discretion as to
what the law shall be, — which would not be allowable, — but have merely conferred
upon it an authority and discretion, to be exercised in the execution of the law, and
under and in pursuance of it, which is entirely permissible. The legislature itself has
passed upon the expediency of the law, and what it shall be. The commission is
intrusted with no authority or discretion upon these questions. It can neither make nor
unmade a single provision of law. It is merely charged with the administration of the
law, and with no other power."
The delegation of legislative power was before the Supreme Court of Wisconsin
in Doling vs Lancaster Ins. Co. (92 Wis., 63). The opinion says:
"The true distinction is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be and conferring 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.'
"The act, in our judgment, wholly fails to provide definitely and clearly what the
standard policy should contain so that it could be put in use as a uniform policy
required to take the place of all others, without the determination of the insurance
commissioner in respect to matters involving the exercise of a legislative discretion
that could not be delegated, and without which the act could not possibly be put in use
as an act in conformity to which all fire insurance policies were required to be issued.
"The result of all the cases on this subject is that a law must be complete, in all
its terms and provisions, when it leaves the legislative branch of the government, and
nothing must be left to the judgment of the electors or other appointee or delegate of
the legislature, so that, in form and substances, it is a law in all its details in presenting,
but which may be left to take effect in future, if necessary, upon the ascertainment of
any prescribed fact or event."
The delegation of legislative power was before the Supreme Court in United
States vs. Grimed (220 U. S., 506; 55 L. ed., 563), where it was held that the rules and
regulations of the Secretary of Agriculture as to a trespass on government land in a
forest reserve were valid constitutional. The Act there provided that the Secretary of
Agriculture " . . . may make such rules and regulations and establish such service as will
insure the objects of such reservation; namely, to regulate their occupancy and use, and
to preserve the forests thereon from destruction; and any violation of the provisions of
this act or such rules and regulations shall be punished, . . ."
The brief of the United States Solicitor-General says:
"In refusing permits to use s forest reservation for stock grazing, except upon
stated terms or in stated ways, the Secretary of Agriculture merely asserts and enforces
the proprietary right of the United States over land which it owns. The regulations of
the Secretary, therefore, is not an exercise of legislative, or even of administrative,
power; but is an ordinary and legitimate refusal of the landowner's authorized agent to
allow persons having no right in the land to use it as they will. The right of proprietary
control is altogether different from governmental authority."
The opinion says:
"From the beginning of the government, various acts have been passed
conferring upon executive officers power to make rules and regulations, — not for
the government of their departments, but for administering the laws which did
govern. None of these statutes could confer legislative power. But when Congress
had legislated and indicated its will, it could give to those who were to act under
such general provisions power to fill up the details' by the establishment of
administrative rules and regulations, the violation of which be punished by fine
imprisonment fixed by Congress, or by penalties fixed by Congress, or measured
by the injury done.
"That 'Congress cannot delegate legislative power is a principle universally
recognized as vital to the integrity and maintenance of the system of government
ordained by the Constitution.'
"If, after the passage of the act and the promulgation the rule, the
defendants drove and grazed their sheep upon the reserve, in violation of the
regulations, they were making an unlawful use of the government's property. In
doing so they thereby made themselves liable to the penalty imposed by
Congress."
"The subject as to which the Secretary can regulate are defined. The lands
are set apart as a forest reserve. He is required to make provision to protect them
from depredations and from harmful uses. He is authorized 'to regulate the
occupancy and use and to use to preserve the forests from destruction.' A
violation of reasonable rules regulating the use and occupancy of the property is
made a crime, not by the Secretary, but by Congress."
The above are leading cases in the United States on the question of delegating
legislative power. It will be noted that in the "Grainer Cases," it was held that a railroad
company was a public corporation, and that a railroad was a public utility, and that, for
such reasons the Legislature had the power to x and determine just and reasonable
rates for freight and passengers.
The Minnesota case held that, so long as the rates were just and reasonable, the
legislature could delegate the power to ascertain the facts and determine from the
facts what were just and reasonable rates, and that in vesting the commission with
such power was not a delegation of legislative power.
The Wisconsin case was a civil action founded upon a "Wisconsin standard policy
of re insurance," and the court held that "the act, . . . wholly fails to provide de nitely
and clearly what the standard policy should contain, so that it could be put in use as a
uniform policy required to take the place of all others, without the determination of the
insurance commissioner in respect to matters involving the exercise of a legislative
discretion that could not be delegated.''
The case of the United States Supreme Court, supra, dealt with rules and
regulations which were promulgated by the Secretary of Agriculture for Government
land in the forest reserve. These hold that the legislature only can enact a law, and that
it cannot delegate its legislative authority.
The line of cleavage between what is and what is not a delegation of legislative
power is pointed out and clearly defined. As the Supreme Court of Wisconsin says:
"That no part of the legislative power can be delegated by the legislature to
any other department of the government, executive or judicial, is a fundamental
principle in constitutional law, essential to the integrity and maintenance of the
system of government established by the constitution.
"Where an act is clothed with all the forms of law, and is complete in and
of itself, it may be provided that it shall become operative only upon some certain
act or event, or, in like manner, that its operation shall be suspended.
The legislature cannot delegate its power to make a law, but it can make a
law to delegate a power to determine some fact or state of things upon which the
law makes, or intends to make, its own action to depend."
"All saloons in said village shall be closed at 11 o'clock P. M. each day and remain
closed until 5 o'clock on the following morning, unless by special permission of the
president."
Construing it in 136 Wis., 526 128 A. S. R., 1100, 1 the Supreme Court of that
State says:
"We regard the ordinance as void for two reasons: First, because it
attempts to confer arbitrary power upon an executive officer, and allows him, in
executing the ordinance, to make unjust and groundless discriminations among
persons similarly situated; second, because the power to regulate saloons is a
law-making power vested in the village board, which cannot be delegated. A
legislative body cannot delegate to a mere administrative officer power to make a
law, but it can make a law with provisions that it shall go into effect or be
suspended in its operation upon the ascertainment of a fact or state of facts by
an administrative of board. In the present case the ordinance by its terms gives
power to the president to decide arbitrarily, and in the exercise of his own
discretion, when a saloon shall close. This is an attempt to vest legislative
discretion in him, and cannot be sustained."
The legal principle involved there is squarely in point here.
It must conceded that, after the passage of Act No. 2868, and before any rules
and regulations were promulgated by the Governor-General, a dealer in rice could sell it
at any price, even at a peso per "Janet," and that he would not commit a crime, because
there would be no law xing the price of rice, and the sale of it at any price would not be
a crime. That is to say, in the absence of a proclamation, it was not a crime to sell rice
at any price. Hence, it must follow that, if the defendant committed a crime, it was
because the Governor-General issued the proclamation. There was no act of the
Legislature making it a crime to sell rice at any price, and without the proclamation, the
sale of it at any price was not crime.
The Executive Order 1 provides"
(5) The maximum selling price of palay, rice or corn is hereby xed, for the
time being as follows:
"In Manila —
"Palay at P6.75 per sack of 1/2 kilos, or 29 centavos per Janet.
"Rice at P15 per sack of 57 1/2 kilos, or 63 centavos per Janet.
"Corn at P8 per sack of 57 1/2 kilos, or 34 centavos per Janet.
"In the provinces producing palay, rice and corn, the maximum price shall
be the Manila price less the cost of transportation from the source of supply and
necessary handling expenses to the place of sale, to be determined by the
provincial treasures or their deputies.
"In provinces, obtaining their supplies from Manila or other producing
provinces, the maximum price shall be the authorized price at the place of supply
or the Manila price as the case may be, plus the transportation cost, from the
place of supply and the necessary handling expenses, to the place of sale, to be
determined by the provincial treasurers or their deputies.
"(6) Provincial treasurers and their deputies are hereby directed to
communicate with, and execute all instructions emanating from the Director of
Commerce and Industry, for the most effective and proper enforcement of the
above regulations in their respective localities,"
The law says that the Governor-General may x "the maximum sale price that
industrial or merchant may demand." The law is a general law and not a local or special
law.
The proclamation undertakes to x one price for rice in Manila and other and
different prices in other and different provinces in the Philippines Islands, and
delegates the power to determine the other and different prices to provincial treasurers
and their deputies. Here, then, you would have a delegation of legislative power to the
Governor-General, and a delegation by him of that power to provincial treasurers and
their deputies, who "are hereby directed to communicate with, and executive all
instructions emanating from the Director of Commerce and Industry, for the most
effective and proper enforcement of the above regulations in their respective localities."
The issuance of the proclamation by the Governor-General was the exercise of the
power delegation of a power, and was even a subdelegation of that power.
Assuming that it is valid, Act No. 2868 is a general law and does not authorize the
Governor-General to x one price of rice in Manila and another price in Iloilo. It only
purports to authorize him x the price of rice in the Philippine Islands under a law, which
is general and uniform, and not local or special. Under the terms of the law, the price of
rice xed in the proclamation must be the same all over the Islands. There cannot be
one price at Manila and another at Iloilo. Again, it is a matter of common knowledge,
and of which this court will take judicial notice, that there are many kinds of rice with
different and corresponding market values, and that there is a wide range in the price,
which varies with grade and quality. Act No. 2868 makes no distinction in price for the
grade quality of the rice, and the proclamation, upon which the defendant was tried and
convicted, xes the selling price of rice in Manila "at P15 per sack of 57 1/2 kilos, or 63
centavo per Janet," and is uniform as to all grades of rice, and says nothing about grade
or quality. Again, it will be noted that the law is con ned to palay, rice and corn. They are
products of the Philippine Islands. Hemp, tobacco, coconut, chickens, eggs, and many
other things are also products. Any law which singles out palay, rice or corn from the
numerous, but is a local or special law. If such a law is valid, then by the same principle,
the Governor-General could be authorized by proclamation to x the price of meat,
eggs chickens, coconut, hemp, and tobacco, or any other of the Islands. In the very
nature of things, all of that class of laws should be general and uniform. Otherwise,
there would be an unjust discrimination of property rights, which, under the law, must
be equal and uniform. Act No. 2868 is nothing more than a oating law, which, in the
discretion and by a proclamation of the Governor-General, makes it a oating crime to
sell rice at a price in excess of the proclamation, without regard to grade or quality.
When Act No. 2868 is analyzed, it is the violation of the proclamation of the
Governor-General which constitutes the crime. Without that proclamation, it was no
crime to sell rice at any price. In other words, the Legislature left it to the sole discretion
of the Governor-General to say what was and what was not "any cause" for enforcing
the act, and what was and what was not "an extraordinary rise in the price of palay, rice
or corn," and under certain unde ned conditions to x the price at which rice should be
sold, without regard to grade or quality, also to say whether a proclamation should be
issued, if so, when, and whether or not the law should be enforced, how long it should
be enforced, and when the law should be suspended. The Legislature did not specify or
define what was "any cause," or what was "an extraordinary rise in the price of rice, palay
or corn." Neither did it specify or de ne the conditions upon which the proclamation
should be issued. In the absence of the proclamation no crime was committed. The
alleged sale was made a crime, if at all, because the Governor-General issued the
proclamation. The act or proclamation does not say anything about the different
grades or qualities of rice, and the defendant is charged with the sale" of one Janet of
rice at the price of eighty centavos (P0.80) which is a price greater than xed by
Executive Order No. 53."
We are clearly of the opinion and hold that Act No. 2868 in so far as it undertakes
to authorize the Governor-General in his discretion to issue a proclamation, xing the
price of rice, and to make the sale of rice in violation of the proclamation a crime, is
unconstitutional and void.
It may be urged that there was an extraordinary rise in the price of rice and
pro teering, which worked a severe hardship, on the poorer classes, and that an
emergency existed, but the question here presented is the constitutionality of a
particular portion of a statute, and none of such matters is an argument for, or against,
its constitutionality.
The Constitution is something solid, permanent and substantial. Its stability
protects the life, liberty and property rights of the rich and the poor alike, and that
protection ought not to change with the wind or any emergency condition. The
fundamental question involved in this case is the right of the people of the Philippine
Islands to be and live under a republican form of government. We make the board
statement that no state or nation, living under a republican form of government, under
the terms and conditions speci ed in Act No. 2868, has ever enacted a law delegating
the power to any one, to x the price at which rice should be sold. That power can never
be delegated under a republican form of government.
In the xing of the price at which the defendant should sell his rice, the law was
not dealing with government property. It was dealing with private property and private
rights, which are sacred under the Constitution. If this law should be sustained, upon
the same principle and for the same reason, the Legislature could authorize the
Governor-General to x the price of every product or commodity in the Philippine
Islands, and empower him to make it a crime to sell any product at any other or
different price.
It may be said that this was a war measure, and that for such reason the
provision of the Constitution should be suspended. But the stubborn fact remains that
at all times the judicial power was in full force and effect, and that while that power was
in force and effect, such a provision of the Constitution could not be, and was not,
suspended even in times of war. It may be claimed that during the war, the United
States Government undertook to, and did, x the price at which wheat and our should
be bought and sold, and that is true. There, the United States had declared war, and at
the time was at war with other nations, and it was a war measure, but it is also true that
in doing so, and as a part of the same act, the United States commandeered all the
wheat and our, and took possession of it, either or constructive, and the government
itself became the owner of the wheat and our, and xed the price to be paid for it. That
is not case. Here, the rice sold was the personal and private property of the defendant,
who sold it to one of his customers. The government had not bought and did not claim
to own the rice, or have any interest in it. and at the time of the alleged sale, it was the
personal, private property of the defendant. It may be that the law was passed in the
interest of the public, but the members of this court have taken a solemn oath to
uphold and defend the Constitution, and it ought not to be construed to meet the
changing winds or emergency conditions. Again we say that no state or nation under a
republican form of government ever enacted a law authorizing any executive, under the
conditions stated, to x the price at which a private person would sell his own rice, and
make the broad statement that no decision of any court, on principle or by analogy. will
ever be found which sustains the constitutionality of that particular portion of Act No.
2868 here in question. By the terms of the Organic Act, subject only to constitutional
limitations, the power Legislature, which is elated by a direct vote of the people of the
Philippine Island. As to the question here involved, the authority of the Governor-General
to x the maximum price at which palay, rice and corn may be sold in the manner and
under the conditions stated is a delegation of legislative power in violation of the
organic law.
This opinion is con ned to the particular question here involved, which is the right
of the Governor-General, upon the terms and conditions stated in the Act, to x the
price of rice and make it a crime to sell it at a higher price, and which holds that portion
of the Act unconstitutional. It does not decide or undertake to construe the
constitutionality of any of the remaining of the Act.
The judgment of the lower court is reversed, and the defendant discharged. So
ordered.
Araullo, C. J., Johnson, Street, and Ostrand, JJ., concur.
Romualdez, J., concurs in the result.
Separate Opinions
MALCOLM , J., with whom concur AVANCENA and VILLAMOR JJ., concurring :
I concur in the result for reasons which reach both the facts and the law. In the
rst place, as to the facts, — one cannot be convicted ex post facto of a violation of a
law and of an executive order issued pursuant to the law, when the alleged violation
thereof occurred on August 6, 1919, while the Act of the Legislature in question was not
published until August 13, 1919, and the order was not published until August 20,1919.
In the second place, as to the law, — one cannot be convicted of a violation of a law or
an order issued pursuant to the law when both the law and the order fail to set up an
ascertainable standard of guilt. (U. S. vs Cohen Grocery Company [1921], 255 U. S., 81,
holding section 4 of the Federal Food Control Act of August 10, 1917, as amended,
invalid.)
In order that there may not be any misunderstanding of our position, I would
respectfully invite attention to the decision of the United States Supreme Court in
German Alliance Ins. Co. vs. Lewis [1914, 233 U. S., 389), concerning the legislative
regulation of the prices charged by businesses affected with a public interest, and to
another decision of the United States Supreme Court, that of Marshall Field & Co. vs.
Clark [1892] U. S., 649], which adopts as its own the principle laid down in the case of
Locke's Appeal [1873], 72 Pa. St., 491). namely: "The Legislature cannot delegate its
power to make a law: but it can make a law to delegate a power to determine some
fact or state of things upon which the law makes or intends to make, its own action
depend. To deny this would be to stop the wheels of government. There are many
things upon which wise and useful legislation must depend which cannot be know to
law-making power, and must, therefore, be a subject of inquiry and determination
outside of the halls legislation.
Footnotes
1. Village of Little Chute vs. Van Camp.
1. Executive Order No. 53, series of 1919.

EN BANC
[G.R. No. 74457. March 20, 1987.]
RESTITUTO YNOT , petitioner, vs. INTERMEDIATE APPELLATE COURT, THE

STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC
NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL
INDUSTRY, REGION IV, ILOILO CITY , respondents.
Ramon A. Gonzales for petitioner.
DECISION
CRUZ , J : p
The essence of due process is distilled in the immortal cry of Themistocles to

Alcibiades: "Strike — but hear me rst!'" It is this cry that the petitioner in effect repeats
here as he challenges the constitutionality of Executive Order No. 626-A. Cdpr
The said executive order reads in full as follows:

"WHEREAS, the President has given orders prohibiting the interprovincial
movement of carabaos and the slaughtering of carabaos not complying with the
requirements of Executive Order No. 626 particularly with respect to age;
"WHEREAS, it has been observed that despite such orders the violators still
manage to circumvent the prohibition against interprovincial movement of
carabaos by transporting carabeef instead; and.
"WHEREAS, in order to achieve the purposes and objectives of Executive Order No.
626 and the prohibition against interprovincial movement of carabaos, it is
necessary to strengthen the said Executive Order and provide for the disposition
of the carabaos and carabeef subject of the violation;.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested in me by the Constitution, do hereby promulgate the
following:
"SECTION 1. Executive Order No. 626 is hereby amended such that

henceforth, no carabao regardless of age, sex, physical condition or purpose and
no carabeef shall be transported from one province to another. The carabao or
carabeef transported in violation of this Executive Order as amended shall be
subject to con scation and forfeiture by the government, to be distributed to
charitable institutions and other similar institutions as the Chairman of the
National Meat Inspection Commission may see t, in the case of carabeef, and to
deserving farmers through dispersal as the Director of Animal Industry may see
fit, in the case of carabaos.
"SECTION 2. This Executive Order shall take effect immediately.

"Done in the City of Manila, this 25th day of October, in the year of Our Lord,
nineteen hundred and eighty.
(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines"
The petitioner had transported six carabaos in a pump boat from Masbate to
Iloilo on January 13, 1984, when they were con scated by the police station
commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The
petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of
replevin upon his ling of a supersedeas bond of P12,000.00. After considering the
merits of the case, the court sustained the con scation of the carabaos and, since they
could no longer be produced, ordered the con scation of the bond. The court also
declined to rule on the constitutionality of the executive order, as raised by the
petitioner, for lack of authority and also for its presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate Court, * 3
which upheld the trial court, ** and he has now come before us in this petition for review
on certiorari. prcd
The thrust of his petition is that the executive order is unconstitutional insofar as
it authorizes outright con scation of the carabao or carabeef being transported across
provincial boundaries. His claim is that the penalty is invalid because it is imposed
without according the owner a right to be heard before a competent and impartial court
as guaranteed by due process. He complains that the measure should not have been
presumed, and so sustained, as constitutional. There is also a challenge to the
improper exercise of the legislative power by the former President under Amendment
No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v. Angeles 5 is
not applicable here. The question raised there was the necessity of the previous
publication of the measure in the O cial Gazette before it could be considered
enforceable. We imposed the requirement then on the basis of due process of law. In
doing so, however, this Court did not, as contended by the Solicitor General, impliedly
a rm the constitutionality of Executive Order No. 626-A. That is an entirely different
matter.
This Court has declared that while lower courts should observe a becoming
modesty in examining constitutional questions, they are nonetheless not prevented
from resolving the same whenever warranted, subject only to review by the highest
tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify
or a rm on appeal or certiorari, as the law or rules of court may provide," nal
judgments and orders of lower courts in, among others, all cases involving the
constitutionality of certain measures. 7 This simply means that the resolution of such
cases may be made in the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that presumption
is not by any means conclusive and in fact may be rebutted. Indeed, if there be a clear
showing of their invalidity, and of the need to declare them so, then "will be the time to
make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated
otherwise, courts should not follow the path of least resistance by simply presuming
the constitutionality of a law when it is questioned. On the contrary, they should probe
the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist,
9 and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should
be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or
any other similar inhibition unworthy of the bench, especially this Court. LLjur
The challenged measure is denominated an executive order but it is really

presidential decree, promulgating a new rule instead of merely implementing an
existing law. It was issued by President Marcos not for the purpose of taking care that
the laws were faithfully executed but in the exercise of his legislative authority under
Amendment No. 6. It was provided thereunder that whenever in his judgment there
existed a grave emergency or a threat or imminence thereof or whenever the legislature
failed or was unable to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue decrees, orders or
letters of instruction that were to have the force and effect of law. As there is no
showing of any exigency to justify the exercise of that extraordinary power then, the
petitioner has reason, indeed, to question the validity of the executive order.
Nevertheless, since the determination of the grounds was supposed to have been
made by the President "in his judgment," a phrase that will lead to protracted
discussion not really necessary at this time, we reserve resolution of this matter until a
more appropriate occasion. For the nonce, we con ne ourselves to the more
fundamental question of due process.
It is part of the art of constitution-making that the provisions of the charter be
cast in precise and unmistakable language to avoid controversies that might arise on
their correct interpretation. That is the ideal. In the case of the due process clause,
however, this rule was deliberately not followed and the wording was purposely kept
ambiguous. In fact, a proposal to delineate it more clearly was submitted in the
Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel,
Chairman of the Committee on the Pill of Rights, who forcefully argued against it. He
was sustained by the body. 1 0
The due process clause was kept intentionally vague so it would remain also
conveniently resilient. This was felt necessary because due process is not, like some
provisions of the fundamental law, an "iron rule" laying down an implacable and
immutable command for all seasons and all persons. Flexibility must be the best virtue
of the guaranty. The very elasticity of the due process clause was meant to make it
adapt easily to every situation, enlarging or constricting its protection as the changing
times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own speci c
description of due process lest they con ne themselves in a legal straitjacket that will
deprive them of the elbow room they may need to vary the meaning of the clause
whenever indicated. Instead, they have preferred to leave the import of the protection
open-ended, as it were, to be "gradually ascertained by the process of inclusion and
exclusion in the course of the decision of cases as they arise." 1 1 Thus, Justice Felix
Frankfurter of the U.S. Supreme Court, for example, would go no farther than to de ne
due process - and in so doing sums it all up — as nothing more and nothing less than
"the embodiment of the sporting idea of fair play." 1 2
When the barons of England extracted from their sovereign liege the reluctant
promise that that Crown would thenceforth not proceed against the life, liberty or
property of any of its subjects except by the lawful judgment of his peers or the law of
the land, they thereby won for themselves and their progeny that splendid guaranty of
fairness that is now the hallmark of the free society. The solemn vow that King John
made at Runnymede in 1215 has since then resounded through the ages, as a ringing
reminder to all rulers, benevolent or base, that every person, when confronted by the
stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.
prLL
The closed mind has no place in the open society. It is part of the sporting idea
of fair play to hear "the other side" before an opinion is formed or a decision is made by
those who sit in judgment. Obviously, one side is only one-half of the question; the other
half must also be considered if an impartial verdict is to be reached based on an
informed appreciation of the issues in contention. It is indispensable that the two sides
complement each other, as unto the bow the arrow, in leading to the correct ruling after
examination of the problem not from one or the other perspective only but in its totality.
A judgment based on less that this full appraisal, on the pretext that a hearing is
unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or
worst of all, in repressive regimes, the insolence of power.
The minimum requirements of due process are notice and hearing 1 3 which,
generally speaking, may not be dispensed with because they are intended as a
safeguard against o cial arbitrariness. It is a gratifying commentary on our judicial
system that the jurisprudence of this country is rich with applications of this guaranty
as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have
consistently declared that every person, faced by the awesome power of the State, is
entitled to "the law of the land," which Daniel Webster described almost two hundred
years ago in the famous Dartmouth College Case, 1 4 as "the law which hears before it
condemns, which proceeds upon inquiry and renders judgment only after trial." It has to
be so if the rights of every person are to be secured beyond the reach of o cials who,
out of mistaken zeal or plain arrogance, would degrade the due process clause into a
worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be
sure, there are a number of admitted exceptions. The conclusive presumption, for
example, bars the admission of contrary evidence as long as such presumption is
based on human experience or there is a rational connection between the fact proved
and the fact ultimately presumed therefrom. 1 5 There are instances when the need for
expeditious action will justify omission of these requisites, as in the summary
abatement of a nuisance per se, like a mad dog on the loose, which may be killed on
sight because of the immediate danger it poses to the safety and lives of the people.
Pornographic materials, contaminated meat and narcotic drugs are inherently
pernicious and may be summarily destroyed. The passport of a person sought for a
criminal offense may be cancelled without hearing, to compel his return to the country
he has ed. 1 6 Filthy restaurants may be summarily padlocked in the interest of the
public health and bawdy houses to protect the public morals. 1 7 In such instances,
previous judicial hearing may be omitted without violation of due process in view of the
nature of the property involved or the urgency of the need to protect the general welfare
from a clear and present danger. cdll
The protection of the general welfare is the particular function of the police
power which both restraints and is restrained by due process. The police power is
simply de ned as the power inherent in the State to regulate liberty and property for the
promotion of the general welfare. 1 8 By reason of its function, it extends to all the great
public needs and is described as the most pervasive, the least limitable and the most
demanding of the three inherent powers of the State, far outpacing taxation and
eminent domain. The individual, as a member of society, is hemmed in by the police
power, which affects him even before he is born and follows him still after he is dead —
from the womb to beyond the tomb — in practically everything he does or owns. Its
reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as
long as the activity or the property has some relevance to the public welfare, its
regulation under the police power is not only proper but necessary. And the justi cation
is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo
ut alienum non laedas, which call for the subordination of individual interests to the
benefit of the greater number.
It is this power that is now invoked by the government to justify Executive Order
No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the slaughter
of carabaos except under certain conditions. The original measure was issued for the
reason, as expressed in one of its Whereases, that "present conditions demand that the
carabaos and the buffaloes be conserved for the bene t of the small farmers who rely
on them for energy needs." We a rm at the outset the need for such a measure. In the
face of the worsening energy crisis and the increased dependence of our farms on
these traditional beasts of burden, the government would have been remiss, indeed, if it
had not taken steps to protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 1 9 where a law
regulating the registration, branding and slaughter of large cattle was claimed to be a
deprivation of property without due process of law. The defendant had been convicted
thereunder for having slaughtered his own carabao without the required permit, and he
appealed to the Supreme Court. The conviction was a rmed. The law was sustained as
a valid police measure to prevent the indiscriminate killing of carabaos, which were then
badly needed by farmers. An epidemic had stricken many of these animals and the
reduction of their number had resulted in an acute decline in agricultural output, which
in turn had caused an incipient famine. Furthermore, because of the scarcity of the
animals and the consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the registration and branding of
these animals. The Court held that the questioned statute was a valid exercise of the
police power and declared in part as follows:
"To justify the State in thus interposing its authority in behalf of the public, it must
appear, rst, that the interests of the public generally, as distinguished from those
of a particular class, require such interference; and second, that the means are
reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. . . .
"From what has been said, we think it is clear that the enactment of the provisions
of the statute under consideration was required by `the interests of the public
generally, as distinguished from those of a particular class' and that the
prohibition of the slaughter of carabaos for human consumption, so long as
these animals are t for agricultural work or draft purposes was a 'reasonably
necessary' limitation on private ownership, to protect the community from the
loss of the services of such animals by their slaughter by improvident owners,
tempted either by greed of momentary gain, or by a desire to enjoy the luxury of
animal food, even when by so doing the productive power of the community may
be measurably and dangerously affected."
In the light of the tests mentioned above, we hold with the Toribio Case that the
carabao, as the poor man's tractor, so to speak, has a direct relevance to the public
welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the
basic measure is also reasonably necessary for the purpose sought to be achieved and
not unduly oppressive upon individuals, again following the above-cited doctrine. There
is no doubt that by banning the slaughter of these animals except where they are at
least seven years old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still t for farm work or
breeding and preventing their improvident depletion. llcd
But while conceding that the amendatory measure has the same lawful subject
as the original executive order, we cannot say with equal certainty that it complies with
the second requirement, viz., that there be a lawful method. We note that to strengthen
the original measure, Executive Order No. 626-A imposes an absolute ban not on the
slaughter of the carabaos but on their movement, providing that "no carabao regardless
of age, sex, physical condition or purpose (sic) and no carabeef shall be transported
from one province to another." The object of the prohibition escapes us. The
reasonable connection between the means employed and the purpose sought to be
achieved by the questioned measure is missing.
We do not see how the prohibition of the interprovincial transport of carabaos
can prevent their indiscriminate slaughter, considering that they can be killed anywhere,
with no less di culty in one province than in another. Obviously, retaining the carabaos
in one province will not prevent their slaughter there, any more than moving them to
another province will make it easier to kill them there. As for the carabeef, the
prohibition is made to apply to it as otherwise, so says executive order, it could be
easily circumvented by simply killing the animal. Perhaps so. However, if the movement
of the live animals for the purpose of preventing their slaughter cannot be prohibited, it
should follow that there is no reason either to prohibit their transfer as, not to be
flippant, dead meat.
Even if a reasonable relation between the means and the end were to be
assumed, we would still have to reckon with the sanction that the measure applies for
violation of the prohibition. The penalty is outright con scation of the carabao or
carabeef being transported, to be meted out by the executive authorities, usually the
police only. In the Toribio Case, the statute was sustained because the penalty
prescribed was ne and imprisonment, to be imposed by the court after trial and
conviction of the accused. Under the challenged measure, signi cantly, no such trial is
prescribed, and the property being transported is immediately impounded by the police
and declared, by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily con scated by the police
station commander, were returned to the petitioner only after he had led a complaint
for recovery and given a supersedeas bond of P12,000.00, which was ordered
con scated upon his failure to produce the carabaos when ordered by the trial court.
The executive order de ned the prohibition, convicted the petitioner and immediately
imposed punishment, which was carried out forthright. The measure struck at once and
pounced upon the petitioner without giving him a chance to be heard, thus denying him
the centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice and hearing
may be validly dispensed with notwithstanding the usual requirement for these
minimum guarantees of due process. It is also conceded that summary action may be
validly taken in administrative proceedings as procedural due process is not
necessarily judicial only. 2 0 In the exceptional cases accepted, however, there is a
justi cation for the omission of the right to a previous hearing, to wit, the immediacy of
the problem sought to be corrected and the urgency of the need to correct it. cdphil
In the case before us, there was no such pressure of time or action calling for the
petitioner's peremptory treatment. The properties involved were not even inimical per
se as to require their instant destruction. There certainly was no reason why the offense
prohibited by the executive order should not have been proved rst in a court of justice,
with the accused being accorded all the rights safeguarded to him under the
Constitution. Considering that, as we held in Pesigan v. Angeles, 2 1 Executive Order No.
626-A is penal in nature, the violation thereof should have been pronounced not by the
police only but by a court of justice, which alone would have had the authority to impose
the prescribed penalty, and only after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the
con scated property as prescribed in the questioned executive order. It is there
authorized that the seized property shall "be distributed to charitable institutions and
other similar institutions as the Chairman of the National Meat Inspection Commission
may see t , in the case of carabeef, and to deserving farmers through dispersal as the
Director of Animal Industry may see t , in the case of carabaos." (Emphasis supplied.)
The phrase "may see fit" is an extremely generous and dangerous condition, if condition
it is. It is laden with perilous opportunities for partiality and abuse, and even corruption.
One searches in vain for the usual standard and the reasonable guidelines, or better still,
the limitations that the said o cers must observe when they make their distribution.
There is none. Their options are apparently boundless. Who shall be the fortunate
bene ciaries of their generosity and by what criteria shall they be chosen? Only the
o cers named can supply the answer, they and they alone may choose the grantee as
they see t, and in their own exclusive discretion. De nitely, there is here a "roving
commission," a wide and sweeping authority that is not "canalized within banks that
keep it from over owing," in short, a clearly pro igate and therefore invalid delegation
of legislative powers.
To sum up then, we nd that the challenged measure is an invalid exercise of the
police power because the method employed to conserve the carabaos is not
reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due
process is violated because the owner of the property confiscated is denied the right to
be heard in his defense and is immediately condemned and punished. The conferment
on the administrative authorities of the power to adjudge the guilt of the supposed
offender is a clear encroachment on judicial functions and militates against the
doctrine of separation of powers. There is, nally, also an invalid delegation of
legislative powers to the o cers mentioned therein who are granted unlimited
discretion in the distribution of the properties arbitrarily taken. For these reasons, we
hereby declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander
who con scated the petitioner's carabaos is not liable in damages for enforcing the
executive order in accordance with its mandate. The law was at that time presumptively
valid, and it was his obligation, as a member of the police, to enforce it. It would have
been impertinent of him, being a mere subordinate of the President, to declare the
executive order unconstitutional and, on his own responsibility alone, refuse to execute
it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had the
competence, for all their superior authority, to question the order we now annul.
The Court notes that if the petitioner had not seen t to assert and protect his
rights as he saw them, this case would never have reached us and the taking of his
property under the challenged measure would have become a fait accompli despite its
invalidity. We commend him for his spirit. Without the present challenge, the matter
would have ended in that pump boat in Masbate and another violation of the
Constitution, for all its obviousness, would have been perpetrated, allowed without
protest, and soon forgotten in the limbo of relinquished rights. LLpr

The strength of democracy lies not in the rights it guarantees but in the courage
of the people to invoke them whenever they are ignored or violated. Rights are but
weapons on the wall if, like expensive tapestry, all they do is embellish and impress.
Rights, as weapons, must be a promise of protection. They become truly meaningful,
and ful ll the role assigned to them in the free society, if they are kept bright and sharp
with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional.
Except as a rmed above, the decision of the Court of Appeals is reversed. The
supersedeas bond is cancelled and the amount thereof is ordered restored to the
petitioner. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla,
Bidin, Sarmiento and Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., on leave.
Footnotes
1. Rollo, pp. 7, 28, 29, 34.

2. Ibid., pp. 6-7; Annex B.
* Justices Coquia, Bartolome and Ejercito.
3. Rollo, pp. 6, 27, 33.
** Judge Bethel Katalbas-Moscardon.

4. Ibid., pp. 10; 11, 14-16, 76.
5. 129 SCRA 174.
6. Espiritu vs. Fugoso, 81 Phil. 637.
7. Sec. 5[2(a)], Art. X, 1973 Constitution; Sec. 5[2(a)], Art. VIII, 1987 Constitution.
8. J. Laurel, concurring opinion, Zandueta v. dela Costa, 66 Phil. 615, 627.

9. US v. Bustos, 37 Phil. 731.
10. I Aruego, The Framing of the Constitution (1936), pp. 153-159.
11. Twinning vs. New Jersey, 211 U.S. 78.
12. Frankfurter, Mr. Justice Holmes and the Supreme Court, pp. 32-33.
13. David vs. Aquilizan, 94 SCRA 707; Montemayor vs. Araneta Univ. Foundation, 77 SCRA
321; Fontelera v. Amores n , 70 SCRA 37; Flores vs. Buencamino, 74 SCRA 332; DBP vs.
Bautista, 26 SCRA 366; Ong Su Han vs. Gutierrez David, 76 Phil. 546; Banco-Español-
Filipino vs. Palanca, 37 Phil. 921.
14. Dartmouth College vs. Woodward, 4 Wheaton 518.
15. Manley v. Georgia, 279 U.S. 1; 1 Cooley 639.
16. Suntay vs. People, 101 Phil. 833.
17. 12 C.J. 1224.

18. People v. Vera Reyes, 67 Phil. 190; Ermita-Malate Hotel & Motel Operators Ass. v. City
Mayor, 20 SCRA 849; Primicias v. Fugoso, 80 Phil. 75; U.S. v. Ling Su Tan, 10 Phil. 114;
Collins v. Wolfe, 5 Phil. 297; U.S. v. Gomez Jesus, 31 Phil. 225; Churchill v. Rafferty, 32
Phil. 603.
19. 15 Phil. 85.
20. New Filipino Maritime Agencies, Inc. vs. Rivera, 83 SCRA 602; Gas Corp. of the Phil. vs.
Inciong, 93 SCRA 653.
21. supra.
n Note from the Publisher: Written as “Lentelera vs. Amores” in the original document.

EN BANC
[G.R. No. L-23825. December 24, 1965.]
EMMANUEL PELAEZ , petitioner, vs. THE AUDITOR GENERAL ,

respondent.
Zulueta, Gonzales, Paculdo & Associates for petitioner.

Solicitor General for respondent.
SYLLABUS
1.ADMINISTRATIVE LAW; POWER OF PRESIDENT TO CREATE MUNICIPALITIES. — Since

January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be
created or their boundaries altered nor their names changed" except by Act of Congress or
of the corresponding provincial board "upon petition of a majority of the voters in the areas
affected" and the "recommendation of the council of the municipality or municipalities in
which the proposed barrio is situated." This statutory denial of the presidential authority to
create a new barrio implies a negation of the bigger power to create municipalities, each of
which consists of several barrios.
2.ID.; ID.; NATURE OF POWER TO CREATE MUNICIPALITIES. — Whereas the power to x a
common boundary, in order to avoid or settle con icts of jurisdiction between adjoining
municipalities, may partake of an administrative nature — involving, as it does, the adoption
of means and ways to carry into effect the law creating said municipalities — the authority
to create municipal corporations is essentially legislative in nature.
3.ID.; ID.; ID.; REQUISITES FOR VALID DELEGATION OF POWER. — Although Congress may
delegate to another branch of the Government the power to ll in the details in the
execution, enforcement or administration of a law, it is essential that said law: (a) be
complete in itself, setting forth therein the policy to be executed, carried out or
implemented by the delegate; and (b) x a standard - the limits of which are su ciently
determinate or determinable to which the delegate must conform in the performance of
his functions.
4.ID.; ID.; ID.; ID.; REQUIREMENTS OF DUE DELEGATION OF POWER NOT MET BY SECTION
68 OF REVISED ADMINISTRATIVE CODE. — Section 68 of the Revised Administrative Code,
insofar as it grants to the President the power to create municipalities, does not meet the
well-settled requirements for a valid delegation of the power to x the details in the
enforcement of a law. It does not enunciate any policy to be carried out or implemented by
the President.
5.ID.; ID.; ID.; ID.; ID.; ABDICATION OF POWERS OF CONGRESS IN FAVOR OF THE
EXECUTIVE. — If the validity of said delegation of powers, made in Section 68 of the
Revised Administrative Code, were upheld, there would no longer be any legal impediment
to a statutory grant of authority to the President to do anything which, in his opinion, may
be required by public welfare or public interest. Such grant of authority would be a virtual
abdication of the powers of Congress in favor of the Executive, and would bring about a
total collapse of the democratic system established by the Constitution.
6.ID.; ID.; ID.; NATURE OF POWERS DEALT WITH IN SECTION 68 OF THE REVISED
ADMINISTRATIVE CODE. — It is true that in Calalang vs. Williams (70 Phil., 726) and People
vs. Rosenthal (68 Phil., 328), this Court had upheld "public welfare" and "public interest,"
respectively, as su cient standards, for a valid delegation of the authority to execute the
law. But the doctrine laid down in these cases must be construed in relation to the speci c
facts and issues involved therein, outside of which they do not constitute precedents and
have no binding effect. Both cases involved grants to administrative o cers of powers
related to the exercise of their administrative functions, calling for the determination of
questions of fact. Such is not the nature of the powers dealt with in Section 68 of the
Revised Administrative Code. The creation of municipalities being essentially and
eminently legislative in character, the question whether or not "public interest" demands
the exercise of such power is not one of fact. It is purely a legislative question (Carolina-
Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 21., 310-313, 315-318), or
a political question (Udall vs. Severn, 79 p. 2d., 347-349).
7.ID.; ID., ID.; ID.; PROOF THAT ISSUANCE OF EXECUTIVE ORDERS IN QUESTION ENTAILS
EXERCISE OF PURELY LEGISLATIVE FUNCTIONS. — The fact that Executive Orders Nos.
93 to 121, 124 and 126 to 129, creating thirty-three municipalities, were issued after the
legislative bills for the creation of the said municipalities had failed to pass Congress, is
the best proof that their issuance entails the exercise of purely legislative functions.
8.ID.; ID.; ID.; POWER OF CONTROL OVER LOCAL GOVERNMENTS. — The power of control
under Section 10(a) of Article X of the Constitution implies the right of the President to
interfere in the exercise of such discretion as may be vested by law in the o cers of the
executive departments, bureaus or o ces of the national government, as well as to act in
lieu of such o cers. This power is denied by the Constitution to the Executive, insofar as
local governments are concerned. With respect to the latter, the fundamental law permits
him to wield no more authority than that of checking whether said local governments or
the o cers thereof perform their duties as provided by statutory enactments. Hence, the
President cannot interfere with local governments, so long as the same or its o cers act
within the scope of their authority. He may not, for instance, suspend an elective o cial of
a regular municipality or take any disciplinary action against him, except on appeal from a
decision of the corresponding provincial board. If, on the other hand, the President could
create a municipality, he could, in effect, remove any of its o cials, by creating a new
municipality and including therein the barrio in which the o cial concerned resides, for his
o ce would thereby become vacant (Section 2179, Revised Administrative Code). Thus,
by merely brandishing the power to create a new municipality, without actually creating it,
he could compel local o cials to submit to his dictation, thereby, in effect, exercising over
them the power of control denied to him by the Constitution.
9.ID.; ID.; ID.; ID.; SECTION 68, REVISED ADMINISTRATIVE CODE, REPEALED BY THE
CONSTITUTION. — The power of control of the President over executive departments,
bureaus or o ces under Section 10 (a) of Article X of the Constitution implies no more
than the authority to assume directly the functions thereof or to interfere in the exercise of
discretion by its o cials. Manifestly, such control does not include the authority either to
abolish an executive department or bureau, or to create a new one. As a consequence, the
alleged power of the President to create municipal corporations would necessarily
connote the exercise by him of an authority even greater than that of control which he has
over the executive departments, bureaus or o ces. Instead of giving the President less
power over local governments than that vested in him over the executive departments,
bureaus or o ces, it reverses the process and does the exact opposite, by conferring
upon him more power over municipal corporations than that which he has over executive
departments, bureaus or o ces. Even if, therefore, it did not entail an undue delegation of
legislative powers, as it certainly does, said Section 68, as part of the Revised
Administrative Code, approved on March 10, 1917, must be deemed repealed by the
subsequent adoption of the Constitution in 1935, which is utterly incompatible and
inconsistent with said statutory enactment. (De los Santos vs. Mallare, 87 Phil., 289, 298-
299.)
10.ID. ID.; ID.; MUNICIPAL OFFICIALS CONCERNED DULY REPRESENTED IN PRESENT
CASE. — It is contended that not all the proper parties have been impleaded in the present
case. Su ce it to say that the records do not show, and the parties do not claim, that the
o cers of any of the municipalities concerned have been appointed or elected and have
assumed o ce. At any rate, the Solicitor-General, who has appeared on behalf of
respondent Auditor General, is the o cer authorized by law "to act and represent the
Government of the Philippines, its o cers and agents, in any o cial investigation,
proceeding or matter requiring the services of a lawyer" (Section 1661, Revised
Administrative Code), and, in connection with the creation of the municipalities involved in
this case, which involves a political, not proprietary functions, said local o cials, if any, are
mere agents or representatives of the national government. Their interest in the case has
accordingly been duly represented. (Mangubat vs. Osmeña Jr., G.R. No. L-12837, April 30,
1959; City of Cebu vs. Judge Piccio, G.R. Nos. L-13012 & L-14876, December 31, 1960.)
11.ID.; ID.; ACTION NOT PREMATURE. — The present action cannot be said to be
premature simply because respondent Auditor General has not yet acted on any of the
executive orders in question and has not intimated how he would act in connection
therewith. It is a matter of common knowledge that the President has for many years
issued executive orders creating municipal corporations and that the same have been
organized and are in actual operation, thus indicating, without peradventure of doubt, that
the expenditures incidental thereto have been sanctioned, approved or passed in audit by
the General Auditing O ce and its o cials. There is no reason to believe that respondent
would adopt a different policy as regards the new municipalities involved in this case, in
the absence of an allegation to such effect, and none has been made by him.
DECISION
CONCEPCION , J : p
During the period from September 4 to October 29, 1964 the President of the Philippines,
purporting to act pursuant to Section 68 of the Revised Administrative Code, issued
Executive Orders Nos. 93 to 121, 124 and 126 to 129, creating thirty-three (33)
municipalities enumerated in the margin. 1 Soon after the date last mentioned, or on
November 10, 1964, petitioner Emmanuel Pelaez, as Vice-President of the Philippines and
as taxpayer, instituted the present special civil action, for a writ of prohibition with
preliminary injunction, against the Auditor General, to restrain him, as well as his
representatives and agents, from passing in audit any expenditure of public funds in
implementation of said executive orders and/or any disbursement by said municipalities.
Petitioner alleges that said executive orders are null and void, upon the ground that said
Section 68 has been impliedly repealed by Republic Act 2370 and constitutes an undue
delegation of legislative power. Respondent maintains the contrary view and avers that the
present action is premature and that not all proper parties — referring to the officials of the
new political subdivisions in question — have been impleaded. Subsequently, the mayors of
several municipalities adversely affected by the aforementioned executive orders —
because the latter have taken away from the former the barrios composing the new
political subdivision — intervened in the case. Moreover, Attorneys Enrique M. Fernando
and Emma Quisumbing-Fernando were allowed to and did appear as amici curiae.
The third paragraph of Section 3 of Republic Act No. 2370, reads:
"Barrios shall not be created or their boundaries altered nor their
names changed except under the provisions of this Act or by Act of
Congress.
Pursuant to the first two (2) paragraphs of the same Section 3:

"All barrios existing at the time of the passage of this Act shall come
under the provisions hereof.
"Upon petition of a majority of the voters in the areas affected, a new
barrio may be created or the name of an existing one may be changed by the
provincial board of the province, upon recommendation of the council of the
municipality or municipalities in which the proposed barrio is situated. The
recommendation of the municipal council shall be embodied in a resolution
approved by at least two-thirds of the entire membership of the said council:
Provided, however, That no new barrio may be created if its population is
less than five hundred persons."
Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may
"not be created or their boundaries altered nor their names changed" except by Act of
Congress or of the corresponding provincial board "upon petition of a majority of the
voters in the areas affected" and the "recommendation of the council of the municipality or
municipalities in which the proposed barrio is situated." Petitioner argues, accordingly: "If
the President, under this new law, cannot even create a barrio, can he create a municipality
which is composed of several barrios, since barrios are units of municipalities?"
Respondent answers in the a rmative, upon the theory that a new municipality can be
created without creating new barrios, such as, by placing old barrios under the jurisdiction
of the new municipality. This theory overlooks, however, the main import of the petitioner's
argument, which is that the statutory denial of the presidential authority to create a new
barrio implies a negation of the bigger power to create municipalities, each of which
consists of several barrios. The cogency and force of this argument is too obvious to be
denied or even questioned. Founded upon logic and experience, it cannot be offset except
by a clear manifestation of the intent of Congress to the contrary, and no such
manifestation, subsequent to the passage of Republic Act No. 2370. has been brought to
our attention.
Moreover, section 68 of the Revised Administrative Code, upon which the disputed
executive orders are based, provides:
"The (Governor-General) President of the Philippines may by
executive order de ne the boundary, or boundaries, of any province, sub-
province, municipality, [township] municipal district or other political
subdivision, and increase or diminish the territory comprised therein, may
divide any province into one or more subprovinces, separate any political
division other than a province, into such portions as may be required, merge
any of such subdivisions or portions with another, name any new
subdivision so created, and may change the seat of government within any
subdivision to such place therein as the public welfare may require:
Provided, That the authorization of the (Philippine Legislature) Congress of
the Philippines shall rst be obtained whenever the boundary of any
province or subprovince is to be de ned or any province is to be divided into
one or more subprovinces. When action by the (Governor-General) President
of the Philippines in accordance herewith makes necessary a change of the
territory under the jurisdiction of any administrative o cer or any judicial
o cer, the (Governor-General) President of the Philippines, with the
recommendation and advice of the head of the Department having executive
control of such o cer, shall redistrict the territory of the several o cers
affected and assign such officers to the new districts so formed.
"Upon the changing of the limits of political divisions in pursuance of
the foregoing authority, an equitable distribution of the funds and
obligations of the divisions thereby affected shall be made in such manner
as may be recommended by the (Insular Auditor) Auditor General and
approved by the (Governor-General) President of the Philippines."
Respondent alleges that the power of the President to create municipalities under this
section does not amount to an undue delegation of legislative power, relying upon
Municipality of Cardona vs. Municipality of Binañgonan (36 Phil. 547), which, he claims, has
settled it. Such claim is untenable, for said case involved, not the creation of a new
municipality, but a mere transfer of territory — from an already existing municipality
(Cardona) to another municipality (Binañgonan), likewise, existing at the time of and prior
to said transfer (See Gov't of the P.I. ex rel.Municipality of Cardona vs. Municipality of
Binañgonan [34 Phil. 518, 519-520], — in consequence of the xing and de nition, pursuant
to Act No. 1748, of the common boundaries of two municipalities.
It is obvious, however, that, whereas the power to x such common boundary, in order to
avoid or settle con icts of jurisdiction between adjoining municipalities, may partake of an
administrative nature — involving, as it does, the adoption of means and ways to carry into
effect the law creating said municipalities — the authority to create municipal corporations
is essentially legislative in nature. In the language of other courts, it is "strictly a legislative
function" (State ex rel. Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or "solely and
exclusively the exercise of legislative power" (Udall vs. Severn, May 29, 1938, 79 P. 2d. 347-
349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs. Stewart,
February 13, 1890, 23 Pac. 405, 409), "municipal corporations are purely the creatures of
statutes."
Although 1 Congress may delegate to another branch of the government the power to ll in
the details in the execution, enforcement or administration of a law, it is essential, to
forestall a violation of the principle of separation of powers, that said law: (a) be complete
in itself — it must set forth therein the policy to be executed, carried out or implemented by
the delegate 2 — and (b) x a standard — the limits of which are su ciently determinate or
determinable — to which the delegate must conform in the performance of his functions. 2
Indeed, without a statutory declaration of policy, the delegate would, in effect, make or
formulate such policy, which is the essence of every law; and, without the aforementioned
standard, there would be no means to determine, with reasonable certainty, whether the
delegate has acted within or beyond the scope of his authority. 2 Hence, he could thereby
arrogate upon himself the power, not only to make the law, but, also — and this is worse —
to unmake it, by adopting measures inconsistent with the end sought to be attained by the
Act of Congress, thus nullifying the principle of separation of powers and the system of
checks and balances, and, consequently undermining the very foundation of our Republican
system.
Section 68 of the Revised Administrative Code does not meet these well settled
requirements for a valid delegation of the power to x the details in the enforcement of a
law. It does not enunciate any policy to be carried out or implemented by the President.
Neither does it give a standard su ciently precise to avoid the evil effects above referred
to. In this connection, we do not overlook the fact that, under the last clause of the rst
sentence of Section 68, the President:
". . . may change the seat of the government within any subdivision to
such place therein as the public welfare may require."
It is apparent, however, from the language of this clause, that the phrase "as the public
welfare may require" quali es, not the clauses preceding the one just quoted, but only the
place to which the seat of the government may be transferred. This fact becomes more
apparent when we consider that said Section 68 was originally Section 1 of Act No. 1748, 3
which provided, that "whenever in the judgment of the Governor-General the public welfare
requires, he may, by executive order", effect the changes enumerated therein (as well as in
said Section 68), including the change of the seat of the government "to such place . . . as
the public interest requires". The opening statement of said Section 1 of Act No. 1748 —
which was not included in Section 68 of the Revised Administrative Code — governed the
time at which, or the conditions under which, the powers therein conferred could be
exercised; whereas the last part of the rst sentence of said section referred exclusively to
the place to which the seat of the government was to be transferred.
At any rate, the conclusion would be the same, insofar as the case at bar is concerned,
even if we assumed that the phrase "as the public welfare may require", in said Section 68,
quali es all other clauses thereof. It is true that in Calalang vs. Williams (70 Phil. 726) and
People vs. Rosenthal (68 Phil. 328), this Court had upheld "public welfare" and "public
interest", respectively, as su cient standards for a valid delegation of the authority to
execute the law. But, the doctrine laid down in these cases — as all judicial
pronouncements — must be construed in relation to the speci c facts and issues involved
therein, outside of which they do not constitute precedents and have no binding effect. 4
The law construed in the Calalang case conferred upon the Director of Public Works, with
the approval of the Secretary of Public Works and Communications, the power to issue
rules and regulations to promote safe transit upon national roads and streets. Upon the
other hand, the Rosenthal case referred to the authority of the Insular Treasurer, under Act
No. 2581, to issue and cancel certi cates or permits for the sale of speculative securities.
Both cases involved grants to administrative o cers of powers related to the exercise of
their administrative functions, calling for the determination of questions of fact.
Such is not the nature of the powers dealt with in section 68. As above indicated, the
creation of municipalities, is not an administrative function, but one which is essentially
a n d eminently legislative in character. The question whether or not "public interest"
demands the exercise of such power is not one of fact. It is "purely a legislative question"
(Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d., 310-313,
315-318), or a political question (Udall vs. Severn, 79 P. 2d. 347-349). As the Supreme
Court of Wisconsin has aptly characterized it, "the question as to whether incorporation is
for the best interest of the community in any case is emphatically a question of public
policy and statecraft" (In re Village of North Milwaukee, 67 N. W. 1033, 1035-1037).
For this reason, courts of justice have annulled, as constituting undue delegation of
legislative powers, state laws granting the judicial department the power to determine
whether certain territories should be annexed to a particular municipality (Udall vs. Severn,
supra, 358-359); or vesting in a Commission the right to determine the plan and frame of
government of proposed villages and what functions shall be exercised by the same,
although the powers and functions of the village are speci cally limited by statute (In re
Municipal Charters, 86 Atl. 307-308); or conferring upon courts the authority to declare a
given town or village incorporated, and designate its meter and bounds, upon petition of a
majority of the taxable inhabitants thereof, setting forth the area desired to be included in
such village (Territory ex rel Kelly vs. Stewart, 23 Pac. 405-409); or authorizing the territory
of a town, containing a given area and population, to be incorporated as a town, on certain
steps being taken by the inhabitants thereof and on certain determination by a court and
subsequent vote of the inhabitants in favor thereof, insofar as the court is allowed to
determine whether the lands embraced in the petition "ought justly" to be included in the
village, and whether the interest of the inhabitants will be promoted by such incorporation,
and to enlarge and diminish the boundaries of the proposed village "as justice may require"
(In re Villages of North Milwaukee, 67 N.W. 1035-1037); or creating a Municipal Board of
Control which shall determine whether or not the laying out, construction or operation of a
toll road is in the "public interest" and whether the requirements of the law had been
complied with, in which case the Board shall enter an order creating a municipal
corporation and xing the name of the same (Carolina-Virginia Coastal Highway vs.
Coastal Turnpike Authority, 74 S. E. 2d. 310).
Insofar as the validity of a delegation of power by Congress to the President is concerned,
the case of Schechter Poultry Corporation vs. U. S. (79 L. ed. 1570) is quite relevant to the
one at bar. The Schechter case involved the constitutionality of Section 3 of the National
Industrial Recovery Act authorizing the President of the United States to approve "codes of
fair competition" submitted to him by one or more trade or industrial associations or
corporations which "impose no inequitable restrictions on admission to membership
therein and are truly representative," provided that such codes are not designed "to
promote monopolies or to eliminate or oppress small enterprises and will not operate to
discriminate against them, and will tend to effectuate the policy" of said Act. The Federal
Supreme Court held:
"To summarize and conclude upon this point: Sec. 3 of the Recovery
Act is without precedent. It supplies no standards for any trade, industry or
activity. It does not undertake to prescribe rules of conduct to be applied to
particular states of fact determined by appropriate administrative procedure.
Instead of prescribing rules of conduct, it authorizes the making of codes to
prescribe them. For that legislative undertaking, Sec. 3 sets up no standards,
aside from the statement of the general aims of rehabilitation, correction
and expansion described in Sec. 1. In view of the scope of that broad
declaration, and of the nature of the few restrictions that are imposed, the
discretion of the President in approving or prescribing codes, and thus
enacting laws for the government of trade and industry throughout the
country, is virtually unfettered. We think that the code-making authority thus
conferred is an unconstitutional delegation of legislative power."
If the term "unfair competition" is so broad as to vest in the President a discretion that is
"virtually unfettered", and, consequently, tantamount to a delegation of legislative power, it
is obvious that "public welfare", which has even a broader connotation, leads to the same
result. In fact, if the validity of the delegation of powers made in Section 68 were upheld,
there would no longer be any legal impediment to a statutory grant of authority to the
President to do anything which, in his opinion, may be required by public welfare or public
interest. Such grant of authority would be a virtual abdication of the powers of Congress in
favor of the Executive, and would bring about a total collapse of the democratic system
established by our Constitution, which it is the special duty and privilege of this Court to
uphold.
It may not be amiss to note that the executive orders in question were issued after the
legislative bills for the creation of the municipalities involved in this case had failed to pass
Congress. A better proof of the fact that the issuance of said executive orders entails the
exercise of purely legislative functions can hardly be given.
Again, Section 10 (1) of Article VII of our fundamental law ordains:
"The President shall have control of all executive departments,
bureaus or o ces, exercise general supervision over all local governments
as may be provided by law, and take care that the laws be faithfully
executed."
The power of control under this provision implies the right of the President to interfere in
the exercise of such discretion as may be vested by law in the o cers of the executive
departments, bureaus, or o ces of the national government, as well as to act in lieu of
such o cers. This power is denied by the Constitution to the Executive, insofar as local
governments are concerned. With respect to the latter, the fundamental law permits him to
wield no more authority than that of checking whether said local governments or the
o cers thereof perform their duties as provided by statutory enactments. Hence, the
President cannot interfere with local governments, so long as the same or its o cers act
within the scope of their authority. He may not enact an ordinance which the municipal
council has failed or refused to pass, even if it had thereby violated a duty imposed thereto
by law, although he may see to it that the corresponding provincial o cials take
appropriate disciplinary action therefor. Neither may he veto, set aside or annul an
ordinance passed by said council within the scope of its jurisdiction, no matter how
patently unwise it may be. He may not even suspend an elective o cial of a regular
municipality or take any disciplinary action against him, except on appeal from a decision
of the corresponding provincial board. 5
Upon the other hand, if the President could create a municipality, he could, in effect,
remove any of its officials, by creating a new municipality and including therein the barrio in
which the o cial concerned resides, for his o ce would thereby become vacant. 6 Thus,
by merely brandishing the power to create a new municipality (if he had it), without actually
creating it, he could compel local o cials to submit to his dictation, thereby, in effect,
exercising over them the power of control denied to him by the Constitution.
Then, also, the power of control of the President over executive departments, bureaus or
o ces implies no more than the authority to assume directly the functions thereof or to
interfere in the exercise of discretion by its o cials. Manifestly, such control does not
include the authority either to abolish an executive department or bureaus, or to create a
new one. As a consequence, the alleged power of the President to create municipal
corporations would necessarily connote the exercise by him of an authority even greater
than that of control which he has over the executive departments, bureaus or o ces. In
other words, Section 68 of the Revised Administrative Code does not merely fail to comply
with the constitutional mandate above quoted. Instead of giving the President less power
over local governments than that vested in him over the executive departments, bureaus or
o ces, it reverses the process and does the exact opposite, by conferring upon him more
power over municipal corporations than that which he has over said executive
departments, bureaus or offices.
In short, even if it did not entail an undue delegation of legislative powers, as it certainly
does, said Section 68, as part of the Revised Administrative Code, approved on March 10,
1917, must be deemed repealed by the subsequent adoption of the Constitution, in 1935,
which is utterly incompatible and inconsistent with said statutory enactment. 7
There are only two (2) other points left for consideration, namely, respondent's claim (a)
that "not all the proper parties" — referring to the o cers of the newly created
municipalities — "have been impleaded in this case", and (b) that "the present petition is
premature."
As regards the rst point, su ce it to say that the records do not show, and the parties do
not claim, that the o cers of any of said municipalities have been appointed or elected
and assumed o ce. At any rate, the Solicitor-General, who has appeared on behalf of
respondent Auditor General, is the o cer authorized by law "to act and represent the
Government of the Philippines, its o ces and agents, in any o cial investigation,
proceeding or matter requiring the services of a lawyer" (Section 1661, Revised
Administrative Code), and, in connection with the creation of the aforementioned
municipalities, which involves a political, not proprietary, function, said local o cials, if any,
are mere agents or representatives of the national government. Their interest in the case at
bar has, accordingly, been, in effect, duly represented. 8
With respect to the second point, respondent alleges that he has not as yet acted on any
of the executive order in question and has not intimated how he would act in connection
therewith. It is however, a matter of common, public knowledge, subject to judicial
cognizance, that the President has, for many years, issued executive orders creating
municipal corporations and that the same have been organized and in actual operation,
thus indicating, without peradventure of doubt, that the expenditures incidental thereto
have been sanctioned, approved or passed in audit by the General Auditing O ce and its
o cials. There is no reason to believe, therefore, that respondent would adopt a different
policy as regards the new municipalities involved in this case, in the absence of an
allegation to such effect, and none has been made by him.
WHEREFORE the Executive Orders in question are hereby declared null and void ab initio
and the respondent permanently restrained from passing in audit any expenditure of public
funds in implementation of said Executive Orders or any disbursement by the
municipalities above referred to. It is so ordered.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera and Dizon, JJ., concur.
Zaldivar, J., took no part.
Separate Opinions
BENGZON, J.P., J. , concurring and dissenting:
A sign of progress in a developing nation is the rise of new municipalities. Fostering their
rapid growth has long been the aim pursued by all three branches of our Government.
So it was that the Governor-General during the time of the Jones Law was given authority
by the legislature (Act No. 1748) to act upon certain details with respect to said local
governments, such as xing of boundaries, subdivisions and mergers. And the Supreme
Court, within the framework of the Jones Law, ruled in 1917 that the execution or
implementation of such details, did not entail abdication of legislative power (Government
vs. Municipality of Binangonan, 34 Phil. 518; Municipality of Cardona vs. Municipality of
Binangonan, 36 Phil. 547). Subsequently, Act No. 1748's aforesaid statutory authorization
was embodied in Section 68 of the Revised Administrative Code. And Chief Executives
since then up to the present continued to avail of said provision, time and again invoking it
to issue executive orders providing for the creation of municipalities.
From September 4, 1964 to October 29, 1964 the President of the Philippines issued
executive orders to create thirty-three municipalities pursuant to Section 68 of the Revised
Administrative Code. Public funds thereby stood to be disbursed in implementation of
said executive orders.
Suing as private citizen and taxpayer, Vice-President Emmanuel Pelaez led in this Court a
petition for prohibition with preliminary injunction against the Auditor General. It seeks to
restrain the respondent or any person acting in his behalf, from passing in audit any
expenditure of public funds in implementation of the executive orders aforementioned.
Petitioner contends that the President has no power to create a municipality by executive
order. It is argued that Section 68 of the Revised Administrative Code of 1917, so far as it
purports to grant any such power, is invalid or, at least, already repealed in the light of the
Philippine Constitution and Republic Act 2370 (The Barrio Charter).
Section 68 is again reproduced hereunder for convenience:
"SEC. 68.General authority of [Governor-General] President of the
Philippines to x boundaries and make new subdivisions. — The [Governor-
General] President of the Philippines may by executive order de ne the
boundary, or boundaries, of any province, subprovince, municipality,
[township] municipal district, or other political subdivision, and increase or
diminish the territory comprised therein, may divide any province into one or
more subprovinces, separate any political division other than a province, into
such portions as may be required, merge any of such subdivisions or
portions with another, name any new subdivision so created, and may
change the seat of government within any subdivision to such place therein
as the public welfare may require: Provided, That the authorization of the
[Philippine Legislature] Congress of the Philippines shall rst be obtained
whenever the boundary of any province or subprovince is to be de ned or
any province is to be divided into one or more subprovinces. When action by
the [Governor- General] President of the Philippines in accordance herewith
makes necessary a change of the territory under the jurisdiction of any
administrative o cer or any judicial o cer, the [Governor-General] President
of the Philippines, with the recommendation and advice of the head of the
Department having executive control of such o cer, shall redistrict the
territory of the several o cers affected and assign such o cers to the new
districts so formed.
"Upon the changing of the limits of political divisions in pursuance of

the foregoing authority, an equitable distribution of the funds and
obligations of the division thereby affected shall be made in such manner as
may be recommended by the [Insular Auditor] Auditor General and approved
by the [Governor-General] President of the Philippines."
From such wording I believe that power to create a municipality is included: to "separate
any political division other than a province, into such portions as may be required, merge
any of such subdivisions or portions with another, name any new subdivision so created".
The issue, however, is whether the Legislature can validly delegate to the Executive such
power.
The power to create a municipality is legislative in character. American authorities have
therefore favored the view that it cannot be delegated; that what is delegable is not the
power to create municipalities but only the power to determine the existence of facts
under which creation of a municipality will result (37 Am. Jur. 628).
The test is said to lie in whether the statute allows any discretion on the delegate as to
whether the municipal corporation should be created. If so, there is an attempted
delegation of legislative power and the statute is invalid (Ibid). Now Section 68 no doubt
gives the President such discretion, since it says that the President "may by executive
order" exercise the powers therein granted. Furthermore, Section 5 of the same Code
states:
"SEC. 5.Exercise of administrative discretion. — The exercise of the
permissive powers of all executive or administrative o cers and bodies is
based upon discretion, and when such o cer or body is given authority to
do any act but not required to do such act, the doing of the same shall be
dependent on a sound discretion to be exercised for the good of the service
and bene t of the public, whether so expressed in the statute giving the
authority or not."
Under the prevailing rule in the United States — and Section 68 is of American origin — the
provision in question would be an invalid attempt to delegate purely legislative powers,
contrary to the principle of separation of powers.
It is very pertinent that Section 68 should be considered with the stream of history in mind.
A proper knowledge of the past is the only adequate background for the present. Section
68 was adopted half a century ago. Political change, two world wars, the recognition of our
independence and rightful place in the family of nations, have since taken place. In 1917
the Philippines had for its Organic Act the Jones Law. And under the set-up ordained
therein no strict separation of powers was adhered to. Consequently, Section 68 was not
constitutionally objectionable at the time of its enactment.
The advent of the Philippine Constitution in 1935 however altered the situation. For not
only was separation of power strictly ordained, except only in speci c instances therein
provided, but the power of the Chief Executive over local governments suffered an explicit
reduction.
Formerly, Section 21 of the Jones Law provided that the Governor-General "shall have
general supervision and control of all the departments and bureaus of the government in
the Philippine Islands". Now Section 10 (1), Article VII of the Philippine Constitution
provides: "The President shall have control of all the executive departments, bureaus, or
o ces, exercise general supervision over all local governments as may be provided by law,
and take care that the laws be faithfully executed."

In short, the power of control over local governments had now been taken away from the
Chief Executive. Again, to fully understand the significance of this provision, one must trace
its development and growth.
As early as April 7, 1900 President McKinley of the United States, in his Instructions to the
Second Philippine Commission, laid down the policy that our municipal governments
should be "subject to the least degree of supervision and control" on the part of the
national government. Said supervision and control was to be con ned within the
"narrowest limits" or so much only as "may be necessary to secure and enforce faithful and
e cient administration by local o cers". And the national government "shall have no
direct administration except of matters of purely general concern". ( See Hebron v. Reyes,
L-9158, July 28, 1958.)
All this had one aim, to enable the Filipinos to acquire experience in the art of self-
government, with the end in view of later allowing them to assume complete management
and control of the administration of their local affairs. Such aim is the policy now
embodied in Section 10(1), Article VII of the Constitution (Rodriguez v. Montinola, 50 O. G.,
4820).
It is the evident decree of the Constitution, therefore, that the President shall have no
power of control over local governments. Accordingly, Congress cannot by law grant him
such power (Hebron v. Reyes, supra). And any such power formerly granted under the
Jones Law thereby-became unavoidably inconsistent with the Philippine Constitution.
It remains to examine the relation of the power to create and the power to control local
governments. Said relationship has already been passed upon by this Court in Hebron v.
Reyes, supra. In said case, it was ruled that the power to control is an incident of the power
to create or abolish municipalities. Respondent's view, therefore, that creating
municipalities and controlling their local governments are "two worlds apart", is untenable.
And since, as stated, the power to control local governments can no longer be conferred
on or exercised by the President, it follows a fortiori that the power to create them, all the
more cannot be so conferred or exercised.
I am impelled to conclude, therefore, that Section 10(1) of Article VII of the Constitution
has repealed Section 68 of the Revised Administrative Code as far as the latter empowers
the President to create local governments. Repeal by the Constitution of prior statutes
inconsistent with it has already been sustained in De los Santos vs. Mallare, 87 Phil. 289.
And it was there held that such repeal differs from a declaration of unconstitutionality of a
posterior legislation, so much so that only a majority vote of the Court is needed to sustain
a finding of repeal.
Since the Constitution repealed Section 68 as far back as 1935, it is academic to ask
whether Republic Act 2370 likewise has provisions in con ict with Section 68 so as to
repeal it. Su ce it to state, at any rate, that statutory prohibition on the President from
creating a barrio does not, in my opinion, warrant the inference of statutory prohibition for
creating a municipality. For although municipalities consist of barrios, there is nothing in
the statute that would preclude creation of new municipalities out of pre-existing barrios.
It is not contrary to the logic of local autonomy to be able to create larger political units
and unable to create smaller ones. For as long ago observed in President McKinley's
Instructions to the Second Philippine Commission, greater autonomy is to be imparted to
the smaller of the two political units. The smaller the unit of local government, the lesser is
the need for the national government's intervention in its political affairs. Furthermore, for
practical reasons, local autonomy cannot be given from the top downwards. The national
government, in such a case, could still exercise power over the supposedly autonomous
unit, e.g., municipalities, by exercising it over the smaller units that comprise them, e.g., the
barrios. A realistic program of decentralization therefore calls for autonomy from the
bottom upwards, so that it is not surprising for Congress to deny the national government
some power over barrios without denying it over municipalities. For this reason, I disagree
with the majority view that because the President could not create a barrio under Republic
Act 2370, a fortiori he cannot create a municipality.
It is my view, therefore, that the Constitution, and not Republic Act 2370, repealed Section
68 of the Revised Administrative Code's provision giving the President authority to create
local governments. And for this reason I agree with the ruling in the majority opinion that
the executive orders in question are null and void.
In thus ruling, the Court is but sustaining the ful llment of our historic desire to be free and
independent under a republican form of government, and exercising a function derived
from the very sovereignty that it upholds.
Makalintal and Regala, JJ., concur with the opinion of Justice J.P. Bengzon.
Footnotes
1.ExecutiveMunicipalityProvinceDateAnnex
Order No.Promulgation
93NiloZamboanga del SurSept. 4, 1964A(original Petition)
94Midsalip" " "" " " "B"

95Pitogo"" " "" " " "C"
96Maruing" " "" " " "D"

97Naga"" " "" " " "E"
99SebasteAntiqueSept. 26, 1964F"
100MoluganMisamisSept. 26, 1964G"Oriental

101MalixSurigaoSept. 28, 1964H"del Sur
102RoxasDavaoSept. 28, 1964I

103MagsaysayDavaoSept. 28, 1964J
104Sta. MariaDavaoSept. 28, 1964K
105BadianganIloiloSept. 28, 1964

106MinaIloiloOct. 1, 1964M
107AndongLanao delOct. 1, 1964NSur

108SultanLanao DelOct. 1, 1964OAlonto Sur
109MaguingLanao delOct. 1, 1964PSur

110DianatonLanao delOct. 1, 1964QSur
111ElpidioMt.Oct. 1, 1964RQuirino Province

112BayogZamboangaOct. 1, 1964Sdel Sur
113GloriaOrientalOct. 1, 1964GGMindoro
114MaasinCotabatoOct. 1, 1964T(Attached thereto)
115SiayanZamboangaOct. 1, 1964Udel Norte
116RoxasZamboangaOct. 1, 1964Vdel Norte

117PanganuranZamboangaOct. 1, 1964Wdel Norte
118KalilanganBukidnonOct. 1, 1964
119LantapanBukidnonOct. 1, 1964Y
120LibertadZamboangaOct. 1, 1964Zdel Sur
121GeneralZamboangaOct. 1. 1964AAAguinaldo del Sur

124RizalSurigaoOct. 3, 1964BBdel Norte
126TigaoSurigaoOct. 23, 1964CCdel Sur

127TampakanCotabatoOct. 26, 1964DD
128MacoDavaoOct. 29, 1964EE
129New CorellaDavaoOct. 29, 1964FF

1-a.Except to local governments, to which legislative powers, with respect to matters of local
concern, may be delegated.
2.Calalang vs. Williams, 70 Phil., 726; Pangasinan Trans. Co. vs. Public Service Commission, 70
Phil., 221; Cruz vs. Youngberg, 56 Phil., 234; Alegre vs. Collector of Customs, 53 Phil.,
394; Mulford vs. Smith, 307 U.S., 38.
2-a.People vs. Lim Ho, L-12091-2, January 28, 1960; People vs. Jolliffe, L-9553, May 13, 1959;
People vs. Vera, 65 Phil., 56; U.S. vs. Ang Tang Ho, 43 Phil., 1; Compaña General de
Tabacos vs. Board of Public Utility, 34 Phil., 136; Mutual Film Co. vs. Industrial
Commission, 236 U.S. 247, 59 L. ed. 561, Mutual Film Corp. vs. Industrial Commission,
236 U.S. 230, 59 L. ed. 552; Pamana Refining Co. vs. Ryan, 293 U.S. 338; 79 L. ed. 446;
A.L.A. Schechter Poultry Corp. vs. U.S. 295 U.S. 495, 79 L. ed. 1570; U.S. vs. Rock Royal
Coop., 307 U.S. 533, 83 L. ed. 1446; Bowles vs. Willingham, 321 U.S. 503, 88 L. ed. 892;
Araneta vs. Gatmaitan, L-8895, April 30, 1957; Cervantes vs. Auditor General L-4043, May
26, 1952; Phil. Association of Colleges vs. Sec. of Education, 51 Off. Gaz., 6230; People
vs. Arnault, 48 Off. Gaz., 4805; Antamok Gold Fields vs. CIR, 68 Phil. 340; U.S. vs. Barrias,
11 Phil., 327; Yakus vs. White, 321 U.S. 414; Ammann vs. Mailonce, 332 U.S., 245.
2-b.Vigan Electric Light Company, Inc., vs. The Public Service Commission, L-19850, January
30, 1964.
3.Whenever in the judgment of the Governor-General the public welfare requires, he may, by
executive order, enlarge, contract, or otherwise change the boundary of any province,
subprovince, municipality, or township or other political subdivision, or separate any
such subdivision into such portions as may be required as aforesaid, merge any of such
subdivisions or portions with another divide any province into one or more subprovinces
as may be required as aforesaid, name any new subdivision so created, change the seat
of government within any subdivision, existing or created hereunder, to such place
therein as the public interests require, and shall fix in such executive order the date when
the change, merger, separation, or other action shall take effect. Whenever such action
as aforesaid creates a new political subdivision the Governor-General shall appoint such
officers for the new subdivision with such powers and duties as may be required by the
existing provisions of law applicable to the case and fix their salaries; such appointees
shall hold office until their successors are elected or appointed and qualified.
Successors to the elective offices shall be elected at the next general elections following
such appointment. Such equitable distribution of the funds of changed subdivisions
between the subdivisions affected shall be made as is recommended by the Insular
Auditor and approved by the Governor-General.
4.McGirr vs. Hamilton, 30 Phil. 563; Hebron vs. Reyes, L-9124, July 28, 1958; U.S. vs. More, 3
Cranch 159, 172; U.S. vs. Sanges, 144 U.S. 310, 319; Cross vs. Burke, 146 U.S. 82;
Louisville Trust Co. vs. Knott, 191 U.S. 225. See, also, 15 C.J. 929-940; 21 C.J.S. 297,
299; 14 Am. Jur. 345.
5.Hebron vs. Reyes, L-9124, July 28, 1958; Mondano vs. Silvosa, 51 Off. Gaz., 2884; Rodriguez
vs. Montinola, 50 Off. Gaz., 4820; Querubin vs. Castro, L-9779, July 31, 1958.
6.Pursuant to section 2179 of the Revised Administrative Code: "When a part of a barrio is
detached from a municipality to form a new municipality or to be added to an existing
municipality, any officer of the old municipality living in the detached territory may
continue to hold this office and exert the functions thereof for the remainder of his term;
but if he is resident of a barrio the whole of which is detached, his office shall be
deemed to be vacated."
7.De los Santos vs. Mallare, 87 Phil., 289 — 298-299.
8.Mangubat vs. Osmeña, Jr., L-12837, April 30, 1959; City of Gebu vs. Judge Piccio, L-13012 &
L-14876, December 31, 1960.
In the distribution of power among the governments to be organized in the Philippines "the
presumption is always to be in favor of the smaller subdivision." (President Mckinley's
instruction to the Second Philippine Commission, April 7, 1900; Italics supplied.)

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ADMINPCEL

(Administrative Public Corporations and Election Laws)

[G.R. Nos. L-49705-09. February 8, 1979.]

TOMATIC ARATUC, SERGIO TOCAO, CISCOLARIO DIAZ, FRED

[G.R. Nos. L-49717-21.]

LINANG MANDANGAN, petitioner, vs. THE COMMISSION ON

Of the Ruling of the Court

1. Roldan, Ernesto (KB) 225,674

2. Valdez, Estanislao (KBL) 217,789

3. Dimaporo, Abdullah (KBL) 199,244

4. Tocao, Sergio (KB) 199,062

5. Badoy, Anacleto (KBL) 198,956

6. Amparo, Jesus (KBL) 184,764

7. Pangandaman, Sambolayan (KBL) 183,646

8. Sinsuat, Datu Blah (KBL) 182,457

9. Baga, Tomas (KBL) 171,656

10. Aratuc, Tomatic (KB) 165,795

11. Mandangan, Linang (KB) 165,032

12. Diaz, Ciscolario (KB) 159,977

13 Tamula, Fred (KB) 153,734

15. Guro, Mangontawar (KB) 139,386

16. Loma, Nemesio (KB) 107,455

17. Macapeges, Malamama (Independent) 101,350

(Votes of the independent candidates who actually were not in contention

On June 1, 1978, upon proper motion, said guidelines were modified:

"VALDEZ, Estanislao 436,069

DIMAPORO, Abdullah 429,961

PANGANDAMAN, Sambolayan 408,106

SINSUAT, Blah 403,445

AMPARO, Jesus 399,997

MANDANGAN, Linang 387,026

BAGA, Tomas 386,399

BADOY, Anacleto 374.999

ROLDAN, Ernesto 276.141

TOCAO, Sergio 299,914

ARATUC, Tomatic 205,829

GURO, Mangontawar 190,489

DIAZ, Ciscolario 190,077

TAMULA, Fred 180,280

LEGASPI, Bonifacio 174,996

MACAPEGES, Malamama 160,271

"(Pp. 11-12, Record.)

"In order to enable the Commission to decide the appeal properly:

VALDEZ, Estanislao 319,514

DIMAPORO, Abdullah 289,751

AMPARO, Jesus 286,180

BADOY, Anacleto 285,985

BAGA, Tomas 271,473

PANGANDAMAN, Sambolayan 271,393

SINSUAT, Blah 269,905

ROLDAN, Ernesto 268,287

MANDANGAN, Linang 251,226

TOCAO, Sergio 229,124

DIAZ, Ciscolario 187,986

ARATUC, Tomatic 183,316

LEGASPI, Bonifacio 178,564

TAMULA, Fred 177,270

GURO, Mangontawar 163,449

LOMA, Nemesio 129,450"

(Page 14, Record, L-49705-09.)

It is alleged in the Aratuc petition that:

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"1. In erroneously applying the earlier case of Diaz vs. Commission on