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EN BANC G.R. No.

L-45987 May 5, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.CAYAT, defendant-appellant. Sinai Hamada y Cario for appellant.Office of the Solicitor-General Tuason for appellee. MORAN, J.: Prosecuted for violation of Act No. 1639 (secs. 2 and 3), the accused, Cayat, a native of Baguio, Benguet, Mountain Province, was sentenced by the justice of the peace court of Baguio to pay a fine of five pesos (P5) or suffer subsidiary imprisonment in case of insolvency. On appeal of the Court of First Instance, the following information was filed against him: That on or about the 25th day of January, 1937, in the City of Baguio, Commonwealth of the Philippines, and within the jurisdiction of this court, the above-named accused, Cayat, being a member of the non-Christian tribes, did then and there willfully, unlawfully, and illegally receive, acquire, and have in his possession and under his control or custody, one bottle of A-1-1 gin, an intoxicating liquor, other than the so-called native wines and liquors which the members of such tribes have been accustomed themselves to make prior to the passage of Act No. 1639. Accused interposed a demurrer which was overruled. At the trial, he admitted all the facts alleged in the information, but pleaded not guilty to the charge for the reasons adduced in his demurrer and submitted the case on the pleadings. The trial court found him guilty of the crime charged and sentenced him to pay a fine of fifty pesos (P50) or supper subsidiary imprisonment in case of insolvency. The case is now before this court on appeal. Sections 2 and 3 of Act No. 1639 read: SEC. 2. It shall be unlawful for any native of the Philippine Islands who is a member of a non-Christian tribe within the meaning of the Act Numbered Thirteen hundred and ninety-seven, to buy, receive, have in his possession, or drink any ardent spirits, ale, beer, wine, or intoxicating liquors of any kind, other than the so-called native wines and liquors which the members of such tribes have been accustomed themselves to make prior to the passage of this Act, except as provided in section one hereof; and it shall be the duty of any police officer or other duly authorized agent of the Insular or any provincial, municipal or township government to seize and forthwith destroy any such liquors found unlawfully in the possession of any member of a non-Christian tribe. SEC. 3. Any person violating the provisions of section one or section two of this Act shall, upon conviction thereof, be punishable for each offense by a fine of not exceeding two hundred pesos or by imprisonment for a term not exceeding six months, in the discretion of the court. The accused challenges the constitutionality of the Act on the following grounds: (1) That it is discriminatory and denies the equal protection of the laws; (2) That it is violative of the due process clause of the Constitution: and. (3) That it is improper exercise of the police power of the state. Counsel for the appellant holds out his brief as the "brief for the non-Christian tribes." It is said that as these less civilized elements of the Filipino population are "jealous of their rights in a democracy," any attempt to treat them with discrimination or "mark them as inferior or less capable rate or less entitled" will meet with their instant challenge. As the constitutionality of the Act here involved is questioned for purposes thus mentioned, it becomes imperative to examine and resolve the issues raised in the light of the policy of the government towards the non-Christian tribes adopted and consistently followed from

the Spanish times to the present, more often with sacrifice and tribulation but always with conscience and humanity. As early as 1551, the Spanish Government had assumed an unvarying solicitous attitude toward these inhabitants, and in the different laws of the Indies, their concentration in so-called "reducciones" (communities) have been persistently attempted with the end in view of according them the "spiritual and temporal benefits" of civilized life. Throughout the Spanish regime, it had been regarded by the Spanish Government as a sacred "duty to conscience and humanity" to civilize these less fortunate people living "in the obscurity of ignorance" and to accord them the "the moral and material advantages" of community life and the "protection and vigilance afforded them by the same laws." (Decree of the Governor-General of the Philippines, Jan. 14, 1887.) This policy had not been deflected from during the American period. President McKinley in his instructions to the Philippine Commission of April 7, 1900, said: In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government, and under which many of those tribes are now living in peace and contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal government should, however, be subjected to wise and firm regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous practices and introduce civilized customs. Since then and up to the present, the government has been constantly vexed with the problem of determining "those practicable means of bringing about their advancement in civilization and material prosperity." (See, Act No. 253.) "Placed in an alternative of either letting them alone or guiding them in the path of civilization," the present government "has chosen to adopt the latter measure as one more in accord with humanity and with the national conscience." (Memorandum of Secretary of the Interior, quoted in Rubi vs. Provincial Board of Mindoro, 39 Phil., 660, 714.) To this end, their homes and firesides have been brought in contact with civilized communities through a network of highways and communications; the benefits of public education have to them been extended; and more lately, even the right of suffrage. And to complement this policy of attraction and assimilation, the Legislature has passed Act No. 1639 undoubtedly to secure for them the blessings of peace and harmony; to facilitate, and not to mar, their rapid and steady march to civilization and culture. It is, therefore, in this light that the Act must be understood and applied. It is an established principle of constitutional law that the guaranty of the equal protection of the laws is not equal protection of the laws is not violated by a legislation based on reasonable classification. And the classification, to be reasonable, (1) must rest on substantial distinctions; (2) must be germane to the purposes of the law; (3) must not be limited to existing conditions only; and (4) must apply equally to all members of the same class. (Borgnis vs. Falk Co., 133 N.W., 209; Lindsley vs. Natural Carbonic Gas Co., 220 U.S. 61; 55 Law. ed., Rubi vs. Provincial Board of Mindoro, 39 Phil., 660; People and Hongkong & Shanghai Banking Corporation vs. Vera and Cu Unjieng, 37 Off. Gaz ., 187.) Act No. 1639 satisfies these requirements. The classification rests on real and substantial, not merely imaginary or whimsical, distinctions. It is not based upon "accident of birth or parentage," as counsel to the appellant asserts, but upon the degree of civilization and culture. "The term 'non-Christian tribes' refers, not to religious belief, but, in a way, to the geographical area, and, more directly, to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship apart from settled communities." (Rubi vs. Provincial Board of Mindoro, supra.) This distinction is unquestionably reasonable, for the Act was intended to meet the peculiar conditions existing in the non-Christian tribes. The exceptional cases of certain members thereof who at present have reached a position of cultural equality with their Christian brothers, cannot affect the reasonableness of the classification thus established. That it is germane to the purposes of law cannot be doubted. The prohibition "to buy, receive, have in his possession, or drink any ardent spirits, ale, beer, wine, or

intoxicating liquors of any kind, other than the so-called native wines and liquors which the members of such tribes have been accustomed themselves to make prior to the passage of this Act.," is unquestionably designed to insure peace and order in and among the non-Christian tribes. It has been the sad experience of the past, as the observations of the lower court disclose, that the free use of highly intoxicating liquors by the non-Christian tribes have often resulted in lawlessness and crimes, thereby hampering the efforts of the government to raise their standard of life and civilization. The law is not limited in its application to conditions existing at the time of its enactment. It is intended to apply for all times as long as those conditions exist. The Act was not predicated, as counsel for appellant asserts, upon the assumption that the non-Christians are "impermeable to any civilizing influence." On the contrary, the Legislature understood that the civilization of a people is a slow process and that hand in hand with it must go measures of protection and security. Finally, that the Act applies equally to all members of the class is evident from a perusal thereof. That it may be unfair in its operation against a certain number non-Christians by reason of their degree of culture, is not an argument against the equality of its application. Appellants contends that that provision of the law empowering any police officer or other duly authorized agent of the government to seize and forthwith destroy any prohibited liquors found unlawfully in the possession of any member of the non-Christian tribes is violative of the due process of law provided in the Constitution. But this provision is not involved in the case at bar. Besides, to constitute due process of law, notice and hearing are not always necessary. This rule is especially true where much must be left to the discretion of the administrative officials in applying a law to particular cases. (McGehee, Due Process of Law p. 371, cited with approval in Rubi vs. Provincial Board of Mindoro, supra.) Due process of law means simply: (1) that there shall be a law prescribed in harmony with the general powers of the legislative department of the government; (2) that it shall be reasonable in its operation; (3) that it shall be enforced according to the regular methods of procedure prescribed; and (4) that it shall be applicable alike to all citizens of the state or to all of the class. (U.S. vs. Ling Su Fan, 10 Phil., 104, affirmed on appeal by the United States Supreme Court, 218 U.S., 302: 54 Law. ed., 1049.) Thus, a person's property may be seized by the government in payment of taxes without judicial hearing; or property used in violation of law may be confiscated (U.S. vs. Surla, 20 Phil., 163, 167), or when the property constitutes corpus delicti, as in the instant case (Moreno vs. Ago Chi, 12 Phil., 439, 442). Neither is the Act an improper exercise of the police power of the state. It has been said that the police power is the most insistent and least limitable of all powers of the government. It has been aptly described as a power co-extensive with self-protection and constitutes the law of overruling necessity. Any measure intended to promote the health, peace, morals, education and good order of the people or to increase the industries of the state, develop its resources and add to its wealth and prosperity (Barbier vs. Connolly, 113 U.S., 27), is a legitimate exercise of the police power, unless shown to be whimsical or capricious as to unduly interfere with the rights of an individual, the same must be upheld. Act No. 1639, as above stated, is designed to promote peace and order in the nonChristian tribes so as to remove all obstacles to their moral and intellectual growth and, eventually, to hasten their equalization and unification with the rest of their Christian brothers. Its ultimate purpose can be no other than to unify the Filipino people with a view to a greater Philippines. The law, then, does not seek to mark the non-Christian tribes as "an inferior or less capable race." On the contrary, all measures thus far adopted in the promotion of the public policy towards them rest upon a recognition of their inherent right to equality in tht enjoyment of those privileges now enjoyed by their Christian brothers. But as there can be no true equality before the law, if there is, in fact, no equality in education, the government has endeavored, by appropriate measures, to raise their culture and civilization and secure for them the benefits of their progress, with the ultimate end in

view of placing them with their Christian brothers on the basis of true equality. It is indeed gratifying that the non-Christian tribes "far from retrograding, are definitely asserting themselves in a competitive world," as appellant's attorney impressively avers, and that they are "a virile, up-and -coming people eager to take their place in the world's social scheme." As a matter of fact, there are now lawyers, doctors and other professionals educated in the best institutions here and in America. Their active participation in the multifarious welfare activities of community life or in the delicate duties of government is certainly a source of pride and gratification to people of the Philippines. But whether conditions have so changed as to warrant a partial or complete abrogation of the law, is a matter which rests exclusively within the prerogative of the National Assembly to determine. In the constitutional scheme of our government, this court can go no farther than to inquire whether the Legislature had the power to enact the law. If the power exists, and we hold it does exist, the wisdom of the policy adopted, and the adequacy under existing conditions of the measures enacted to forward it, are matters which this court has no authority to pass upon. And, if in the application of the law, the educated non-Christians shall incidentally suffer, the justification still exists in the all-comprehending principle of salus populi suprema est lex. When the public safety or the public morals require the discontinuance of a certain practice by certain class of persons, the hand of the Legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which some members of the class may suffer. The private interests of such members must yield to the paramount interests of the nation (Cf. Boston Beer Co. vs. Mass., 97 U.S., 25; 24 law. ed., 989). Judgment is affirmed, with costs against appellant. Avancea, C.J., Villa-Real, Imperial, Diaz, Laurel, and Conception, JJ., concur. EN BANC G.R. No. 189698 February 22, 2010

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners, vs.COMMISSION ON ELECTIONS, Respondent. RESOLUTION PUNO, C.J.: Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on Elections (COMELEC) motion for reconsideration, and the movantsintervenors motions for reconsideration-in-intervention, of this Courts December 1, 2009 Decision (Decision).1 The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, 2 Section 66 of the Omnibus Election Code3 and Section 4(a) of COMELEC Resolution No. 8678, 4 mainly on the ground that they violate the equal protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved the way for public appointive officials to continue discharging the powers, prerogatives and functions of their office notwithstanding their entry into the political arena. In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments: (1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public appointive officials and members of the military in partisan political activity; (2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and appointive officials, because such differential

treatment rests on material and substantial distinctions and is germane to the purposes of the law; (3) The assailed provisions do not suffer from the infirmity of overbreadth; and (4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal. We find the foregoing arguments meritorious. I. Procedural Issues First, we shall resolve the procedural issues on the timeliness of the COMELECs motion for reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009 Decision. i. Timeliness of COMELECs Motion for Reconsideration Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,5 in relation to Section 1, Rule 52 of the same rules,6 COMELEC had a period of fifteen days from receipt of notice of the assailed Decision within which to move for its reconsideration. COMELEC received notice of the assailed Decision on December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration. The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009. The corresponding Affidavit of Service (in substitution of the one originally submitted on December 14, 2009) was subsequently filed on December 17, 2009 still within the reglementary period. ii. Propriety of the Motions for Reconsideration-in-Intervention Section 1, Rule 19 of the Rules of Court provides: A person who has legal interest in the matter in litigation or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding. Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained when the following requisites are satisfied: (1) the would-be intervenor shows that he has a substantial right or interest in the case; and (2) such right or interest cannot be adequately pursued and protected in another proceeding.7 Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a motion for intervention may be filed, viz.: SECTION 2. Time to intervene. The motion for intervention may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (italics supplied) This rule, however, is not inflexible. Interventions have been allowed even beyond the period prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by the trial court,8 when the petition for review of the judgment has already been submitted for

decision before the Supreme Court,9 and even where the assailed order has already become final and executory.10 In Lim v. Pacquing,11 the motion for intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once and for all the substantive issues raised by the parties. In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court12 after consideration of the appropriate circumstances.13 We stress again that Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely available for justice.14 Its purpose is not to hinder or delay, but to facilitate and promote the administration of justice.15 We rule that, with the exception of the IBP Cebu City Chapter, all the movantsintervenors may properly intervene in the case at bar. First, the movants-intervenors have each sufficiently established a substantial right or interest in the case. As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1, 2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a matter that involves the electoral process; and as a public officer, he has a personal interest in maintaining the trust and confidence of the public in its system of government. On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the May 2010 elections running against appointive officials who, in view of the December 1, 2009 Decision, have not yet resigned from their posts and are not likely to resign from their posts. They stand to be directly injured by the assailed Decision, unless it is reversed. Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and protected in another proceeding. Clearly, their rights will be foreclosed if this Courts Decision attains finality and forms part of the laws of the land. With regard to the IBP Cebu City Chapter, it anchors its standing on the assertion that "this case involves the constitutionality of elections laws for this coming 2010 National Elections," and that "there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal profession would also be heard before this Highest Tribunal as it resolves issues of transcendental importance."16 Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to present a specific and substantial interest sufficient to clothe it with standing to intervene in the case at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention. We now turn to the substantive issues. II. Substantive Issues The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following grounds: (1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive offices and those holding elective positions; (2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants activity regardless of whether they be partisan or nonpartisan in character, or whether they be in the national,

municipal or barangay level; and (3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials. We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision. III. Section 4(a) of COMELEC Resolution 8678 Compliant with Law Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and jurisprudence on the matter, viz.: Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy. Incumbent Elected Official. Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act,17 which repealed Section 67 of the Omnibus Election Code18 and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running,19 an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat. These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which prohibits civil service officers and employees from engaging in any electioneering or partisan political campaign. The intention to impose a strict limitation on the participation of civil service officers and employees in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and Commissioner Foz during the deliberations of the Constitutional Commission is instructive: MS. QUESADA. xxxx Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote: "No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political activity." This is almost the same provision as in the 1973 Constitution. However, we in the government service have actually experienced how this provision has been violated by the direct or indirect partisan political activities of many government officials. So, is the Committee willing to include certain clauses that would make this provision more strict, and which would deter its violation? MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter are more than exhaustive enough to really prevent officers and employees in the public service from engaging in any form of partisan political activity. But the problem really lies in implementation because, if the head of a ministry, and even the superior officers of offices and agencies of government will themselves violate the constitutional injunction against partisan political activity, then no string of words that

we may add to what is now here in this draft will really implement the constitutional intent against partisan political activity. x x x20 (italics supplied) To emphasize its importance, this constitutional ban on civil service officers and employees is presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A, Title I, Book V of the Administrative Code of 1987 respectively provide in relevant part: Section 44. Discipline: General Provisions: xxxx (b) The following shall be grounds for disciplinary action: xxxx (26) Engaging directly or indirectly in partisan political activities by one holding a nonpolitical office. xxxx Section 55. Political Activity. No officer or employee in the Civil Service including members of the Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothing herein provided shall be understood to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of his candidates for public office whom he supports: Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibited in the Election Code. Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention by civil service officers and employees in partisan political activities an election offense, viz.: SECTION 261. Prohibited Acts. The following shall be guilty of an election offense: xxxx (i) Intervention of public officers and employees. Any officer or employee in the civil service, except those holding political offices; any officer, employee, or member of the Armed Forces of the Philippines, or any police force, special forces, home defense forces, barangay self-defense units and all other para-military units that now exist or which may hereafter be organized who, directly or indirectly, intervenes in any election campaign or engages in any partisan political activity, except to vote or to preserve public order, if he is a peace officer. The intent of both Congress and the framers of our Constitution to limit the participation of civil service officers and employees in partisan political activities is too plain to be mistaken. But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters."21 This is because elected public officials, by the very nature of their office, engage in partisan political activities almost all year round, even outside of the campaign period.22 Political partisanship is the inevitable essence of a political office, elective positions included.23

The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as express their views on political issues, or mention the names of certain candidates for public office whom they support. This is crystal clear from the deliberations of the Constitutional Commission, viz.: MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1, subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu thereof substitute the word CAMPAIGN. May I be allowed to explain my proposed amendment? THE PRESIDING OFFICER (Mr. Treas): Commissioner Aquino may proceed. MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended as a guarantee to the right to vote but as a qualification of the general prohibition against taking part in elections. Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an unconditional right. In other words, the Legislature can always pass a statute which can withhold from any class the right to vote in an election, if public interest so required. I would only like to reinstate the qualification by specifying the prohibited acts so that those who may want to vote but who are likewise prohibited from participating in partisan political campaigns or electioneering may vote. MR. FOZ: There is really no quarrel over this point, but please understand that there was no intention on the part of the Committee to disenfranchise any government official or employee. The elimination of the last clause of this provision was precisely intended to protect the members of the civil service in the sense that they are not being deprived of the freedom of expression in a political contest. The last phrase or clause might have given the impression that a government employee or worker has no right whatsoever in an election campaign except to vote, which is not the case. They are still free to express their views although the intention is not really to allow them to take part actively in a political campaign.24 IV. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Violate the Equal Protection Clause We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution. i. Farias, et al. v. Executive Secretary, et al. is Controlling In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case at bar violate the equal protection clause of the Constitution in Farias, et al. v. Executive Secretary, et al.25 In Farias, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative they are deemed resigned when they file their certificates of candidacy.

The petitioners in Farias thus brought an equal protection challenge against Section 14, with the end in view of having the deemed-resigned provisions "apply equally" to both elected and appointive officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled: The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous. The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner: The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority. Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities. By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification. Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis--vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.26 The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner.27 This doctrine is

one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process: It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.28 Our Farias ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum.29 This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the final conclusion, and to any statement as to the matter on which the decision is predicated. 30 For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it did. 31 As we held in Villanueva, Jr. v. Court of Appeals, et al.:32 A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make statements of the court regarding other propositions dicta.33 (italics supplied) ii. Classification Germane to the Purposes of the Law The Farias ruling on the equal protection challenge stands on solid ground even if reexamined. To start with, the equal protection clause does not require the universal application of the laws to all persons or things without distinction.34 What it simply requires is equality among equals as determined according to a valid classification.35 The test developed by jurisprudence here and yonder is that of reasonableness,36 which has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.37 Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis--vis elected officials is not germane to the purpose of the law, because "whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain," viz.:

For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.38 Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed "one step at a time."39 In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded.40 Nevertheless, as long as "the bounds of reasonable choice" are not exceeded, the courts must defer to the legislative judgment.41 We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class.42 Stated differently, the fact that a legislative classification, by itself, is underinclusive will not render it unconstitutionally arbitrary or invidious.43 There is no constitutional requirement that regulation must reach each and every class to which it might be applied;44 that the Legislature must be held rigidly to the choice of regulating all or none. Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is "palpably arbitrary or capricious." 45 He must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment,46 such that the constitutionality of the law must be sustained even if the reasonableness of the classification is "fairly debatable."47 In the case at bar, the petitioners failed and in fact did not even attempt to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis: ... [I]t is not sufficient grounds for invalidation that we may find that the statutes distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment.48 In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I submit that there is. An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people.49 It involves the choice or selection of candidates to public office by popular vote.50 Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will.51 (emphasis in the original) In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the least.

The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis--vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislatures power to make the deemed-resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint. iii. Mancuso v. Taft Has Been Overruled Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and extensively cited, Mancuso v. Taft.52 This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed: (1) The right to run for public office is "inextricably linked" with two fundamental freedoms freedom of expression and association; (2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection review; and (3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional. It then concluded with the exhortation that since "the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit." Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme Court effectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al. 53 and Broadrick, et al. v. State of Oklahoma, et al., 54 the United States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal55 and state56 employees from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal from employment and possible criminal sanctions. The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees, the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees expression interferes with the maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered by any statutory restrictions. 57 Therefore, insofar as government employees are concerned, the correct standard of review is an interestbalancing approach, a means-end scrutiny that examines the closeness of fit between the governmental interests and the prohibitions in question.58 Letter Carriers elucidated on these principles, as follows: Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in

representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls. But, as the Court held in Pickering v. Board of Education,59 the government has an interest in regulating the conduct and the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees. Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act. It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government. There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent. Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion . . .. Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it.

Neither the right to associate nor the right to participate in political activities is absolute in any event.60 x x x xxxx As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied) Broadrick likewise definitively constitutionally permissible, viz.: stated that the assailed statutory provision is

Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from political extortion. Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else. We have held today that the Hatch Act is not impermissibly vague. 61 We have little doubt that s 818 is similarly not so vague that men of common intelligence must necessarily guess at its meaning.62 Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being an officer or member of a partisan political club or a candidate for any paid public office. It forbids solicitation of contributions for any political organization, candidacy or other political purpose and taking part in the management or affairs of any political party or in any political campaign. Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as partisan, or take part in, or affairs of political parties. But what was said in Letter Carriers, is applicable here: there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x xxxx [Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here. xxxx The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct-

even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effectat best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate. x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied) It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were decided based on a different set of facts," viz.: In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against "active participation in political management or political campaigns." The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club. In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahomas Merit System of Personnel Administration Act restricting the political activities of the States classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving

and distributing campaign posters in bulk. Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter. Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in the original) We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.: (1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island General Assembly. He assailed the constitutionality of 14.09(c) of the City Home Rule Charter, which prohibits "continuing in the classified service of the city after becoming a candidate for nomination or election to any public office." (2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Acts prohibition against "active participation in political management or political campaigns"63 with respect to certain defined activities in which they desired to engage. The plaintiffs relevant to this discussion are: (a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others, running in local elections for offices such as school board member, city council member or mayor; (b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in his local community for fear that his participation in a partisan election would endanger his job; and (c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act. The Hatch Act defines "active participation in political management or political campaigns" by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states: 30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied) Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation to these persons.64 (3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahomas Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that "[n]o employee in the classified service shall be a candidate for nomination or election to any paid public office" Violation of Section 818

results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility. Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals the same court that decided Mancuso to hold categorically and emphatically in Magill v. Lynch 65 that Mancuso is no longer good law. As we priorly explained: Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtuckets "Little Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed, 66 the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the governments interest in regulating both the conduct and speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a "balancing" test to determine whether limits on political activity by public employees substantially served government interests which were "important" enough to outweigh the employees First Amendment rights.67 It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court: The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis. xxxx What we are obligated to do in this case, as the district court recognized, is to apply the Courts interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process".68 It appears that the government may place limits on campaigning by public employees if the limits

substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied) Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows: In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified. A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots. The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again,

it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways. In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted) The court, however, remanded the case to the district court for further proceedings in respect of the petitioners overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be taken lightly, much less to be taken in the dark," the court held: The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct. The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee. The state of the record does not permit us to find overbreadth; indeed such a step is not

to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted) Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively been overruled.69 As it is no longer good law, the ponencias exhortation that "[since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit" is misplaced and unwarranted.70 Accordingly, our assailed Decisions submission that the right to run for public office is "inextricably linked" with two fundamental freedoms those of expression and association lies on barren ground. American case law has in fact never recognized a fundamental right to express ones political views through candidacy,71 as to invoke a rigorous standard of review.72 Bart v. Telford73 pointedly stated that "[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either." Thus, ones interest in seeking office, by itself, is not entitled to constitutional protection.74 Moreover, one cannot bring ones action under the rubric of freedom of association, absent any allegation that, by running for an elective position, one is advancing the political ideas of a particular set of voters.75 Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity). These are interests that are important enough to outweigh the nonfundamental right of appointive officials and employees to seek elective office.1avvphi1 En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing 76 and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al.77 to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains: U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular officials, as distinguished from all others,78 under a classification that is germane to the purposes of the law. These resignto-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original) This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not because they referred to specified or particular officials (vis--vis a general class); the questioned provisions were found valid precisely because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court: Article XVI, 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected

office, unless the unexpired portion of the current term is one year or less. The burdens that 65 imposes on candidacy are even less substantial than those imposed by 19. The two provisions, of course, serve essentially the same state interests. The District Court found 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to 65 and why others are not. As with the case of 19, we conclude that 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme. The history behind 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years. Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by 11 or 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied) Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket approval of restrictions on the right of public employees to become candidates for public office" out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis--vis the specific prohibition assailed. The Court held: The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited from expressing their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics supplied) Indeed, the Morial court even quoted Broadrick and stated that: In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the

positions upon which such restrictions are placed. (citations omitted) V. Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Suffer from Overbreadth Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.: (1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of influence that may be attendant thereto;79 and (2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level. Again, on second look, we have to revise our assailed Decision. i. Limitation on Candidacy Regardless of Incumbent Appointive Officials Position, Valid According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto. Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official running for elective office holds an influential post. Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered powers of government workers" so as to give itself and its incumbent workers an "unbreakable grasp on the reins of power."80 As elucidated in our prior exposition:81 Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable even innocuous particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging central party structure to advance its own agenda through a "carefully orchestrated use of [appointive and/or elective] officials" coming from various levels of the bureaucracy. [T]he avoidance of such a "politically active public work force" which could give an emerging political machine an "unbreakable grasp on the reins of power" is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted) ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.

This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics [so as] to warrant distinctive treatment,"82 so that restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad. Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.: A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local Elections.83 Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable. Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices. The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the only elections in this country which involve nonpartisan public offices.84 In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states: Section 39. Certificate of Candidacy. No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate. xxxx Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office. Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. 85 In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained:

In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general.86 Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the overbreadth must not only be real, but substantial as well, judged in relation to the statutes plainly legitimate sweep.87 In operational terms, measuring the substantiality of a statutes overbreadth would entail, among other things, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. 88 In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. 89 The question is a matter of degree. 90 Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e. the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute.91 The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the dark,92 especially since an overbreadth finding in this case would effectively prohibit the State from enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe.93 This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and only as a last resort.94 In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct to go unpunished.95 Facial overbreadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions that would cure, or at least substantially reduce, the alleged overbreadth of the statute.96 In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.a1f In this light, the conceivably impermissible applications of the challenged statutes which are, at best, bold predictions cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its power and interest to proscribe. 97 Instead, the more prudent approach would be to deal with these conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of the statute itself.98 Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts.99 Several COMELEC election officers had likewise filed their Certificates of

Candidacy in their respective provinces.100 Even the Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009101 even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors, 102 who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers.103 The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor. For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad. IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondents and the intervenors Motions for Reconsideration; REVERSE and SET ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code. SO ORDERED. REYNATO S. PUNOChief Justice EN BANC G.R. No. 153266 March 18, 2010

VICTORIA C. GUTIERREZ, JOEL R. PEREZ, ARACELI L. YAMBOT, CORAZON F. SORIANO, LORNA P. TAMOR, ROMEO S. CONSIGNADO, DIVINA R. SULIT, ESTRELITA F. IRESARE, ROSALINDA L. ALPAY, AUREA L. ILAGAN AND ALL THE OTHER CONCERNED EMPLOYEES OF THE OFFICE OF THE SOLICITOR GENERAL, Petitioners, vs.DEPARTMENT OF BUDGET AND MANAGEMENT, HONORABLE SECRETARY EMILIA T. BONCODIN AND DIRECTOR LUZ M. CANTOR, Respondents,UNIVERSITY OF THE PHILIPPINES, AMADO EUROPA, MERCEDITA REYES, CONCHITA ABARCAR, LUCIO ABERIN, BIENVENIDO BIONG, SOLOMON CELIZ, WILFREDO CORNEL, TOMAS FORIO, ROGELIO JUNTERIAL, JAIME PERALTA, PILAR RILLAS, WILFREDO SAGUN, JESUS SUGUITAN, LUIS TORRES, JOSE VERSOZA AND ALL THE OTHER CONCERNED INCUMBENT AND RETIRED EMPLOYEES OF THE SOCIAL SECURITY SYSTEM v. SOCIAL SECURITY SYSTEM*** CONSUELO A. TAGARO, REYNALDO S. CALLANO, AIDA A. MARTINEZ, PRISCILLA P. COSTES, RICELI C. MENDOZA, ARISTON CALVO, SAMSON L. MOLAO, MANUEL SABUTAN, VILMA GONZALES, RUTH C. MAPANAO, NELSON M. BELGIRA, JESUS ANTONIO G. DERIJE v. UNIVERSITY OF SOUTHERN MINDANAO*** CONFEDERATION OF INDEPENDENT UNIONS IN THE PUBLIC SECTOR (CIU) ESTHER I. ABADIANO AND OTHER FORTY ONE THOUSAND INDIVIDUAL TEACHERS INTERVENORS ELPIDIO F. FERRER, MARIKINA CITY FEDERATION OF PUBLIC SCHOOL TEACHERS, INC., REPRESENTED BY ITS PRESIDENT ELPIDIO F. FERRER, AND ALL OTHER INDIVIDUAL PUBLIC SCHOOL TEACHERS IN CENTRAL LUZON, NORTHERN LUZON, SOUTHERN TAGALOG, NATIONAL CENTRAL REGION, CARR AND MINDANAO REPRESENTED BY THEIR RESPECTIVE ATTORNEYS-INFACT, ATTORNEYS DANTE ILAYA AND VIRGINIA SUAREZ-PINLAC AND ACTION AND SOLIDARITY FOR THE EMPOWERMENT OF TEACHERS (ASSERT), REPRESENTED BY ITS PRESIDENT AMABLE TUIBEIO, ET AL. HARRIS M. SINOLINDING, KALANTONGAN P. AKIL, DAUNDI B. BAKONG, TERESITA C. DE GUZMAN, QUEENIE A. HABIBUN, JOSE T. MAUN, VIVIENLE P. MARAGGUN, SAAVEDRA M. MANTIKAYAN, GIJIT C. PARON, IRWIN R. QUINAIN, DATUMANONG O. TAGITICAN AND HYDIE P. WONG, AND ALL OTHER CONCERNED EMPLOYEES OF THE COTABATO FOUNDATION COLLEGE OF SCIENCE AND TECHNOLOGY (CFCST) v. COTABATO FOUNDATION COLLEGE OF SCIENCE AND TECHNOLOGY AND DEPARTMENT OF BUDGET AND MANAGEMENT*** FRANCISCA C. CASTRO, DARIO C. VARGAS, MA. DEBBIE M. RESMA, RAMON P. CASIL, TERESITA C. BUSADRE, CRISTINA V. MANALO, SAUL SAN RAMON, ALEXIS R. REBURIANO, ROSALITO D. ROSA, DR. FERNANDO C. JAVIER, DR. ROSEMARIE M. YAGUIE, DR. GIL T. MAGBANUA, AND ALL OTHER CONCERNED PUBLIC SCHOOL TEACHERS OF QUEZON CITY v. DEPARTMENT OF BUDGET AND MANAGEMENT*** WILMA Q. NOBLEZA, ELEANOR M. CASTRO, JOSE B. BUSTILLO, JR., ABELARDO E. DE GUZMAN, EDWIN F. FABRIQUIER, ET AL. v. DBM SECRETARY ROMULO

NERI AND DEPARTMENT OF BUDGET AND MANAGEMENT*** EVA VALDEZ FERIA, WILHELMINA BALDO, ROSE MARIE L. YCASA, GLORIA G. IGNACIO AND HJI. AKMAD A. ALSAD AND OTHER TWELVE THOUSAND FIVE HUNDRED INDIVIDUAL TEACHERS BUREAU OF PLANT INDUSTRY EMPLOYEES ASSOCIATION, MARY ANN GUERRERO, ET AL. Intervenors. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 159007 ESTRELLITA C. AMPONIN, JUDITH A. CUDAL, ROMEO A. PAGALAN, MARISSA F. PARIAS, AND RAYMOND F. FLORES, ET AL., Petitioners, vs.COMMISSION ON AUDIT, GUILERMO N. CARAGUE, IN HIS CAPACITY AS CHAIRMAN, RAUL C. FLORES, IN HIS CAPACITY AS COMMISSIONER, COMMISSION ON AUDIT, AND EMMANUEL M. DALMAN, IN HIS CAPACITY AS COMMISSIONER, COMMISSION ON AUDIT, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 159029 AUGUSTO R. NIEVES, BONIFACIO H. ATIVO, TARCELA P. DETERA, NILDA G. CIELO, ANTHONY M. BRAVO, MARIA LOURDES G. BARROZO, ANTONIO E. FUENTES, ALFREDO D. DONOR, RICO B. NAVA, SR., DOLORES C. HUIDEM AND ALL THE OTHER CONCERNED EMPLOYEES OF THE SORSOGON STATE COLLEGE, Petitioners, vs.DEPARTMENT OF BUDGET AND MANAGEMENT AND HONORABLE SECRETARY EMILIA T. BONCODIN, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 170084 KAPISANAN NG MGA MANGGAGAWA SA BUREAU OF AGRICULTURAL STATISTICS (KMB), EVELYN C. TIDON, RIPOL O. ABALOS, BEATRIZ L. HUBILLA, MA. CHERYL J. TAJONERA, LOLITA DE HERNANDEZ, FLORA M. MABAMBA, DELILAH G. BASSIG AND ALL CONCERNED INCUMBENT AND RETIRED EMPLOYEES OF THE BUREAU OF AGRICULTURAL STATISTICS, DEPARTMENT OF AGRICULTURE, Petitioners, vs.DEPARTMENT OF BUDGET AND MANAGEMENT AND HONORABLE SECRETARY ROMULO NERI***, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 172713 NATIONAL HOUSING AUTHORITY, Petitioner, vs.EPIFANIO P. RECANA, MERCEDES AMURAO, ERASMO APOSTOL, FLORENDO ASUNCION, FIORELLO JOSEFINA BALTAZAR, ET AL., Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 173119 INSURANCE COMMISSION OFFICERS AND EMPLOYEES, REPRESENTED BY INSURANCE COMMISSION EMPLOYEES WELFARE ASSOCIATION (ICEWA), ET AL., Petitioners, vs. DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HONORABLE SECRETARY ROLANDO G. ANDAYA, JR., Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 176477 FIBER INDUSTRY DEVELOPMENT AUTHORITY EMPLOYEES ASSOCIATION (FIDAEA), REMEDIOS V.J. ABGONA, CELERINA T. HILARIO, QUIRINO U. SANTOS, GRACE AURORA F.

PASTORES, RHISA V. PEGENIA, ET AL., Petitioners, vs.DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HONORABLE SECRETARY ROLANDO G. ANDAYA, JR.***, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 177990 BUREAU OF ANIMAL INDUSTRY EMPLOYEES ASSOCIATION (BAIEA), LORY C. BANGALISAN, EDGARDO VINCULADO, LORENZO J. ABARCA, ROLANDO M. VASQUEZ, ALFREDO B. DUCUSIN, ET AL., Petitioners, vs.DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HONORABLE SECRETARY ROLANDO G. ANDAYA, JR.***, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x A.M. No. 06-4-02-SB RE: REQUEST OF SANDIGANBAYAN FOR AUTHORITY TO USE THEIR SAVINGS TO PAY THEIR COLA DIFFERENTIAL FROM JULY 1, 1989 TO MARCH 16, 1999, DECISION ABAD, J.: These consolidated cases question the inclusion of certain allowances and fringe benefits into the standardized salary rates for offices in the national government, state universities and colleges, and local government units as required by the Compensation and Position Classification Act of 1989 and implemented through the challenged National Compensation Circular 59 (NCC 59). The Facts and the Case Congress enacted in 1989 Republic Act (R.A.) 6758, called the Compensation and Position Classification Act of 1989 to rationalize the compensation of government employees. Its Section 12 directed the consolidation of allowances and additional compensation already being enjoyed by employees into their standardized salary rates. But it exempted certain additional compensations that the employees may be receiving from such consolidation. Thus: Section 12. Consolidation of Allowances and Compensation. -- All allowances, except for representation and transportation allowances; clothing and laundry allowances; subsistence allowance of marine officers and crew on board government vessels and hospital personnel; hazard pay; allowances of foreign service personnel stationed abroad; and such other additional compensation not otherwise specified herein as may be determined by the DBM, shall be deemed included in the standardized salary rates herein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized. Pursuant to the above, the Department of Budget and Management (DBM) issued NCC 59 dated September 30, 1989,1 covering the offices of the national government, state universities and colleges, and local government units. NCC 59 enumerated the specific allowances and additional compensations which were deemed integrated in the basic salaries and these included the Cost of Living Allowance (COLA) and Inflation Connected Allowance (ICA). The DBM re-issued and published NCC 59 on May 3, 2004.2 The DBM also issued Corporate Compensation Circular (CCC) 10 dated October 2, 1989, 3 covering all government-owned or controlled corporations and government financial institutions. The DBM re-issued this circular on February 15, 19994 and published it on March 16, 1999. Accordingly, the Commission on Audit (COA) disallowed the payments of honoraria and other allowances which were deemed integrated into the standardized

salary rates. Employees of government-owned or controlled corporations questioned the validity of CCC 10 due to its non-publication. In De Jesus v. Commission on Audit,5 this Court declared CCC 10 ineffective because of such non-publication. Until then, it ordered the COA to pass on audit the employees honoraria which they were receiving prior to the effectivity of R.A. 6758. Meanwhile, the DBM also issued Budget Circular 2001-03 dated November 12, 2001,6 clarifying that only the exempt allowances under Section 12 of R.A. 6758 may continue to be granted the employees; all others were deemed integrated in the standardized salary rates. Thus, the payment of allowances and compensation such as COLA, amelioration allowance, and ICA, among others, which were already deemed integrated in the basic salary were unauthorized. The Courts ruling in subsequent cases involving government-owned or controlled corporations followed the De Jesus ruling. On May 16, 2002 employees of the Office of the Solicitor General filed a petition for certiorari and mandamus in G.R. 153266, questioning the propriety of integrating their COLA into their standardized salary rates. Employees of other offices of the national government followed suit. In addition, petitioners in G.R. 159007 questioned the disallowance of the allowances and fringe benefits that the COA auditing personnel assigned to the Government Service Insurance System (GSIS) used to get. Petitioners in G.R. 173119 questioned the disallowance of the ICA that used to be paid to the officials and employees of the Insurance Commission. The Court caused the consolidation of the petitions and treated them as a class suit for all government employees, excluding the employees of government-owned or controlled corporations and government financial institutions.7 On October 26, 2005 the DBM issued National Budget Circular 2005-5028 which provided that all Supreme Court rulings on the integration of allowances, including COLA, of government employees under R.A. 6758 applied only to specific government-owned or controlled corporations since the consolidated cases covering the national government employees are still pending with this Court. Consequently, the payment of allowances and other benefits to them, such as COLA and ICA, remained prohibited until otherwise provided by law or ruled by this Court. The circular further said that all agency heads and other responsible officials and employees found to have authorized the grant of COLA and other allowances and benefits already integrated in the basic salary shall be personally held liable for such payment. The Issues Presented The common issues presented in these consolidated cases are: 1. Whether or not the COLA should be deemed integrated into the standardized salary rates of the concerned government employees by virtue of Section 12 of R.A. 6758; 2. Whether or not the ICA may still be paid to officials and employees of the Insurance Commission; 3. Whether or not the GSIS may still pay the allowances and fringe benefits to COA auditing personnel assigned to it; 4. Whether or not the non-publication of NCC 59 dated September 30, 1989 in the Official Gazette or newspaper of general circulation nullifies the integration of the COLA into the standardized salary rates; and 5. Whether or not the grant of COLA to military and police personnel to the exclusion of other government employees violates the equal protection clause. The Courts Ruling One. Petitioners espouse the common theory that the DBM needs to promulgate rules

and regulations before the COLA that they were getting prior to the passage of R.A. 6758 can be deemed integrated in their standardized salary rates. Respondent DBM counters that R.A. 6758 already specified the allowances and benefits that were not to be integrated in the new salary rates. All other allowances, DBM adds, such as COLA, are deemed integrated into those salary rates. At the heart of the present controversy is Section 12 of R.A. 6758 which is quoted anew for clarity: Section 12. Consolidation of Allowances and Compensation. -- All allowances, except for representation and transportation allowances; clothing and laundry allowances; subsistence allowance of marine officers and crew on board government vessels and hospital personnel; hazard pay; allowances of foreign service personnel stationed abroad; and such other additional compensation not otherwise specified herein as may be determined by the DBM, shall be deemed included in the standardized salary rates herein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized. As will be noted from the first sentence above, "all allowances" were deemed integrated into the standardized salary rates except the following: (1) representation and transportation allowances; (2) clothing and laundry allowances; (3) subsistence allowances of marine officers and crew on board government vessels; (4) subsistence allowances of hospital personnel; (5) hazard pay; (6) allowances of foreign service personnel stationed abroad; and (7) such other additional compensation not otherwise specified in Section 12 as may be determined by the DBM. But, while the provision enumerated certain exclusions, it also authorized the DBM to identify such other additional compensation that may be granted over and above the standardized salary rates. In Philippine Ports Authority Employees Hired After July 1, 1989 v. Commission on Audit,9 the Court has ruled that while Section 12 could be considered self-executing in regard to items (1) to (6), it was not so in regard to item (7). The DBM still needed to amplify item (7) since one cannot simply assume what other allowances were excluded from the standardized salary rates. It was only upon the issuance and effectivity of the corresponding implementing rules and regulations that item (7) could be deemed legally completed. Delegated rule-making is a practical necessity in modern governance because of the increasing complexity and variety of public functions. Congress has endowed administrative agencies like respondent DBM with the power to make rules and regulations to implement a given legislation and effectuate its policies.10 Such power is, however, necessarily limited to what the law provides. Implementing rules and regulations cannot extend the law or expand its coverage, as the power to amend or repeal a statute belongs to the legislature. Administrative agencies implement the broad policies laid down in a law by "filling in" only its details. The regulations must be germane to the objectives and purposes of the law and must conform to the standards prescribed by law.11 In this case, the DBM promulgated NCC 59 [and CCC 10]. But, instead of identifying some of the additional exclusions that Section 12 of R.A. 6758 permits it to make, the DBM made a list of what allowances and benefits are deemed integrated into the standardized

salary rates. More specifically, NCC 59 identified the following allowances/additional compensation that are deemed integrated: (1) Cost of Living Allowance (COLA); (2) Inflation connected allowance; (3) Living Allowance; (4) Emergency Allowance; (5) Additional Compensation of Public Health Nurses assigned to public health nursing; (6) Additional Compensation of Rural Health Physicians; (7) Additional Compensation of Nurses in Malacaang Clinic; (8) Nurses Allowance in the Air Transportation Office; (9) Assignment Allowance of School Superintendents; (10) Post allowance of Postal Service Office employees; (11) Honoraria/allowances which are regularly given except the following: a. those for teaching overload; b. in lieu of overtime pay; c. for employees on detail with task forces/special projects; d. researchers, experts and specialists who are acknowledged authorities in their field of specialization; e. lecturers and resource persons; f. Municipal Treasurers deputized by the Bureau of Internal Revenue to collect and remit internal revenue collections; and g. Executive positions in State Universities and Colleges filled by designation from among their faculty members. (12) Subsistence Allowance of employees except those authorized under EO [Executive Order] 346 and uniformed personnel of the Armed Forces of the Philippines and Integrated National Police; (13) Laundry Allowance of employees except those hospital/sanitaria personnel who attend directly to patients and who by the nature of their duties are required to wear uniforms, prison guards and uniformed personnel of the Armed Forces of the Philippines and Integrated National Police; and (14) Incentive allowance/fee/pay except those Appropriations Act and Section 33 of P.D. 807. authorized under the General

The drawing up of the above list is consistent with Section 12 above. R.A. 6758 did not prohibit the DBM from identifying for the purpose of implementation what fell into the class of "all allowances." With respect to what employees benefits fell outside the term apart from those that the law specified, the DBM, said this Court in a case, 12 needed to promulgate rules and regulations identifying those excluded benefits. This leads to the inevitable conclusion that until and unless the DBM issues such rules and regulations, the enumerated exclusions in items (1) to (6) remain exclusive. Thus so, not being an

enumerated exclusion, COLA is deemed already incorporated in the standardized salary rates of government employees under the general rule of integration. In any event, the Court finds the inclusion of COLA in the standardized salary rates proper. In National Tobacco Administration v. Commission on Audit, 13 the Court ruled that the enumerated fringe benefits in items (1) to (6) have one thing in commonthey belong to one category of privilege called allowances which are usually granted to officials and employees of the government to defray or reimburse the expenses incurred in the performance of their official functions. Consequently, if these allowances are consolidated with the standardized salary rates, then the government official or employee will be compelled to spend his personal funds in attending to his duties. On the other hand, item (7) is a "catch-all proviso" for benefits in the nature of allowances similar to those enumerated.14 Clearly, COLA is not in the nature of an allowance intended to reimburse expenses incurred by officials and employees of the government in the performance of their official functions. It is not payment in consideration of the fulfillment of official duty.15 As defined, cost of living refers to "the level of prices relating to a range of everyday items"16 or "the cost of purchasing those goods and services which are included in an accepted standard level of consumption."17 Based on this premise, COLA is a benefit intended to cover increases in the cost of living. Thus, it is and should be integrated into the standardized salary rates. Two. Petitioning officials and employees of the Insurance Commission question the disallowance of their ICA on the ground that it is a benefit similar to the educational assistance granted by the Court in National Tobacco Administration18 based on the second sentence of Section 12 of R.A. 6758 that reads: Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized. In National Tobacco Administration, the Court interpreted this provision as referring to benefits in the nature of financial assistance, or a bonus or other payment made to employees in addition to guaranteed hourly wages, as contradistinguished from the allowance in the first sentence, which cannot, strictly speaking, be treated as a bonus or additional income. In financial assistance, reimbursement is not necessary, while in the case of allowance, reimbursement is required.19 To be entitled to the financial assistance under this provision, the following requisites must concur: (1) the recipients were incumbents when R.A. 6758 took effect on July 1, 1989; (2) they were in fact, receiving the same, at the time; and (3) such additional compensation is distinct and separate from the excepted allowances under CCC 10, as it is not integrated into the standardized salary rates.201awph!1 In this case, ICA, like COLA, falls under the general rule of integration. The DBM specifically identified it as an allowance or additional compensation integrated into the standardized salary rates. By its very nature, ICA is granted due to inflation and upon determination that the current salary of officials and employees of the Insurance Commission is insufficient to address the problem. The DBM determines whether a need for ICA exists and the fund from which it will be taken. The Insurance Commission cannot, on its own, determine what allowances are necessary and then grant them to its officials and employees without the approval of the DBM. Moreover, ICA does not qualify under the second sentence of Section 12 of R.A. 6758 since the employees failed to show that they were actually receiving it as of June 30, 1989 or immediately prior to the implementation of R.A. 6758. The Commissioner of the Insurance Commission requested for authority to grant ICA from the DBM for the years 198121 and 198422 only. There is no evidence that the ICA were paid in subsequent years. In the absence of a subsequent authorization granting or restoring ICA to the officials and employees of the Insurance Commission, there can be no valid legal basis for its continued grant from July 1, 1986.

Three. Petitioners COA auditing personnel assigned to the GSIS question the disallowance of their allowances and fringe benefits based on the allowances given to GSIS personnel, namely: 5.6. Payment of other allowances/fringe benefits and all other forms of compensation granted on top of basic salary, whether in cash or in kind, x x x shall be discontinued effective November 1, 1989. Payment made for such allowances/fringe benefits after said date shall be considered as illegal disbursement of public funds. They alleged that since CCC 10 was declared ineffective, the disallowance should be lifted until the issuance was published on March 16, 1999. But, although petitioners alleged that the subject benefits were withheld from them on the basis of CCC 10, it is clear that the benefits were actually withheld from them on the basis of Section 18 of R.A. 6758, which reads: Section 18. Additional Compensation of Commission on Audit Personnel and of Other Agencies. - In order to preserve the independence and integrity of the Commission on Audit (COA), its officials and employees are prohibited from receiving salaries, honoraria, bonuses, allowances or other emoluments from any government entity, local government unit, and government-owned and controlled corporations, and government financial institution, except those compensation paid directly by the COA out of its appropriations and contributions.1avvphi1 Government entities, including government-owned or controlled corporations including financial institutions and local government units are hereby prohibited from assessing or billing other government entities, government-owned or controlled corporations including financial institutions or local government units for services rendered by its officials and employees as part of their regular functions for purposes of paying additional compensation to said officials and employees. As aptly pointed out by the COA, Section 18 of R.A. 6758 was complete in itself and was operative without the aid of any supplementary or enabling legislation.23 The implementing rules and regulations were necessary only for those provisions, such as item (7) of Section 12, which requires further clarification and interpretation. Thus, notwithstanding the initial non-publication of CCC 10, the disallowance of petitioners allowances and fringe benefits as COA auditing personnel assigned to the GSIS was valid upon the effectivity of R.A. 6758. In Tejada v. Domingo,24 this Court explained that COA personnel assigned to auditing units of government-owned or controlled corporations or government financial institutions can receive only such salaries, allowances or fringe benefits paid directly by the COA out of its appropriations and contributions. The contributions referred to are the cost of audit services which did not include the extra emoluments or benefits, such as bank equity pay, longevity pay, amelioration allowance, and meal allowance, which petitioners claim. The COA is further barred from assessing or billing government-owned or controlled corporations and government financial institutions for services rendered by its personnel as part of their regular audit functions for purposes of paying additional compensation to such personnel. In upholding the disallowance, the Court ruled in Villarea v. Commission on Audit25 that valid reasons exist to treat COA officials differently from other national government officials. The primary function of an auditor is to prevent irregular, unnecessary, excessive or extravagant expenditures of government funds. To be able to properly perform their constitutional mandate, COA officials need to be insulated from unwarranted influences, so that they can act with independence and integrity. Rightly so, the disallowance in this case is valid. Four. Petitioners argue that since CCC 10 dated October 2, 1989 covering all government-owned or controlled corporations and government financial institutions was ineffective until its re-issuance and publication on March 16, 1999, its counterpart, NCC

59 dated September 30, 1989 covering the offices of the national government, state universities and colleges, and local government units should also be regarded as ineffective until its re-issuance and publication on May 3, 2004. Thus, the COLA should not be deemed integrated into the standardized salary rates from 1989 to 2004. Respondents counter that the fact that NCC 59 was not published should not be considered as an obstacle to the integration of COLA into the standardized salary rates. Accordingly, Budget Circular 2001-03, insofar as it reiterates NCC 59, should not be treated as ineffective since it merely reaffirms the fact of consolidation of COLA into the employees salary as mandated by Section 12 of R.A. 6758. It is a settled rule that publication is required as a condition precedent to the effectivity of a law to inform the public of its contents before their rights and interests are affected by the same.26 Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.27 Nonetheless, as previously discussed, the integration of COLA into the standardized salary rates is not dependent on the publication of CCC 10 and NCC 59. This benefit is deemed included in the standardized salary rates of government employees since it falls under the general rule of integration"all allowances." More importantly, the integration was not by mere legal fiction since it was factually integrated into the employees salaries. Records show that the government employees were informed by their respective offices of their new position titles and their corresponding salary grades when they were furnished with the Notices of Position Allocation and Salary Adjustment (NPASA). The NPASA provided the breakdown of the employees gross monthly salary as of June 30, 1989 and the composition of his standardized pay under R.A. 6758.28 Notably, the COLA was considered part of the employees monthly income. In truth, petitioners never really suffered any diminution in pay as a consequence of the consolidation of COLA into their standardized salary rates. There is thus nothing in these cases which can be the subject of a back pay since the amount corresponding to COLA was never withheld from petitioners in the first place.29 Consequently, the non-publication of CCC 10 and NCC 59 in the Official Gazette or newspaper of general circulation does not nullify the integration of COLA into the standardized salary rates upon the effectivity of R.A. 6758. As the Court has said in Philippine International Trading Corporation v. Commission on Audit,30 the validity of R.A. 6758 should not be made to depend on the validity of its implementing rules. Five. Petitioners contend that the continued grant of COLA to military and police personnel under CCC 10 and NCC 59 to the exclusion of other government employees violates the equal protection clause of the Constitution. But as respondents pointed out, while it may appear that petitioners are questioning the constitutionality of these issuances, they are in fact attacking the very constitutionality of Section 11 of R.A. 6758. It is actually this provision which allows the uniformed personnel to continue receiving their COLA over and above their basic pay, thus: Section 11. Military and Police Personnel. - The base pay of uniformed personnel of the Armed Forces of the Philippines and the Integrated National Police shall be as prescribed in the salary schedule for these personnel in R.A. 6638 and R.A. 6648. The longevity pay of these personnel shall be as prescribed under R.A. 6638, and R.A. 1134 as amended by R.A. 3725 and R.A. 6648: Provided, however, That the longevity pay of uniformed personnel of the Integrated National Police shall include those services rendered as uniformed members of the police, jail and fire departments of the local government units prior to the police integration. All existing types of allowances authorized for uniformed personnel of the Armed Forces of the Philippines and Integrated National Police such as cost of living allowance, longevity pay, quarters allowance, subsistence allowance, clothing allowance, hazard pay and other allowances shall continue to be authorized.

Nothing is more settled than that the constitutionality of a statute cannot be attacked collaterally because constitutionality issues must be pleaded directly and not collaterally.31 In any event, the Court is not persuaded that the continued grant of COLA to the uniformed personnel to the exclusion of other national government officials run afoul the equal protection clause of the Constitution. The fundamental right of equal protection of the laws is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another. The classification must also be germane to the purpose of the law and must apply to all those belonging to the same class.32 To be valid and reasonable, the classification must satisfy the following requirements: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all members of the same class.33 It is clear from the first paragraph of Section 11 that Congress intended the uniformed personnel to be continually governed by their respective compensation laws. Thus, the military is governed by R.A. 6638,34 as amended by R.A. 916635 while the police is governed by R.A. 6648,36 as amended by R.A. 6975.37 Certainly, there are valid reasons to treat the uniformed personnel differently from other national government officials. Being in charged of the actual defense of the State and the maintenance of internal peace and order, they are expected to be stationed virtually anywhere in the country. They are likely to be assigned to a variety of low, moderate, and high-cost areas. Since their basic pay does not vary based on location, the continued grant of COLA is intended to help them offset the effects of living in higher cost areas.38 WHEREFORE, the Court GRANTS the petition in G.R. No. 172713 and DENIES the petitions in G.R. 153266, 159007, 159029, 170084, 173119, 176477, 177990 and A.M. 06-4-02SB. SO ORDERED. ROBERTO A. ABADAssociate Justice SECOND DIVISION G.R. No. 149907 April 16, 2009

ROMA DRUG and ROMEO RODRIGUEZ, as Proprietor of ROMA DRUG, Petitioners, vs.THE REGIONAL TRIAL COURT OF GUAGUA, PAMPANGA, THE PROVINCIAL PROSECUTOR OF PAMPANGA, BUREAU OF FOOD & DRUGS (BFAD) and GLAXO SMITHKLINE, Respondents. DECISION TINGA, J.: On 14 August 2000, a team composed of the National Bureau of Investigation (NBI) operatives and inspectors of the Bureau of Food and Drugs (BFAD) conducted a raid on petitioner Roma Drug, a duly registered sole proprietorship of petitioner Romeo Rodriguez (Rodriguez) operating a drug store located at San Matias, Guagua, Pampanga. The raid was conducted pursuant to a search warrant1 issued by the Regional Trial Court (RTC), Branch 57, Angeles City. The raiding team seized several imported medicines, including Augmentin (375mg.) tablets, Orbenin (500mg.) capsules, Amoxil (250mg.) capsules and Ampiclox (500mg.).2 It appears that Roma Drug is one of six drug stores which were raided on or around the same time upon the request of SmithKline Beecham Research Limited

(SmithKline), a duly registered corporation which is the local distributor of pharmaceutical products manufactured by its parent London-based corporation. The local SmithKline has since merged with Glaxo Wellcome Phil. Inc to form Glaxo SmithKline, private respondent in this case. The seized medicines, which were manufactured by SmithKline, were imported directly from abroad and not purchased through the local SmithKline, the authorized Philippine distributor of these products. The NBI subsequently filed a complaint against Rodriguez for violation of Section 4 (in relation to Sections 3 and 5) of Republic Act No. 8203, also known as the Special Law on Counterfeit Drugs (SLCD), with the Office of the Provincial Prosecutor in San Fernando, Pampanga. The section prohibits the sale of counterfeit drugs, which under Section 3(b) (3), includes "an unregistered imported drug product." The term "unregistered" signifies the lack of registration with the Bureau of Patent, Trademark and Technology Transfer of a trademark, tradename or other identification mark of a drug in the name of a natural or juridical person, the process of which is governed under Part III of the Intellectual Property Code. In this case, there is no doubt that the subject seized drugs are identical in content with their Philippine-registered counterparts. There is no claim that they were adulterated in any way or mislabeled at least. Their classification as "counterfeit" is based solely on the fact that they were imported from abroad and not purchased from the Philippineregistered owner of the patent or trademark of the drugs. During preliminary investigation, Rodriguez challenged the constitutionality of the SLCD. However, Assistant Provincial Prosecutor Celerina C. Pineda skirted the challenge and issued a Resolution dated 17 August 2001 recommending that Rodriguez be charged with violation of Section 4(a) of the SLCD. The recommendation was approved by Provincial Prosecutor Jesus Y. Manarang approved the recommendation.3 Hence, the present Petition for Prohibition questing the RTC-Guagua Pampanga and the Provincial Prosecutor to desist from further prosecuting Rodriguez, and that Sections 3(b) (3), 4 and 5 of the SLCD be declared unconstitutional. In gist, Rodriguez asserts that the challenged provisions contravene three provisions of the Constitution. The first is the equal protection clause of the Bill of Rights. The two other provisions are Section 11, Article XIII, which mandates that the State make "essential goods, health and other social services available to all the people at affordable cost;" and Section 15, Article II, which states that it is the policy of the State "to protect and promote the right to health of the people and instill health consciousness among them." Through its Resolution dated 15 October 2001, the Court issued a temporary restraining order enjoining the RTC from proceeding with the trial against Rodriguez, and the BFAD, the NBI and Glaxo Smithkline from prosecuting the petitioners.4 Glaxo Smithkline and the Office of the Solicitor General (OSG) have opposed the petition, the latter in behalf of public respondents RTC, Provincial Prosecutor and Bureau of Food and Drugs (BFAD). On the constitutional issue, Glaxo Smithkline asserts the rule that the SLCD is presumed constitutional, arguing that both Section 15, Article II and Section 11, Article XIII "are not self-executing provisions, the disregard of which can give rise to a cause of action in the courts." It adds that Section 11, Article XIII in particular cannot be work "to the oppression and unlawful of the property rights of the legitimate manufacturers, importers or distributors, who take pains in having imported drug products registered before the BFAD." Glaxo Smithkline further claims that the SLCD does not in fact conflict with the aforementioned constitutional provisions and in fact are in accord with constitutional precepts in favor of the peoples right to health. The Office of the Solicitor General casts the question as one of policy wisdom of the law that is, beyond the interference of the judiciary. 5 Again, the presumption of constitutionality of statutes is invoked, and the assertion is made that there is no clear and unequivocal breach of the Constitution presented by the SLCD. II.

The constitutional aspect of this petition raises obviously interesting questions. However, such questions have in fact been mooted with the passage in 2008 of Republic Act No. 9502, also known as the "Universally Accessible Cheaper and Quality Medicines Act of 2008".6 Section 7 of Rep. Act No. 9502 amends Section 72 of the Intellectual Property Code in that the later law unequivocally grants third persons the right to import drugs or medicines whose patent were registered in the Philippines by the owner of the product: Sec. 7. Section 72 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines, is hereby amended to read as follows: "Sec. 72. Limitations of Patent Rights. The owner of a patent has no right to prevent third parties from performing, without his authorization, the acts referred to in Section 71 hereof in the following circumstances: "72.1. Using a patented product which has been put on the market in the Philippines by the owner of the product, or with his express consent, insofar as such use is performed after that product has been so put on the said market: Provided, That, with regard to drugs and medicines, the limitation on patent rights shall apply after a drug or medicine has been introduced in the Philippines or anywhere else in the world by the patent owner, or by any party authorized to use the invention: Provided, further, That the right to import the drugs and medicines contemplated in this section shall be available to any government agency or any private third party; "72.2. Where the act is done privately and on a non-commercial scale or for a noncommercial purpose: Provided, That it does not significantly prejudice the economic interests of the owner of the patent; "72.3. Where the act consists of making or using exclusively for experimental use of the invention for scientific purposes or educational purposes and such other activities directly related to such scientific or educational experimental use; "72.4. In the case of drugs and medicines, where the act includes testing, using, making or selling the invention including any data related thereto, solely for purposes reasonably related to the development and submission of information and issuance of approvals by government regulatory agencies required under any law of the Philippines or of another country that regulates the manufacture, construction, use or sale of any product: Provided, That, in order to protect the data submitted by the original patent holder from unfair commercial use provided in Article 39.3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the Intellectual Property Office, in consultation with the appropriate government agencies, shall issue the appropriate rules and regulations necessary therein not later than one hundred twenty (120) days after the enactment of this law; "72.5. Where the act consists of the preparation for individual cases, in a pharmacy or by a medical professional, of a medicine in accordance with a medical shall apply after a drug or medicine has been introduced in the Philippines or anywhere else in the world by the patent owner, or by any party authorized to use the invention: Provided, further, That the right to import the drugs and medicines contemplated in this section shall be available to any government agency or any private third party; xxx7 The unqualified right of private third parties such as petitioner to import or possess "unregistered imported drugs" in the Philippines is further confirmed by the "Implementing Rules to Republic Act No. 9502" promulgated on 4 November 2008. 8 The relevant provisions thereof read: Rule 9. Limitations on Patent Rights. The owner of a patent has no right to prevent third parties from performing, without his authorization, the acts referred to in Section 71 of the IP Code as enumerated hereunder:

(i) Introduction in the Philippines or Anywhere Else in the World. Using a patented product which has been put on the market in the Philippines by the owner of the product, or with his express consent, insofar as such use is performed after that product has been so put on the said market: Provided, That, with regard to drugs and medicines, the limitation on patent rights shall apply after a drug or medicine has been introduced in the Philippines or anywhere else in the world by the patent owner, or by any party authorized to use the invention: Provided, further, That the right to import the drugs and medicines contemplated in this section shall be available to any government agency or any private third party. (72.1)1avvphi1 The drugs and medicines are deemed introduced when they have been sold or offered for sale anywhere else in the world. (n) It may be that Rep. Act No. 9502 did not expressly repeal any provision of the SLCD. However, it is clear that the SLCOs classification of "unregistered imported drugs" as "counterfeit drugs," and of corresponding criminal penalties therefore are irreconcilably in the imposition conflict with Rep. Act No. 9502 since the latter indubitably grants private third persons the unqualified right to import or otherwise use such drugs. Where a statute of later date, such as Rep. Act No. 9502, clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject that intention must be given effect.9 When a subsequent enactment covering a field of operation coterminus with a prior statute cannot by any reasonable construction be given effect while the prior law remains in operative existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails and the prior law yields to the extent of the conflict.10 Irreconcilable inconsistency between two laws embracing the same subject may exist when the later law nullifies the reason or purpose of the earlier act, so that the latter loses all meaning and function.11 Legis posteriors priores contrarias abrogant. For the reasons above-stated, the prosecution of petitioner is no longer warranted and the quested writ of prohibition should accordingly be issued. III. Had the Court proceeded to directly confront the constitutionality of the assailed provisions of the SLCD, it is apparent that it would have at least placed in doubt the validity of the provisions. As written, the law makes a criminal of any person who imports an unregistered drug regardless of the purpose, even if the medicine can spell life or death for someone in the Philippines. It does not accommodate the situation where the drug is out of stock in the Philippines, beyond the reach of a patient who urgently depends on it. It does not allow husbands, wives, children, siblings, parents to import the drug in behalf of their loved ones too physically ill to travel and avail of the meager personal use exemption allotted by the law. It discriminates, at the expense of health, against poor Filipinos without means to travel abroad to purchase less expensive medicines in favor of their wealthier brethren able to do so. Less urgently perhaps, but still within the range of constitutionally protected behavior, it deprives Filipinos to choose a less expensive regime for their health care by denying them a plausible and safe means of purchasing medicines at a cheaper cost. The absurd results from this far-reaching ban extends to implications that deny the basic decencies of humanity. The law would make criminals of doctors from abroad on medical missions of such humanitarian organizations such as the International Red Cross, the International Red Crescent, Medicin Sans Frontieres, and other like-minded groups who necessarily bring their own pharmaceutical drugs when they embark on their missions of mercy. After all, they are disabled from invoking the bare "personal use" exemption afforded by the SLCD. Even worse is the fact that the law is not content with simply banning, at civil costs, the importation of unregistered drugs. It equates the importers of such drugs, many of whom motivated to do so out of altruism or basic human love, with the malevolents who would alter or counterfeit pharmaceutical drugs for reasons of profit at the expense of public

safety. Note that the SLCD is a special law, and the traditional treatment of penal provisions of special laws is that of malum prohibitumor punishable regardless of motive or criminal intent. For a law that is intended to help save lives, the SLCD has revealed itself as a heartless, soulless legislative piece. The challenged provisions of the SLCD apparently proscribe a range of constitutionally permissible behavior. It is laudable that with the passage of Rep. Act No. 9502, the State has reversed course and allowed for a sensible and compassionate approach with respect to the importation of pharmaceutical drugs urgently necessary for the peoples constitutionally-recognized right to health. WHEREFORE, the petition is GRANTED in part. A writ of prohibition is hereby ISSUED commanding respondents from prosecuting petitioner Romeo Rodriguez for violation of Section 4 or Rep. Act No. 8203. The Temporary Restraining Order dated 15 October 2001 is hereby made PERMANENT. No pronouncements as to costs. SO ORDERED. DANTE O. TINGAAssociate Justice G.R. No. L-45685 November 16, 1937

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

LAUREL, J.: This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorari and of prohibition to the Court of First Instance of Manila so that this court may review the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the defendant Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and thereafter prohibit the said Court of First Instance from taking any further action or entertaining further the aforementioned application for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No. 41200). 1 Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of First Instance of Manila, who heard the application of the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case. The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both in the length of time spent by the court as well as in the volume in the testimony and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment

of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and two months of prision correccional to eight years of prision mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six months of prision correccional to seven years, six months and twenty-seven days of prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial which were denied on December 17, 1935, and final judgment was accordingly entered on December 18, 1935. The defendant thereupon sought to have the case elevated on certiorari to the Supreme Court of the United States but the latter denied the petition for certiorari in November, 1936. This court, on November 24, 1936, denied the petition subsequently filed by the defendant for leave to file a second alternative motion for reconsideration or new trial and thereafter remanded the case to the court of origin for execution of the judgment. The instant proceedings have to do with the application for probation filed by the herein respondent Mariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal record and that he would observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937. On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221, assuming that it has not been repealed by section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection of the laws for the reason that its applicability is not uniform throughout the Islands and because section 11 of the said Act endows the provincial boards with the power to make said law effective or otherwise in their respective or otherwise in their respective provinces. The private prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the private prosecution except with respect to the questions raised concerning the constitutionality of Act No. 4221. On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition for probation for the reason that: . . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes, en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto judicial. On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolution denying probation and a notice of intention to file a motion for reconsideration. An alternative motion for reconsideration or new trial was filed by

counsel on July 13, 1937. This was supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation and purely as a matter of courtesy to the person who invited me (him)." On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of execution of the judgment of this court in said case and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to said judgment. On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events, said motion should be denied with respect to certain attorneys signing the same who were members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an order requiring all parties including the movants for intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to the circumstances under which said motion for leave to intervene as amici curiae was signed and submitted to court was to have been heard on August 19, 1937. But at this juncture, herein petitioners came to this court on extraordinary legal process to put an end to what they alleged was an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent inability of the judicial machinery to make effective a final judgment of this court imposed on the defendant Mariano Cu Unjieng." The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary restraining order by this court on August 21, 1937. To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitioners allege that the respondent judge has acted without jurisdiction or in excess of his jurisdiction: I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the following reason: (1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces of the Philippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila. (2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special provision, the term "province" may be construed to include the City of Manila for the purpose of giving effect to laws of general application, it is also true that Act No. 4221 is not a law of general application because it is made to apply only to those provinces in which the respective provincial boards shall have provided for the salary of a probation officer. (3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it because it has provided for the salary of a probation officer as

required by section 11 thereof; it being immaterial that there is an Insular Probation Officer willing to act for the City of Manila, said Probation Officer provided for in section 10 of Act No. 4221 being different and distinct from the Probation Officer provided for in section 11 of the same Act. II. Because even if the respondent judge originally had jurisdiction to entertain the application for probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excess thereof in continuing to entertain the motion for reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application for probation, for the reason that: (1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of applications for probation. (2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became final and executory at the moment of its rendition. (3) No right on appeal exists in such cases. (4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the same. III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was convicted by final judgment of this court, which finding is not only presumptuous but without foundation in fact and in law, and is furthermore in contempt of this court and a violation of the respondent's oath of office as ad interim judge of first instance. IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he issued his order of June 28, 1937, denying the application for probation, to commit his co-respondent to jail. Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law. In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a system of probation for persons eighteen years of age or over who are convicted of crime, is unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal protection of the laws because it confers upon the provincial board of its province the absolute discretion to make said law operative or otherwise in their respective provinces, because it constitutes an unlawful and improper delegation to the provincial boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards, in contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First Instance of different provinces without uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221 not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to impugn the validity of its

own laws and the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum was filed by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the private prosecution may intervene in probation proceedings and may attack the probation law as unconstitutional; and that this court may pass upon the constitutional question in prohibition proceedings. Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge each and every one of the foregoing proposition raised by the petitioners. As special defenses, respondents allege: (1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of certiorari or of prohibition. (2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same remedy prayed for by them before the trial court and was still pending resolution before the trial court when the present petition was filed with this court. (3) That the petitioners having themselves raised the question as to the execution of judgment before the trial court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory that its resolution denying probation is unappealable. (4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the question as to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction while the Court of First Instance has assumed jurisdiction over the same upon motion of herein petitioners themselves. (5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction over the case and elevate the proceedings to this court, should not be tolerated because it impairs the authority and dignity of the trial court which court while sitting in the probation cases is "a court of limited jurisdiction but of great dignity." (6) That under the supposition that this court has jurisdiction to resolve the question submitted to and pending resolution by the trial court, the present action would not lie because the resolution of the trial court denying probation is appealable; for although the Probation Law does not specifically provide that an applicant for probation may appeal from a resolution of the Court of First Instance denying probation, still it is a general rule in this jurisdiction that a final order, resolution or decision of an inferior court is appealable to the superior court. (7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being appealable, the same had not become final and executory for the reason that the said respondent had filed an alternative motion for reconsideration and new trial within the requisite period of fifteen days, which motion the trial court was able to resolve in view of the restraining order improvidently and erroneously issued by this court.lawphi1.net (8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying probation is not final and unappealable when he presented his answer to the motion for reconsideration and agreed to the postponement of the hearing of the said motion. (9) That under the supposition that the order of the trial court denying probation is not appealable, it is incumbent upon the accused to file an action for the issuance of the writ of certiorari with mandamus, it appearing that the trial court, although it believed that

the accused was entitled to probation, nevertheless denied probation for fear of criticism because the accused is a rich man; and that, before a petition for certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a motion for reconsideration specifying the error committed so that the trial court could have an opportunity to correct or cure the same. (10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction within a reasonable time to correct or modify it in accordance with law and justice; that this power to alter or modify an order or resolution is inherent in the courts and may be exercise either motu proprio or upon petition of the proper party, the petition in the latter case taking the form of a motion for reconsideration. (11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said court cannot order execution of the same while it is on appeal, for then the appeal would not be availing because the doors of probation will be closed from the moment the accused commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827). In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an undue delegation of legislative power, does not infringe the equal protection clause of the Constitution, and does not encroach upon the pardoning power of the Executive. In an additional memorandum filed on the same date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free from constitutional objections and contend, in addition, that the private prosecution may not intervene in probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the Solicitor-General are estopped from questioning the validity of the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of this court and filed anew on November 5, 1937. This memorandum elaborates on some of the points raised by the respondents and refutes those brought up by the petitioners. In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that the court below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denying said application assumed the task not only of considering the merits of the application, but of passing upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation case may look into the circumstances attending the commission of the offense, this does not authorize it to reverse the findings and conclusive of this court, either directly or indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs, averments, and pleadings of the parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the intergrated judicial system of the nation. After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this court prefers to cut the Gordian knot and take up at once the two fundamental questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is constitutional. Considerations of these issues will involve a discussion of certain incidental questions raised by the parties. To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised

and presented inappropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.) The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the constitutionality of a statute may be raised by the petitioner in mandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto brought in the name of the Government of the Philippines. It has also been held that the constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an original action for certiorari and prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue was not met squarely by the respondent in a demurrer. A point was raised "relating to the propriety of the constitutional question being decided in original proceedings in prohibition." This court decided to take up the constitutional question and, with two justices dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to the Supreme Court of the United States which reversed the judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said: By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original jurisdiction over courts of first instance, when such courts are exercising functions without or in excess of their jurisdiction. It has been held by that court that the question of the validity of the criminal statute must usually be raised by a defendant in the trial court and be carried regularly in review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous persons and extensive property rights, and was likely to cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue to the act's validity promptly before it and decide in the interest of the orderly administration of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask a decision on the merits. In view of the broad powers in prohibition granted to that court under the Island Code, we acquiesce in the desire of the parties. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie whether the inferior court has jurisdiction independent of the statute the constitutionality of which is questioned, because in such cases the interior court having jurisdiction may itself determine the

constitutionality of the statute, and its decision may be subject to review, and consequently the complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.) Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which prescribes in detailed manner the procedure for granting probation to accused persons after their conviction has become final and before they have served their sentence. It is true that at common law the authority of the courts to suspend temporarily the execution of the sentence is recognized and, according to a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed the opinion that under the common law the power of the court was limited to temporary suspension, and brushed aside the contention as to inherent judicial power saying, through Chief Justice White: Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessions afford no ground for the contention as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the methods by it provided belongs to the executive department. Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the Philippine Legislature. It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where the question has not been properly brought to the attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue has been squarely presented not only before this court by the petitioners but also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court below, declined to pass upon the question on the ground that the private prosecutor, not being a party whose rights are affected by the statute, may not raise said question. The respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any attack made on the constitutionality of a statute by one who has no interest in defeating it because

his rights are not affected by its operation. The respondent judge further stated that it may not motu proprio take up the constitutional question and, agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits that the constitutional question was raised before it, it refused to consider the question solely because it was not raised by a proper party. Respondents herein reiterates this view. The argument is advanced that the private prosecution has no personality to appear in the hearing of the application for probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of constitutionality was not properly raised in the lower court. Although, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of the constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was though, as a

general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.: . . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their representatives; that to an accusation by the people of Michigan of usurpation their government, a statute enacted by the people of Michigan is an adequate answer. The last proposition is true, but, if the statute relied on in justification is unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving effect to justify action under it than if it had never been enacted. The constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow . . . The legislature and the respondents are not the only parties in interest upon such constitutional questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party affected by an unconstitutional act of the legislature: "The people have a deep and vested interest in maintaining all the

constitutional limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.) In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of the question whether or not the state may bring the action, the Supreme Court of Kansas said: . . . the state is a proper party indeed, the proper party to bring this action. The state is always interested where the integrity of its Constitution or statutes is involved. "It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.) Where the constitutionality of a statute is in doubt the state's law officer, its Attorney-General, or county attorney, may exercise his bet judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122). Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said: It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should not, merely because he believed a certain statute to be unconstitutional forbid the district attorney to file a bill of information charging a person with a violation of the statute. In other words, a judge should not judicially declare a statute unconstitutional until the question of constitutionality is tendered for decision, and unless it must be decided in order to determine the right of a party litigant. State ex rel. Nicholls, Governor, etc., is authority for the proposition merely that an officer on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he considers the statute unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for the proposition merely that executive officers, e.g., the state auditor and state treasurer, should not decline to perform ministerial duties imposed upon them by a statute, on the ground that they believe the statute is unconstitutional. It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the Constitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other, or one which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is compelled to submit to the court, by way of a plea, that one of the statutes is unconstitutional. If it were not so, the power of the Legislature would be free from constitutional limitations in the enactment of criminal laws.

The respondents do not seem to doubt seriously the correctness of the general proposition that the state may impugn the validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act and, not authorized challenge the validity of the Act in its application outside said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.) The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as constitutional, is no reason for considering the People of the Philippines estopped from nor assailing its validity. For courts will pass upon a constitutional questions only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying upon the statute and treating it as valid until it is held void by the courts in proper cases. It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the resolution of the instant case. For, ". . . while the court will meet the question with firmness, where its decision is indispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed. Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a new addition to our statute books and its validity has never before been passed upon by the courts; that may persons accused and convicted of crime in the City of Manila have applied for probation; that some of them are already on probation; that more people will likely take advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period of about four years since his first conviction. All wait the decision of this court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the public welfare and for the advancement of public policy, we have determined to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was sustained by the Supreme Court of the United States. A more binding authority in support of the view we have taken can not be found.

We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised. Now for the main inquiry: Is the Act unconstitutional? Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside a statute in conflict therewith. This is of the essence of judicial duty. This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. "The question of the validity of every statute is first determined by the legislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive have taken an oath to support the Constitution and it must be presumed that they have been true to this oath and that in enacting and sanctioning a particular law they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitution except in a clear case. This is a proposition too plain to require a citation of authorities. One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the President of the Philippines had already expressed his opinion against the constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and independence of this court. We take notice of the fact that the President in his message dated September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised his constitutional prerogative. He may express the reasons which he may deem proper for taking such a step, but his reasons are not binding upon us in the determination of actual controversies submitted for our determination. Whether or not the Executive should express or in any manner insinuate his opinion on a matter encompassed within his broad constitutional power of veto but which happens to be at the same time pending determination in this court is a question of propriety for him exclusively to decide or determine. Whatever opinion is expressed by him under these circumstances, however, cannot sway our judgment on way or another and prevent us from taking what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us to make any vehement affirmance during this formative period of our political history, it is that we are independent of the Executive no less than of the Legislative department of our government independent in the performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it. The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it denies the equal protection of the laws.

1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-General of the Philippines "the exclusive power to grant pardons and reprieves and remit fines and forfeitures". This power is now vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at common law, pardon could be granted any time after the commission of the offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of the case were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning power can only be exercised "after conviction". So, too, under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is also the rule generally followed in the United States (Vide Constitution of the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offense committed, together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and of the power of the executive to impose, in the pardons he may grant, such conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the President under the Constitution but only with the concurrence of the National Assembly. We need not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes to state that the pardoning power has remained essentially the same. The question is: Has the pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act? As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exercise of the power may not, therefore, be vested in anyone else. ". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislative restrictions, nor can like power be given by the legislature to any other officer or authority. The coordinate departments of government have nothing to do with the pardoning power, since no person properly belonging to one of the departments can exercise any powers appertaining to either of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred on the executive without express or implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional and void. But does it? In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the opinion of the court that under the common law the power of the court was limited to temporary suspension and that the right to suspend sentenced absolutely and permanently was vested in the executive branch of the government and not in the judiciary. But, the right of Congress to establish probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the

future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise discretion the infinite variations which may be presented to them for judgment, recourse must be had Congress whose legislative power on the subject is in the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation Association and others to agitate for the enactment by Congress of a federal probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an appropriation to defray the salaries and expenses of a certain number of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.) In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court has begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act was not considered but was assumed. The court traced the history of the Act and quoted from the report of the Committee on the Judiciary of the United States House of Representatives (Report No. 1377, 68th Congress, 2 Session) the following statement: Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of probation either, by suspending sentence or by placing the defendants under state probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts to suspend sentenced. In the same opinion the court pointed out the necessity for action by Congress if the courts were to exercise probation powers in the future . . . Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciary Committee again favorably reported a probation bill to the House, but it was never reached for definite action. If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of those convicted of violations of its criminal laws in harmony with that of the states of the Union. At the present time every state has a probation law, and in all but twelve states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.) The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said: Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in no manner to encroach upon the pardoning power of the President. This case will be found to contain an able and comprehensive review of the law applicable here. It arose under the act we have to consider, and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act. We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language, pointed to Congress as possessing the requisite power to enact probation laws, that a federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been assumed by the Supreme Court of the United States in 1928 and consistently sustained by the inferior federal courts in a number of earlier cases.

We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a probation law under its broad power to fix the punishment of any and all penal offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature to denominate and define all classes of crime, and to prescribe for each a minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the courts particularly the trial courts large discretion in imposing the penalties which the law prescribes in particular cases. It is believed that justice can best be served by vesting this power in the courts, they being in a position to best determine the penalties which an individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentence merely because, taking into consideration the degree of malice and the injury caused by the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case to submit to the Chief Executive, through the Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating circumstances are attendant in the commission of a crime and the law provides for a penalty composed of two indivisible penalties, the courts may allow such circumstances to offset one another in consideration of their number and importance, and to apply the penalty according to the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of each periods, in case the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are allowed to fix any amount within the limits established by law, considering not only the mitigating and aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who has not acted without discernment, but always lower by two degrees at least than that prescribed by law for the crime which he has committed. Article 69 of the same Code provides that in case of "incomplete self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having in mind the social danger and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.) Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when the guilty person is more than seventy years of age, or where upon appeal or revision of the case by the Supreme Court, all the members thereof are not unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when a convict shall become insane or an imbecile after final sentence has been pronounced, or while he is serving his sentenced, the execution of said sentence shall be suspended with regard to the personal penalty during the period of such insanity or imbecility (art. 79). But the desire of the legislature to relax what might result in the undue harshness

of the penal laws is more clearly demonstrated in various other enactments, including the probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has also enacted the Juvenile Delinquency Law (Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by permitting the suspension of the execution of the judgment in the discretion of the trial court, after due hearing and after investigation of the particular circumstances of the offenses, the criminal record, if any, of the convict, and his social history. The Legislature has in reality decreed that in certain cases no punishment at all shall be suffered by the convict as long as the conditions of probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the commission of a wrong, while to be declared by the courts as a judicial function under and within the limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal causes, with which the executive can have nothing to do." (Ex parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia probation statute against the contention that it attempted to delegate to the courts the pardoning power lodged by the constitution in the governor alone is vested with the power to pardon after final sentence has been imposed by the courts, the power of the courts to imposed any penalty which may be from time to time prescribed by law and in such manner as may be defined cannot be questioned." We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature to vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.) Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St.

Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of authorities holding that the courts may be legally authorized by the legislature to suspend sentence by the establishment of a system of probation however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the execution of a sentence until otherwise ordered by the court, and required that the convicted person be placed under the charge of a parole or peace officer during the term of such suspension, on such terms as the court may determine, was held constitutional and as not giving the court a power in violation of the constitutional provision vesting the pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.) Probation and pardon are not coterminous; nor are they the same. They are actually district and different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said: . . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution was adopted, are totally distinct and different in their nature. The former was always a part of the judicial power; the latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and the civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the offense. It removes the penalties and disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.) The framers of the federal and the state constitutions were perfectly familiar with the principles governing the power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, and the words of the constitution were used to express the authority formerly exercised by the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any part of the judicial functions to suspend sentence, and it was never intended that the authority to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own judgments, that criminal courts has so long maintained. The two powers, so distinct and different in their nature and character, were

still left separate and distinct, the one to be exercised by the executive, and the other by the judicial department. We therefore conclude that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain cases after conviction, a power inherent in such courts at common law, which was understood when the constitution was adopted to be an ordinary judicial function, and which, ever since its adoption, has been exercised of legislative power under the constitution. It does not encroach, in any just sense, upon the powers of the executive, as they have been understood and practiced from the earliest times. (Quoted with approval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.) In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of the Act provides that the probation may be definitely terminated and the probationer finally discharged from supervision only after the period of probation shall have been terminated and the probation officer shall have submitted a report, and the court shall have found that the probationer has complied with the conditions of probation. The probationer, then, during the period of probation, remains in legal custody subject to the control of the probation officer and of the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.) The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is really a new mode of punishment, to be applied by the judge in a proper case, in substitution of the imprisonment and find prescribed by the criminal laws. For this reason its application is as purely a judicial act as any other sentence carrying out the law deemed applicable to the offense. The executive act of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or rather is outside of and above it. There is thus no conflict with the pardoning power, and no possible unconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.) Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the petitioners as authority in support of their contention that the power to grant pardons and reprieves, having been vested exclusively upon the Chief Executive by the Jones Law, may not be conferred by the legislature upon the courts by means of probation law authorizing the indefinite judicial suspension of sentence. We have examined that case and found that although the Court of Criminal Appeals of Texas held that the probation statute of the state in terms conferred on the district courts the power to grant pardons to persons convicted of crime, it also distinguished between suspensions sentence on the one hand, and reprieve and commutation of sentence on the other. Said the court, through Harper, J.: That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is settled by the decisions of the various courts; it being held that the distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the power confiding in the Governor to grant commutations of punishment, for a commutations is not but to change the punishment assessed to a less punishment. In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of Montana had under consideration the validity of the adult probation law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid as not impinging upon the pardoning power of the executive. In a unanimous decision penned by Justice Holloway, the court said:

. . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our Constitution was adopted, and no one of them was intended to comprehend the suspension of the execution of the judgment as that phrase is employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs. State, 97 Ind., 373). Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 has been determined; but the same objections have been urged against parole statutes which vest the power to parole in persons other than those to whom the power of pardon is granted, and these statutes have been upheld quite uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.) We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The pardoning power, in respect to those serving their probationary sentences, remains as full and complete as if the Probation Law had never been enacted. The President may yet pardon the probationer and thus place it beyond the power of the court to order his rearrest and imprisonment. (Riggs vs. United States [1926], 14 F. [2d], 5, 7.) 2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of legislative power? Under the constitutional system, the powers of government are distributed among three coordinate and substantially independent organs: the legislative, the executive and the judicial. Each of these departments of the government derives its authority from the Constitution which, in turn, is the highest expression of popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. The power to make laws the legislative power is vested in a bicameral Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is said to have originated with the glossators, was introduced into English law through a misreading of Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened principle of free government. It has since become an accepted corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is charged. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the

responsibilities by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.) The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice permits the central legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs by the central authorities; and hence while the rule is also fundamental that the power to make laws cannot be delegated, the creation of the municipalities exercising local self government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribed local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to delegate legislative power to such agencies in the territories of the United States as it may select. A territory stands in the same relation to Congress as a municipality or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the people at large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be republican in form because of its adoption of the initiative and referendum has been held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked upon with favor by certain progressive courts, the sting of the decisions of the more conservative courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of the Philippines provides that "The National Assembly may by law authorize the President, subject to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues." And section 16 of the same article of the Constitution provides that "In times of war or other national emergency, the National Assembly may by law authorize the President, for a limited period and subject to such restrictions as it may prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond the scope of this decision to determine whether or not, in the absence of the foregoing constitutional provisions, the President could be authorized to exercise the powers thereby vested in him. Upon the other hand, whatever doubt may have existed has been removed by the Constitution itself. The case before us does not fall under any of the exceptions hereinabove mentioned. The challenged section of Act No. 4221 in section 11 which reads as follows: This Act shall apply only in those provinces have provided for the salary of a probation provided for provincial fiscals. Said probation of Justice and shall be subject to the direction in which the respective provincial boards officer at rates not lower than those now officer shall be appointed by the Secretary of the Probation Office. (Emphasis ours.)

In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make the sale of it in violation of the proclamation a crime. (See and cf. Compaia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R. C. L., pp. 177-179.) For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies endowed with power to determine when the Act should take effect in their respective provinces. They are the agents or delegates of the legislature in this respect. The rules governing delegation of legislative power to administrative and executive officers are applicable or are at least indicative of the rule which should be here adopted. An examination of a variety of cases on delegation of power to administrative bodies will show that the ratio decidendi is at variance but, it can be broadly asserted that the rationale revolves around the presence or absence of a standard or rule of action or the sufficiency thereof in the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative officer or board may be guided in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards in the exercise of their discretionary power to determine whether or not the Probation Act shall apply in their respective provinces? What standards are fixed by the Act? We do not find any and none has been pointed to us by the respondents. The probation Act does not, by the force of any of its provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the various provincial boards to determine. In other words, the provincial boards of the various provinces are to determine for themselves, whether the Probation Law shall apply to their provinces or not at all. The applicability and application of the Probation Act are entirely placed in the hands of the provincial boards. If the provincial board does not wish to have the Act applied in its province, all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrender of legislative power to the provincial boards. "The true distinction", says Judge Ranney, "is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the same effect are the decision of this court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the validity of the law conferring upon the Governor-General authority to adjust provincial and municipal boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor and approved by the provincial board. In the third

case, it was held proper for the legislature to vest in the Governor-General authority to suspend or not, at his discretion, the prohibition of the importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and livestock of the lands." It should be observed that in the case at bar we are not concerned with the simple transference of details of execution or the promulgation by executive or administrative officials of rules and regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the legislature. It is true that laws may be made effective on certain contingencies, as by proclamation of the executive or the adoption by the people of a particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is a mental process common to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority on account of the complexity arising from social and economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in the following language speaking of declaration of legislative power to administrative agencies: "The principle which permits the legislature to provide that the administrative agent may determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the legislature. In other words, the legislature, as it its duty to do, determines that, under given circumstances, certain executive or administrative action is to be taken, and that, under other circumstances, different of no action at all is to be taken. What is thus left to the administrative official is not the legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require to be done according to the terms of the law by which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies leaving to some other person or body the power to determine when the specified contingencies has arisen. But, in the case at bar, the legislature has not made the operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by the provincial board. It leaves, as we have already said, the entire operation or non-operation of the law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A provincial board need not investigate conditions or find any fact, or await the happening of any specified contingency. It is bound by no rule, limited by no principle of expendiency announced by the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason

whatsoever for refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at its pleasure. The fact that at some future time we cannot say when the provincial boards may appropriate funds for the salaries of probation officers and thus put the law into operation in the various provinces will not save the statute. The time of its taking into effect, we reiterate, would yet be based solely upon the will of the provincial boards and not upon the happening of a certain specified contingency, or upon the ascertainment of certain facts or conditions by a person or body other than legislature itself. The various provincial boards are, in practical effect, endowed with the power of suspending the operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions provided that laws may be suspended only by the legislature or by its authority. Thus, section 28, article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation of the laws shall never be suspended, except by authority of the General Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the legislature. While it may be undoubted that the legislature may suspend a law, or the execution or operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and cannot be made for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was said: By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared that the power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for. Many of the articles in that declaration of rights were adopted from the Magna Charta of England, and from the bill of rights passed in the reign of William and Mary. The bill of rights contains an enumeration of the oppressive acts of James II, tending to subvert and extirpate the protestant religion, and the laws and liberties of the kingdom; and the first of them is the assuming and exercising a power of dispensing with and suspending the laws, and the execution of the laws without consent of parliament. The first article in the claim or declaration of rights contained in the statute is, that the exercise of such power, by legal authority without consent of parliament, is illegal. In the tenth section of the same statute it is further declared and enacted, that "No dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the same should be held void and of no effect, except a dispensation be allowed of in such statute." There is an implied reservation of authority in the parliament to exercise the power here mentioned; because, according to the theory of the English Constitution, "that absolute despotic power, which must in all governments reside somewhere," is intrusted to the parliament: 1 Bl. Com., 160. The principles of our government are widely different in this particular. Here the sovereign and absolute power resides in the people; and the legislature can only exercise what is delegated to them according to the constitution. It is obvious that the exercise of the power in question would be equally oppressive to the subject, and subversive of his right to protection, "according to standing laws," whether exercised by one man or by a number of men. It cannot be supposed that the people when adopting this general principle from the English bill of rights and inserting it in our constitution, intended to bestow by implication on the general court one of the most odious and oppressive prerogatives of the ancient kings of England. It is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances; or that ant one should be subject to losses, damages, suits, or actions from which all others under like circumstances are exempted. To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals wounded by it for the damages without proving a knowledge of it vicious disposition. By a provision of the act, power was given to the board of supervisors to determine whether or not during the current year their county should be governed by the provisions of the act of which that section constituted

a part. It was held that the legislature could not confer that power. The court observed that it could no more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system contained a provision that "if the county court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be enforce in their county. The act does not submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation within the county; but it became by its own terms a law in every county not excepted by name in the act. It did not, then, require the county court to do any act in order to give it effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of previous laws, the county court is . . . empowered, to suspend this act and revive the repealed provisions of the former act. When the question is before the county court for that tribunal to determine which law shall be in force, it is urge before us that the power then to be exercised by the court is strictly legislative power, which under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented in the abstract; for the county court of Saline county, after the act had been for several months in force in that county, did by order suspend its operation; and during that suspension the offense was committed which is the subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.) True, the legislature may enact laws for a particular locality different from those applicable to other localities and, while recognizing the force of the principle hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character which should receive different treatment in different localities placed under different circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary powers of municipalities to make by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which it is proper that the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local self-government and the propriety of leaving matters of purely local concern in the hands of local authorities or for the people of small communities to pass upon, we believe that in matters of general of general legislation like that which treats of criminals in general, and as regards the general subject of probation, discretion may not be vested in a manner so unqualified and absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the operation of the Probation Act in particular provinces but, considering that, in being vested with the authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby are given absolute discretion to determine whether or not the law should take effect or operate in their respective provinces, the provincial boards are in reality empowered by the legislature to suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance until the provincial boards should decide otherwise by appropriating the necessary funds. The validity of a law is not tested by what has been done but by what may be done under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.) It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of what may be termed legislative policy but in the elaboration and execution thereof. "Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government

lives because of the inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of government is vested in the representatives of the people and that these representatives are no further restrained under our system than by the express language of the instrument imposing the restraint, or by particular provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of power and one of these time-honored limitations is that, subject to certain exceptions, legislative power shall not be delegated. We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority to the provincial boards and is, for this reason, unconstitutional and void. 3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.) This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our government and on the subordinate instrumentalities and subdivision thereof, and on many constitutional power, like the police power, taxation and eminent domain. The equal protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a denial of the equal protection of the laws in a question not always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.) In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative power, although perhaps this is not necessarily the result in every case. Adopting the example given by one of the counsel for the petitioners in the course of his oral argument, one province may appropriate the necessary fund to defray the salary of a probation officer, while another province may refuse or fail to do so. In such a case, the Probation Act would be in operation in the former province but not in the latter. This means that a person otherwise coming within the purview of the law would be liable to enjoy the benefits of probation in one province while another person similarly situated in another province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation officers in their respective provinces, in which case no inequality would result for the obvious reason that probation would be in operation in each and every province by the affirmative action of appropriation by all the provincial boards. On that hypothesis, every person coming within the purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province, through its provincial board, should appropriate any amount for the salary of the probation officer which is the situation now and, also, if we accept the contention that, for the

purpose of the Probation Act, the City of Manila should be considered as a province and that the municipal board of said city has not made any appropriation for the salary of the probation officer. These different situations suggested show, indeed, that while inequality may result in the application of the law and in the conferment of the benefits therein provided, inequality is not in all cases the necessary result. But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in which discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities requiring actual denial of the equal protection of the law before court should assume the task of setting aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that account bad. We see no difference between a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may said Act be in force in one or several provinces and not be in force in other provinces, but one province may appropriate for the salary of the probation officer of a given year and have probation during that year and thereafter decline to make further appropriation, and have no probation is subsequent years. While this situation goes rather to the abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial uniformity. It should be observed, however, that this case concerns the right to preliminary investigations in criminal cases originally granted by General Orders No. 58. No question of legislative authority was involved and the alleged denial of the equal protection of the laws was the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have presented an information against him in proper form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates that the investigation by the prosecuting attorney although not in the form had in the provinces was considered a reasonable substitute for the City of Manila, considering the peculiar conditions of the city as found and taken into account by the legislature itself. Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the constitution of Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court, except those in

certain counties for which counties the constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision complained of, then, is found in the constitution itself and it is the constitution that makes the apportionment of territorial jurisdiction. We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also repugnant to equal-protection clause of our Constitution. Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next inquiry is whether or not the entire Act should be avoided. In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the well-established rule concerning partial invalidity of statutes in the following language: . . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in so far independent of the invalid portion that it is fair to presume that the Legislative would have enacted it by itself if they had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated without causing results affecting the main purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will, independently of the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.) It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which the respective provincial boards provided for the salaries of probation officers were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our opinion, is inseparably linked with the other portions of the Act that with the elimination of the section what would be left is the bare idealism of the system, devoid of any practical benefit to a large number of people who may be deserving of the intended beneficial result of that system. The clear policy of the law, as may be gleaned from a careful examination of the whole context, is to make the application of the system dependent entirely upon the affirmative action of the different provincial boards through appropriation of the salaries for probation officers at rates not lower than those provided for provincial fiscals. Without such action on the part of the various boards, no probation officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is divided or subdivided into provinces and it needs no argument to show that if not one of the provinces and this is the actual situation now appropriate the necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There can be no probation without a probation officer. Neither can there be a probation officer without the probation system. Section 2 of the Acts provides that the probation officer shall supervise and visit

the probationer. Every probation officer is given, as to the person placed in probation under his care, the powers of the police officer. It is the duty of the probation officer to see that the conditions which are imposed by the court upon the probationer under his care are complied with. Among those conditions, the following are enumerated in section 3 of the Act: That the probationer (a) shall indulge in no injurious or vicious habits; (b) Shall avoid places or persons of disreputable or harmful character; (c) Shall report to the probation officer as directed by the court or probation officers; (d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere; (e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or locality; (f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense; (g) Shall comply with such orders as the court may from time to time make; and (h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in accordance with law. The court is required to notify the probation officer in writing of the period and terms of probation. Under section 4, it is only after the period of probation, the submission of a report of the probation officer and appropriate finding of the court that the probationer has complied with the conditions of probation that probation may be definitely terminated and the probationer finally discharged from supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as reported by the probation officer, it may issue a warrant for the arrest of the probationer and said probationer may be committed with or without bail. Upon arraignment and after an opportunity to be heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order the execution of the sentence originally imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of every probation officer to furnish to all persons placed on probation under his supervision a statement of the period and conditions of their probation, and to instruct them concerning the same; to keep informed concerning their conduct and condition; to aid and encourage them by friendly advice and admonition, and by such other measures, not inconsistent with the conditions imposed by court as may seem most suitable, to bring about improvement in their conduct and condition; to report in writing to the court having jurisdiction over said probationers at least once every two months concerning their conduct and condition; to keep records of their work; make such report as are necessary for the information of the Secretary of Justice and as the latter may require; and to perform such other duties as are consistent with the functions of the probation officer and as the court or judge may direct. The probation officers provided for in this Act may act as parole officers for any penal or reformatory institution for adults when so requested by the authorities thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons released on parole under Act Number Forty-one Hundred and Three, without additional compensation." It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10 of Act which provides as follows: There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office under the direction of a Chief Probation Officer to be appointed by the Governor-General with the advise and consent of the Senate who shall receive a salary of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out of any funds in the Insular Treasury not otherwise appropriated,

the sum of fifty thousand pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint probation officers and the administrative personnel of the probation officer under civil service regulations from among those who possess the qualifications, training and experience prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation officers and administrative personnel until such positions shall have been included in the Appropriation Act. But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis, that the probation officers referred to in section 10 above-quoted are to act as such, not in the various provinces, but in the central office known as the Probation Office established in the Department of Justice, under the supervision of the Chief Probation Officer. When the law provides that "the probation officer" shall investigate and make reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation (sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a particular province. It never could have been intention of the legislature, for instance, to require the probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a probation officer in Manila to visit the probationer in the said province of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to perform such other functions as are assigned to him by law. That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or groups of provinces is, of course possible. But this would be arguing on what the law may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is. But much as has been said regarding progressive interpretation and judicial legislation we decline to amend the law. We are not permitted to read into the law matters and provisions which are not there. Not for any purpose not even to save a statute from the doom of invalidity. Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the salaries of probation officers in the provinces but to make the provinces defray them should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation officers in the central office at Manila. These probation officers are to receive such compensations as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers in the provinces or later on to include said salaries in an appropriation act. Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other things, the salaries of the administrative personnel of the Probation Office, what would be left of the amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do not think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in each province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in our case there can be a system of probation in the provinces without probation officers. Probation as a development of a modern penology is a commendable system. Probation laws have been enacted, here and in other countries, to permit what modern criminologist call the "individualization of the punishment", the adjustment of the penalty to the character of the criminal and the circumstances of his particular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed

that, in any cases, convicts may be reformed and their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The benefit to the individual convict is merely incidental. But while we believe that probation is commendable as a system and its implantation into the Philippines should be welcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental law. In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for both parties, as well in their memorandums as in their oral argument. We have examined the cases brought to our attention, and others we have been able to reach in the short time at our command for the study and deliberation of this case. In the examination of the cases and in then analysis of the legal principles involved we have inclined to adopt the line of action which in our opinion, is supported better reasoned authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain adjudicated cases brought to our attention, except where the point or principle is settled directly or by clear implication by the more authoritative pronouncements of the Supreme Court of the United States. This line of approach is justified because: (a) The constitutional relations between the Federal and the State governments of the United States and the dual character of the American Government is a situation which does not obtain in the Philippines; (b) The situation of s state of the American Union of the District of Columbia with reference to the Federal Government of the United States is not the situation of the province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871), (c) The distinct federal and the state judicial organizations of the United States do not embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317); (d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view existing local conditions and environment. Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted. Without any pronouncement regarding costs. So ordered. Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur.Villa-real and Abad Santos, JJ., concur in the result. SECOND DIVISION

G.R. No. 126594 September 5, 1997 IMELDA R. MARCOS, petitioner, vs.The Honorable COURT OF APPEALS; Honorable Judge GUILLERMO L. LOJA, SR., the Presiding Judge of Branch 26 of the RTC at Manila; and the PEOPLE OF THE PHILIPPINES, respondents. RESOLUTION

REGALADO, J.: In a petition for review on certiorari filed on November 5, 1996, petitioner Imelda R. Marcos prays this Court to set aside the decision of respondent Court of Appeals promulgated in CA-G.R. SP No. 35719 on May 23, 1996, as well as its resolution of September 27, 1996 denying her motion for the reconsideration of the judgment in said case. 1 Preliminarily, her motion for extension of time to file this petition was denied for noncompliance with Revised Circular No. 1-88 and Circular No. 19-91 because the affidavit of service, although otherwise sufficient in form and substance, was not signed by the affiant, and the registry receipt proving service of a copy of said motion to the Solicitor General was not attached thereto. Hence, the petition subsequently filed by her was dismissed for having been filed out of time in this Court's resolution of November 27, 1996. 2 Petitioner then moved for reconsideration, explaining the cause for the procedural lapses and contending that, on the merits, the trial court had no jurisdiction over the offenses charged; that no offenses were actually charged or that the facts alleged do not constitute the imputed offenses; and, consequently, that the court a quo gravely abused its discretion in denying the motion to quash. Considering the number of criminal cases filed against petitioner, relief from which is sought in the petition at bar and the issues wherein may possibly be raised again in other cases of a similar nature, the Court resolved on February 24, 1997 to require the Solicitor General to comment thereon, in order that the adjudication of petitioner's plaints may not go off only on procedural points. In due time, such comment was filed, albeit in abbreviated form, the Solicitor General correctly pointing out that all the substantive issues now being raised before us had also been extensively argued in and resolved by respondent appellate court. Indeed, an overall review of the allegations in the present petition reveals that the same are merely a rehash of those already submitted to respondent court and that this petition is apparently a reprise of the certiorari petition in CA-G.R. SP No. 35719 filed in the Court of Appeals. For facility of presentation, therefore, we need merely to reproduce herein the findings in the assailed decision of respondent appellate court, which are fully sustained by the records, excluding therefrom those cases pertaining to CA-G.R. SP No. 35928 (except when involved in the narration of the antecedents of this case) which was jointly resolved by it but from which no appeal or other recourse was taken by the petitioners therein. We accordingly give credit to respondent court and adopt its recital of the antecedents of the instant petition, to wit: In CA-G.R. SP No. 35719, petitioner Marcos assails the Order dated June 9, 1994 which denied her Motion to Quash the eight (8) informations filed against her in the consolidated Criminal Case Nos. 91-101732 to 91-101739 and the other fourteen (14) informations filed against her, Benedicto and Rivera in the consolidated Criminal Case Nos. 91-101879 to 91-101892, and Order dated August 30, 1994 which denied her Motion for Reconsideration. xxx xxx xxx On October 21, 1983, pursuant to Monetary Board Resolution Nos. 1632 and 1718 dated September 30, 1983 and October 21, 1983, respectively, the Central Bank (CB) of the Philippines (now Bangko Sentral ng Pilipinas) issued Circular No. 960. The circular, which consolidated the various rules and regulations promulgated by the CB concerning foreign exchange non-trade transactions including those on gold and silver, prohibits in its Section 4 residents, firms, associations, or corporations from maintaining foreign

exchange accounts abroad without prior authorization from the CB or without being permitted by CB regulations; and requires in Section 10 thereof all residents who habitually earn or receive foreign exchange from invisibles locally or from abroad to submit reports of such earnings or receipts in prescribed form with the proper CB department and to register with the Foreign Exchange Department of the CB within 90 days from October 21, 1983. Violation of the provisions of the circular is punishable as a criminal offense under Section 34 of R.A. No. 265, as amended (the Central Bank Act). On December 20, 1991 or nearly six years after the 1986 EDSA Revolution which toppled the Marcos regime, Marcos was, for allegedly opening and maintaining foreign exchange accounts abroad on various dates from 1968 to 1991 without prior authorization from the CB or otherwise allowed by CB regulations, charged with violating Section 4 of CB Circular 960 before the RTC of Manila in eight (8) essentially identically worded informations docketed as Criminal Case Nos. 91-101732 to 101739, one of which reads as follows: That from 1968 to June 6, 1991, both dates inclusive, the above-named accused, in conspiracy with her late husband, then President Ferdinand E. Marcos, while both residing in Malacaang Palace in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court did, then and there wilfully, unlawfully and feloniously open and maintain foreign exchange accounts abroad, particularly in Swiss Bank Corporation (SBC) in Geneva, Switzerland, in the name of Maler Establishment, later transformed into Maler Foundation, which was organized by their dummies, nominees, fronts, agents or duly appointed administrators among them Jean Louis Sunier who received instructions from the accused and her husband who signed with their alias "JOHN LEWIS" in order to maintain two accounts, one of which is Account No. 98929 NY under Maler II with a balance of SF 16,195,258.00, without prior permission from the Central Bank of the Philippines, and such act of maintaining foreign account abroad was not permitted under Central Bank regulations. (Rollo, CA-G.R. SP No. 35719, pp. 45-46) The wordings of the other seven (7) informations differed only in the dates of commission of the offense charged, the name/s of the dummy/dummies, the balance of the foreign exchange accounts maintained abroad and the name/s of the foreign bank/s where such accounts were maintained. Likewise, for allegedly failing to submit a report of their foreign exchange earnings from abroad and/or to register with the Foreign Exchange Department of the CB within the period mandated by Section 10 of CB Circular No. 960, Marcos, Benedicto and Rivera were similarly indicted on December 27, 1991 for violation of Section 10, CB Circular No. 960 in relation to Section 34 of the Central Bank Act in five (5) informations filed with the RTC of Manila which were docketed as Criminal Case Nos. 91-101879 91-101883. On the same date, nine (9) more informations essentially charging the same offense were filed with the RTC of Manila, but this time only against Marcos and Benedicto, which were docketed as Criminal Case Nos. 91-101884 to 91-101892. One of the informations reads: That from September 21, 1983 up to December 26, 1985, both dates inclusive, and for sometime thereafter, all accused, conspiring and confederating with one another and with the late President Ferdinand E. Marcos, all residing and/or doing business in Manila, Philippines, within the jurisdiction of this Honorable Court, and assisted by their foreign agent or attorney-in-fact Stephen G. Cattaui, did then and there wilfully, unlawfully and feloniously fail to submit reports in the prescribed form and/or register with the Foreign Exchange Department of the Central Bank within 90 days from October 21, 1983 as required of them being residents habitually/customarily earning, acquiring/receiving foreign exchange from whatever source or from invisibles locally or from abroad, despite the fact that they actually earned interests regularly for their investment of FIFTEEN MILLION ($15-million) DOLLARS, U.S. Currency, in Philippine-issued dollar-denominated treasury notes with floating rates and in bearer form, in the name of Banque de Paris et des Pays-Bas (also known as Banque Paribas) in Geneva, Switzerland but which was transferred on May 17, 1984 to Lombard, Odier et Cie, a bank also in Geneva, for the account of COGES 00777 being managed by Mr. Stephane Cattaui for the Marcoses who

also arranged the said investment of $15-million through respondents Roberto S. Benedicto and Hector T. Rivera by using the Royal Traders Bank in Manila as the custodian of the said dollar-denominated treasury notes, which earned, acquired or received for the accused Imelda Romualdez Marcos and her late husband an interest of $13,229.16 for delay (December 16-19, 1995) plus redemption of $15-Million which was remitted to Lombard, Odier et Cie through Chicago International Banking Corporation in New York, United States of America, for the credit of said Account COGES 00777 of the Marcoses for further investment outside the Philippines without first complying with the reporting/registering requirements of the Central Bank. (Rollo, CA-G.R. SP No. 35928, pp. 45-46) On January 3, 1992, eleven (11) more informations for alleged violation of the aforesaid Section 10, CB Circular 960 were filed against Marcos and Benedicto with the same court which were docketed as Criminal Case Nos. 92-101959 to 92-101969. xxx xxx xxx All these thirty-three (33) cases were consolidated before Branch 26 of the RTC of Manila presided by herein public respondent Judge Loja, Sr. Marcos was arraigned on February 12, 1992 while Benedicto and Rivera were arraigned on February 28, 1994. During the pendency of these cases, CB Circular No. 1318 (Revised Manual of Rules and Regulations Governing Non-Trade Foreign Exchange Transactions) dated January 3, 1992 and CB Circular No. 1353 (Further Liberalizing Foreign Exchange Regulations) dated August 24, 1992 were issued by the CB. CB Circular No. 1318 repeals insofar as inconsistent therewith all existing provisions of CB Circular No. 960, among other circulars, while CB Circular No. 1353 repeals all the provisions of Chapter X of CB Circular No. 1318 only insofar as they are inconsistent therewith. Both circulars, however, contain a saving clause excepting from the circular pending criminal actions involving violations of CB Circular No. 960 and CB Circular No. 1318. (Emphasis supplied) Invoking the abovementioned repeal as one of her grounds, Marcos filed a Motion to Quash on May 23, 1994 seeking the dismissal of the cases or the quashal of the in formations filed against her in Criminal Case Nos. 91-101732 to 91-101739 and 91101879 to 91-101892. Respondent People of the Philippines opposed the same on June 2, 1994. 3 Petitioner Marcos' aforesaid motion was denied by the trial court in an order dated June 9, 1994 and her motion for reconsideration was likewise repudiated in an order of August 30, 1994. She then filed a petition for certiorari and prohibition with respondent Court of Appeals ascribing abuse of discretion on the part of respondent trial judge. What transpired there is best taken from the account thereof in the following portion of the impugned decision of respondent appellate court. In CA-G.R. SP No. 35719, Marcos relied on two grounds in taking respondent court to task, to wit: (1) respondent court has no jurisdiction over the offenses charged; and (2) respondent court acted with grave abuse of discretion amounting to lack of jurisdiction in denying her Motion to Quash. Anent the first ground, Marcos argues that respondent court has no jurisdiction over the cases as the informations clearly allege that the acts complained of were committed outside Philippine territory, and that her constitutional right to equal protection of the laws was violated, the saving clause contained in CB Circular No. 1318 which repealed CB Circular No. 960 being patently discriminatory as it was purposedly designed to preserve the criminal cases lodged against her and her co-accused. As to the second ground, Marcos argues that the facts alleged in the informations, even if true, do not constitute offenses and that in any event the offenses charged have "disappeared" due to repeal.

Marcos asseverates that the saving clause (Section 111, Chapter X) of CB Circular No. 1318 is invalid since the Monetary Board has no authority to except therefrom pending criminal prosecutions, the power being purely legislative and is not expressly granted in its charter; that even assuming ad arguendo that the Monetary Board has the power, the same is still invalid for being an encroachment and an invalid delegation thereof, the power to declare what constitutes a crime and how it should be punished being vested solely and exclusively in the legislature; that even further assuming that there is no invalid delegation of power to incorporate the saving clause, it is still invalid for being ultra vires as it is not germane to the object and purpose of the Central Bank Act which is to stabilize the monetary system; and in any event, even if the power is unquestioned, the clause is still invalid for being violative of the equal protection of (t)he law clause of the Constitution, it having been designed solely for the purpose of preserving the criminal cases against her and her co-accused. As regards the assertion that the facts alleged in the informations do not constitute an offense, Marcos contends that since the allegations unequivocally state that foreign foundations or trusts, not the Marcoses, opened and maintained the subject Swiss accounts and earned and received the interests therefrom, she has no duty to report any earnings and if at all, she was a mere beneficiary of the foreign foundations or trusts; and that the acts having been committed abroad, they are beyond the jurisdiction of respondent court. xxx xxx xxx Petitioners do not dispute the validity of CB Circular No. 960, the law under which they are being prosecuted, and of CB Circular Nos. 1318 and 1353 which they allege repealed CB Circular No. 960, nor do they challenge the authority of the Monetary Board to issue them. Petitioners likewise do not dispute that violation of Section 4 of CB Circular No. 960, as amended, which provides: Sec. 4. Foreign exchange retention abroad. No person shall promote, finance, enter into or participate in any foreign exchange transactions where the foreign exchange involved is paid, retained, delivered or transferred abroad while the corresponding pesos are paid for or are received in the Philippines, except when specifically authorized by the Central Bank or otherwise allowed under Central Bank regulations. Residents, firms, associations, or corporations unless otherwise permitted under CB regulations are prohibited from maintaining foreign exchange accounts abroad. or of Section 10 thereof, the pertinent portions of which provide: Sec. 10. Reports of foreign exchange earners. All resident persons who habitually/customarily earn, acquire, or receive foreign exchange from invisibles locally or from abroad, shall submit reports in the prescribed form of such earnings, acquisition or receipts with the appropriate CB department. Those required to submit reports under this section shall include, but need not necessarily be limited to the following: xxx xxx xxx Residents, firms or establishments habitually/customarily earning, acquiring or receiving foreign exchange from sales of merchandise, services or from whatever source shall register with the Foreign Exchange Department of the Central Bank within ninety (90) days from the date of this Circular. is punishable as a criminal offense under Section 34 of the Central Bank Act the pertinent portion of which provides: Sec. 34. Proceedings upon violation of laws and regulations. Whenever any person or entity wilfully violates this Act or any order, instruction, rule or regulation issued by the

Monetary Board, the person or persons responsible for such violation shall be punished by a fine of not more than twenty thousand pesos and by imprisonment of not more than five years. 4 In respondent Court of Appeals, however, it was petitioner's insistent position that violations of CB Circular No. 960, specifically Sections 4 and 10 thereof, ceased to be punishable upon the issuance in 1992 of CB Circular Nos. 1318 and 1353, on the theory that the latter circulars completely repealed the former, and that the reservations made in each of the repealing clauses of the latter circulars are invalid. She now reiterates the same contentions before us. Respondent appellate court rejected her thesis on this score; we are sufficiently persuaded to do likewise. The saving clause in CB Circular No. 1318, which petitioner questions, provides: Sec. 111. Repealing Clause. All existing provisions of Circulars 363, 960 and 1028, including amendments thereto, with the exception of the second paragraph of Section 68 of Circular 1028, as well as all other existing Central Bank rules and regulations or parts thereof, which are inconsistent with or contrary to the provisions of this Circular, are hereby repealed or modified accordingly: Provided, however, that regulations, violations of which are the subject of pending actions or investigations, shall not be considered repealed insofar as such pending action or investigations are concerned, it being understood that as to such pending actions or investigations, the regulations existing at the time the cause of action accrued shall govern (Emphasis ours). The assailed saving clause in CB Circular No. 1353 is as follows: Sec. 16. Final Provisions of CB Circular No. 1318. All the provisions in Chapter X of CB Circular No. 1318 insofar as they are not inconsistent with, or contrary to the provisions of this Circular, shall remain in full force and effect: Provided, however, that any regulation on non-trade foreign exchange transactions which has been repealed, amended or modified by this Circular, violations of which are the subject of pending actions or investigations, shall not be considered repealed insofar as such pending actions or investigations are concerned, it being understood that as to such pending actions or investigations, the regulations existing at the time of the cause of action accrued shall govern (Emphasis also supplied). We agree with respondent appellate court that such amendments and saving clauses are valid and were authorized enactments under a delegated power of the Monetary Board. Section 14 of the Central Bank Act expressly grants the Monetary Board the power to "prepare and issue rules and regulations necessary for the effective discharge of the responsibilities and exercise of the powers assigned to the Monetary Board and to the Central Bank under this Act," and to report the same thereafter to the President and Congress. In fact, this power of subordinate legislation and its validity was admitted by petitioner in the respondent appellate court. 5 It cannot be plausibly, claimed that there was undue delegation of legislative power in this particular instance since it was the Central Bank itself which defined the offense and provided the penalty therefor. As respondent Court of Appeals points out, administrative bodies have the authority to issue administrative regulations which are penal in nature where the law itself makes the violation of the administrative regulation punishable and provides for its penalty. 6 This is still the rule on the matter and, in the instant case, the Central Bank Act defined the offense and its penalty while the questioned circular merely spelled out the details of the offense. Ironically, petitioner concedes the greater power of the Board to repeal CB Circular No. 960 through CB Circular No. 1318, yet she inexplicably questions the lesser and incidental power to provide for saving clauses therein. Petitioner's argument that the saving clauses are not germane to the purposes of the Central Bank Act, and consequently ultra vires, has been roundly confuted by respondent Court of Appeals. If, as she claims, one of the objectives of that law is to stabilize the monetary system, that is precisely why Congress punished as criminal offenses the violations of the issuances of the Monetary Board necessary for the effective discharge of

its responsibilities, and to carry out which the Board deemed it necessary to provide for the challenged saving clauses. Obviously, these saving clauses were dictated by the need to continue the prosecution of those who had already committed acts of monetary destabilization. The opposite view posited by petitioner would result in an absurdity. Her lamentations that the aforementioned provisions are discriminatory because they are aimed at her and her co-accused do not assume the dignity of a legal argument since they are unwarranted conjectures belied by even the text of the circulars alone. Hence, as respondent appellate court correctly concludes, the foregoing facts clearly disprove petitioner's claim that her constitutional right to equal protection of the law was violated. Should she nonetheless desire to pursue such objection, she may always adduce additional evidence at the trial of these cases since that is the proper stage therefor, and not at their present posture. Lastly, there is no need for us to tarry on petitioner's hypothesis that the acts charged in the questioned informations were committed by foreign agents or juridical persons outside Philippine territory and that, she being supposedly a mere beneficiary, this scenario divests the trial court of jurisdiction over her insofar as the violations resulting from such acts abroad are concerned. This is too simplistic an argument because it would have the Court assume that she only had a passive participation thereon or, if she is to be believed, none at all. That is why respondent Court of Appeals decided to just graciously quote, in refutation of such imposition on judicial credulity, the perceptively, succinct observation of respondent trial judge, to wit: . . . In no uncertain terms, the corresponding informations clearly state that the accused, in conspiracy with the late president . . . opened and maintained foreign accounts abroad in the name of foundations organized by their dummies. The same observation holds true in Criminal Cases Nos. 91-101879-92 where the accused and her co-accused are charged (with) violation of Section 10, CB Circular 960. As easily gleaned therefrom, (the) criminal informations are not only sufficient but clear in alleging that the accused earned foreign exchange without proper reporting thereof although camouflaged in the name of foundations. xxx xxx xxx . . . accused's contention that the acts charged were committed by persons or agents who managed said foundation outside the country and therefore beyond the jurisdiction of this court is misplaced argument. As already stated and discussed, it is the accused who (was alleged to have) maintained foreign accounts and earned foreign exchange abroad camouflaged in the name of foreign agents and/or foundations but neither obtained authority to do so nor reported the earnings to the Central Bank. 7 (Words in emphasis supplied). All the way from the trial court, through the Court of Appeals, and now before this Court, petitioner has insistently repeated the selfsame issues and arguments for the quashal of the charges against her, with the result that the same have been deep-frozen since 1991. Inevitably, the three-tiered adjudicature to which they have been subjected has merely resulted in reiterations by the parties of their set issues, congealed arguments and invariable conclusions. It is time then to thaw those cases from the frigidity of their present status so that petitioner may have the opportunity to prove her defenses on the merits, instead of having those cases indefinitely sidelined by legal strategy contingent on expectancies. For, in the present posture thereof, it does not appear that respondent Court of Appeals has committed any abuse of discretion, much less of a grave or arbitrary nature, as would call for the extraordinary writ of certiorari. We accordingly uphold the denial of petitioner's motion to quash so that the interlocutory proceedings may now move on to trial wherein she can present such evidence as may possibly place her protestations in another light as she claims.

WHEREFORE, the petition at bar is DENIED and the challenged judgment of respondent Court of Appeals is AFFIRMED, with costs against petitioner. SO ORDERED. Romero, Mendoza and Torres, Jr., JJ., concur. EN BANC

G.R. No. 113811 October 7, 1994 ISHMAEL HIMAGAN, petitioner, vs.PEOPLE OF THE PHILIPPINES and HON. JUDGE HILARIO MAPAYO, RTC, Br. 11, Davao City, respondents. Victorio S. Advincula for petitioner.

KAPUNAN, J.: Petitioner, a policeman assigned with the medical company of the Philippine National Police Regional Headquarters at Camp Catitigan, Davao City, was implicated in the killing of Benjamin Machitar, Jr. and the attempted murder of Bernabe Machitar. After the informations for murder 1 and attempted murder 2 were filed with the Regional Trial Court, Branch 11, Davao City, on September 16, 1992, the trial court issued an Order suspending petitioner until the termination of the case on the basis of Section 47, R.A. 6975, otherwise known as Department of Interior and Local Government Act of 1990, which provides: Sec. 47. Preventive Suspension Pending Criminal Case. Upon the filing of a complaint or information sufficient in form and substance against a member of the PNP for grave felonies where the penalty imposed by law is six (6) years and one (1) day or more, the court shall immediately suspend the accused from office until the case is terminated. Such case shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment of the accused (Emphasis ours). On October 11, 1993, petitioner filed a motion to lift the order for his suspension, 3 relying on Section 42 of P.D. 807 of the Civil Service Decree, that his suspension should be limited to ninety (90) days and, also, on our ruling in Deloso v. Sandiganbayan, 4 and Layno v. Sandiganbayan. 5 In his order dated December 14, 1993 6 respondent judge denied the motion pointing out that under Section 47 of R.A. 6975, the accused shall be suspended from office until his case is terminated. The motion for reconsideration of the order of denial was, likewise, denied. 7 Hence, the petition for certiorari and mandamus to set aside the orders of respondent Judge and to command him to lift petitioner's preventive suspension. We find the petition devoid of merit. There is no question that the case of petitioner who is charged with murder and attempted murder under the Revised Penal Code falls squarely under Sec. 47 of RA 6975 which specifically applies to members of the PNP. In dispute however, is whether the provision limits the period of suspension to 90 days, considering that while the first sentence of Sec. 47 provides that the accused who is charged with grave felonies where the penalty imposed is six (6) years and one (1) day shall be suspended from office "until the case is terminated", the second sentence of the same section mandates that the case, which shall be subject to continuous trial, shall be terminated within 90 days from the arraignment of the accused. Petitioner posits that as a member of the Philippine National Police, under Sec. 91 of RA

6975 which reads: Sec. 91. The Civil Service Law and its implementing rules and regulations shall apply to all personnel of the Department. he is covered by the Civil Service Law, particularly Sec. 42 of PD 807 of the Civil Service Decree, which limits the maximum period of suspension to ninety (90) days, thus: Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service; Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided. He claims that an imposition of preventive suspension of over 90 days is contrary to the Civil Service Law and would be a violation of his constitutional right to equal protection of laws. He further asserts that the requirements inSec. 47 of R.A. 6975 that "the court shall immediately suspend the accused from office until the case is terminated" and the succeeding sentence, "Such case shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment of the accused" are both substantive and should be taken together to mean that if the case is not terminated within 90 days, the period of preventive suspension must be lifted because of the command that the trial must be terminated within ninety (90) days from arraignment. We disagree. First. The language of the first sentence of Sec. 47 of R.A. 6975 is clear, plain and free from ambiguity. It gives no other meaning than that the suspension from office of the member of the PNP charged with grave offense where the penalty is six years and one day or more shall last until the termination of the case. The suspension cannot be lifted before the termination of the case. The second sentence of the same Section providing that the trial must be terminated within ninety (90) days from arraignment does not qualify or limit the first sentence. The two can stand independently of each other. The first refers to the period of suspension. The second deals with the time frame within which the trial should be finished. Suppose the trial is not terminated within ninety days from arraignment, should the suspension of accused be lifted? The answer is certainly no. While the law uses the mandatory word "shall" before the phrase "be terminated within ninety (90) days", there is nothing in R.A. 6975 that suggests that the preventive suspension of the accused will be lifted if the trial is not terminated within that period. Nonetheless, the Judge who fails to decide the case within the period without justifiable reason may be subject to administrative sanctions and, in appropriate cases where the facts so warrant, to criminal 8 or civil liability. 9 If the trial is unreasonably delayed without fault of the accused such that he is deprived of his right to a speedy trial, he is not without a remedy. He may ask for the dismissal of the case. Should the court refuse to dismiss the case, the accused can compel its dismissal by certiorari, prohibition or mandamus, or secure his liberty by habeas corpus. 10 Second. Petitioner misapplies Sec. 42 of PD 807. A meticulous reading of the section clearly shows that it refers to the lifting of preventive suspension in pending administrative investigation, not in criminal cases, as here. What is more, Section 42 expressly limits the period of preventive suspension to ninety (90) days. Sec. 91 of R.A. 6975 which states that "The Civil Service Law and its implementing rules shall apply to all personnel of the Department" simply means that the provisions of the Civil Service Law and its implementing rules and regulations are applicable to members of the Philippine National Police insofar as the provisions, rules and regulations are not inconsistent withR.A. 6975. Certainly, Section 42 of the Civil Service Decree which limits the preventive suspension to ninety (90) days cannot apply to members of the PNP

because Sec. 47 of R.A. 6995 provides differently, that is, the suspension where the penalty imposed by law exceeds six (6) years shall continue until the case is terminated. Third. Petitioner's reliance on Layno and Deloso is misplaced. These cases all stemmed from charges in violation of R.A. 3019 (1060), otherwise known as the Anti-Graft and Corrupt Practices Act which, unlikeR.A. 6975, is silent on the duration of the preventive suspension. Sec. 13 of R.A. 3019 reads as follows: Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. In the case of Layno, the duly elected mayor of Lianga, Surigao del Sur, was preventively suspended after an information was filed against him for offenses under R.A. 3019 (1060), the Anti-Graft Corrupt Practices Act. He had been suspended for four (4) months at the time he filed a motion to lift his preventive suspension. We held that his indefinite preventive suspension violated the "equal protection clause" and shortened his term of office. Thus: 2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not expire until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he would have been all this while in the full discharge of his functions as such municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has been unable to. It is a basic assumption of the electoral process implicit in the right of suffrage that the people are entitled to the services of elective officials of their choice. For misfeasance or malfeasance, any of them could, of course, be proceeded against administratively or, as in this instance, criminally. In either case, his culpability must be established. Moreover, if there be a criminal action, he is entitled to the constitutional presumption of innocence. A preventive suspension may be justified. Its continuance, however, for an unreasonable length of time raises a due process question. For even if thereafter he were acquitted, in the meanwhile his right to hold office had been nullified. Clearly, there would be in such a case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the people of Lianga. They were deprived of the services of the man they had elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted continuance of this preventive suspension had outrun the bounds of reason and resulted in sheer oppression. A denial of due process is thus quite manifest. It is to avoid such an unconstitutional application that the order of suspension should be lifted. 3. Nor is it solely the denial of procedural due process that is apparent. There is likewise an equal protection question. If the case against petitioner Layno were administrative in character the Local Government Code would be applicable. It is therein clearly provided that while preventive suspension is allowable for the causes therein enumerated, there is this emphatic limitation on the duration thereof: "In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension." It may be recalled that the principle against indefinite suspension applies equally to national government officials. So it was held in the leading case of Garcia v. Hon. Executive Secretary. According to the opinion of Justice Barrera: "To adopt the theory of respondents that an officer appointed by the President, facing administrative charges, can be preventively suspended indefinitely, would be to countenance a situation where the preventive suspension can, in effect, be the penalty itself without a finding of guilt after due hearing, contrary to the express mandate of the Constitution and the Civil Service law." Further: "In the guise of a preventive suspension, his term of office could be shortened and he could in effect, be removed without a finding of a cause duly established after due hearing, in violation of the Constitution. Clearly then, the policy of the law mandated by the Constitution frowns at a suspension of indefinite duration. In this particular case, the mere fact that petitioner is facing a charge under the Anti-Graft and Corrupt

Practices Act does not justify a different rule of law. To do so would be to negate the safeguard of the equal protection guarantee. 11 The case of Deloso, likewise, involved another elective official whowas preventively suspended as provincial governor, also under RA 3019 the Anti-Graft Law. This Court, faced with similar factual circumstances as in Layno, applied the ruling in the latter case "in relation to the principles of due process and equal protection." It is readily apparent that Section 13 of R.A. 3019 upon which the preventive suspension of the accused in Layno and Deloso was based is silent with respect to the duration of the preventive suspension, such that the suspension of the accused therein for a prolonged and unreasonable length of time raised a due process question. Not so in the instant case. Petitioner is charged with murder under the Revised Penal Code and it is undisputed that he falls squarely under Sec. 47 of R.A. 6975 which categorically states that his suspension shall last until the case is terminated. The succeeding sentence of the same section requires the case to be subjected to continuous trial which shall be terminated within ninety (90) days from arraignment of the accused. As previously emphasized, nowhere in the law does it say that after the lapse of the 90-day period for trial, the preventive suspension should be lifted. The law is clear, the ninety (90) days duration applies to the trial of the case not to the suspension. Nothing else should be read into the law. When the words and phrases of the statute are clear and unequivocal, their meaning determined from the language employed and the statute must be taken to mean exactly what it says. 12 Fourth. From the deliberations of the Bicameral Conference Committee on National Defense relative to the bill that became R.A. 6975, the meaning of Section 47 of R.A. 6975 insofar as the period of suspension is concerned becomes all the more clear. We quote: So other than that in that particular section, ano ba itong "Jurisdiction in Criminal Cases?" What is this all about? REP. ZAMORA. In case they are charged with crimes. THE CHAIRMAN (SEN. MACEDA). Ah, the previous one is administrative, no. Now, if it is charged with a crime, regular courts. SEN. GONZALES. Ano, the courts mismo ang magsasabing . . . THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction. REP. ZAMORA. The jurisdiction if there is robbery. THE CHAIRMAN (SEN. MACEDA). Okay. "Preventive Suspension Pending Criminal Case. Upon the filing of a complaint or informations sufficient in form and substance against a member of the PNP for grave felonies where the penalty imposed by law is six years and one day or more, the court shall immediately suspend the accused from the office until the case is terminated." REP. ALBANO. Where are we now Mr. Chairman. THE CHAIRMAN (SEN. MACEDA). Grave felonies ito e. Six years and one day or more. SEN. SAGUISAG. Kung five years and litigation ng Supreme Court, ganoon ba and . . .? THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong iba panay disciplinary iyon e. SEN. PIMENTEL. Anong page iyan, Rene? THE CHAIRMAN (SEN. MACEDA). Page 29 Preventive Suspension.

REP. GUTANG. Ang complaint kasi ng mga tao, pagka may pulis na may criminal case at may baril pa rin at nag-uuniforme, hindi magandang tingnan e. So parang natatakot iyong mga witnesses. SEN. GONZALES. Anyway, kung ma-exempt na rito naman siya e. REP. GUTANG. Mayroong entitlement to reinstatement and pay. . . . xxx xxx xxx SEN. PIMENTEL. Dito sa "Preventive Suspension Pending Criminal Case." Okay ito but I think we should also mandate the early termination of the case. Ibig sabihin, okay, hindi ba "the suspension of the accused from office until the case is terminated?" Alam naman natin ang takbo ng mga kaso rito sa ating bansa e. REP. ZAMORA. Twenty days, okay na. SEN. PIMENTEL. Hindi, and ibig kong sabihin, let us just assume that a case can be, as Rene pointed out, can run to six years bagoma-terminate, sometimes ten years pa nga e. Okay, but maybe we should mandate. . . REP. ZAMORA. Continuous hearing. SEN. PIMENTEL. Not only that, but the case must be terminated within a period. REP. ALBANO. Ninety days na ho sa Supreme Court the trial. SEN. PIMENTEL. Ha? REP. ALBANO. The trial must be done within ninety days, SEN. PIMENTEL. Ang ibig kong sabihin kung maari sanang ilagay rito that the case shall also be terminated in one year from the time . . . aywan ko kung kaya nating gawin iyon. REP. ALBANO. One solution, Mr. Chairman. THE CHAIRMAN (SEN. MACEDA). Criminal case? Hindi ba that has all been held as directory even if you put it in the law? SEN. PIMENTEL. I know, but, iyon na nga, we are looking at some solution to a particular situation. SEN. ANGARA. Let's have continuous hearing and be terminated not later than ninety days. REP. ZAMORA. Ang point ni Ernie, that's really only the directory. All of these, well, looks exactly the same thing. SEN. ANGARA. No, but at least, we will shorten it up in a case like this. We are really keen on having it quick, swift. SEN. PIMENTEL. Swift justice. REP. ALBANO. Mr. Chairman. THE CHAIRMAN. (SEN. MACEDA). Yes. REP. ALBANO. Following the Veloso case in Anti-graft cases before the Sandiganbayan, the preventive suspension is only ninety days. In no case shall it go beyond ninety days which can also be applicable here because this is a preventive suspension.

SEN. PIMENTEL. No, because you can legislate at least. SEN. SAGUISAG. But then the case may be anti-graft ha. The case filed against a policeman may be anti-graft in nature. . . SEN. PIMENTEL. Correct, correct, but is that a constitutional provision? Is it? REP. ALBANO. No, but as a standard procedure. SEN. PIMENTEL. Then you can legislate. THE CHAIRMAN (SEN. MACEDA). No, because this particular provision is for criminal cases. I know anti-graft is a criminal case but here we are talking, let's say, of murder, rape, treason, robbery. That's why it is in that context that there is a difference between a purely anti-graft case and a criminal case which could be a serious case since it is six years and one day or more, so it must be already a grave felony. xxx xxx xxx REP. ALBANO. . . . What I mean to say is, preventive suspension, we can use the Veloso case. THE CHAIRMAN (SEN. MACEDA). No, that's too short, that's what I am saying. The feeling here is, for policeman, we have to be stricter especially if it is a criminal case. What Rene is just trying to say is, he is agreeable that the suspension is until the case is terminated, but he just wants some administrative balancing to expedite it. So let us study what kind of language could be done along that line. So just on the National Police Commission . . . SEN. ANGARA. Can I suggest a language that may reflect. . . THE CHAIRMAN (SEN. MACEDA). Okay, please. SEN. ANGARA. "Such case shall be subject to continuous trial and be terminated not later than . . ." whatever we agree. THE CHAIRMAN (SEN. MACEDA). Okay, so let's study that. So if there are any further amendments to Chapter 2 on the National Police Commission. . . . . . 13 The foregoing discussions reveal the legislative intent to place on preventive suspension a member of the PNP charged with grave felonies where the penalty imposed by law exceeds six years of imprisonment and which suspension continues until the case against him is terminated. The reason why members of the PNP are treated differently from the other classes of persons charged criminally or administratively insofar as the application of the rule on preventive suspension is concerned is that policemen carry weapons and the badge of the law which can be used to harass or intimidate witnesses against them, as succinctly brought out in the legislative discussions. If a suspended policeman criminally charged with a serious offense is reinstated to his post while his case is pending, his victim and the witnesses against him are obviously exposed to constant threat and thus easily cowed to silence by the mere fact that the accused is in uniform and armed. The imposition of preventive suspension for over 90 days under Section 47 ofR.A. 6975 does not violate the suspended policeman's constitutional right to equal protection of the laws.

The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, the equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions both as to the privileges conferred and liabilities enforced. 14 Thus, the equal protection clause does not absolutely forbid classifications, such as the one which exists in the instant case. If the classification is based on real and substantial differences; 15 is germane to the purpose of the law; 16 applies to all members of the sameclass; 17 and applies to current as well as future conditions, 18 the classification may not be impugned as violating the Constitution's equal protection guarantee. A distinction based on real and reasonable considerations related to a proper legislative purpose such as that which exists here is neither unreasonable, capricious nor unfounded. ACCORDINGLY, the petition is hereby DISMISSED. SO ORDERED. Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and Mendoza, JJ., concur. Feliciano, Padilla and Bidin, JJ., are on leave. EN BANC

G.R. No. 105371 November 11, 1993 THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its President, BERNARDO P. ABESAMIS, Vice-President for Legal Affairs, MARIANO M. UMALI, Director for Pasig, Makati, and Pasay, Metro Manila, ALFREDO C. FLORES, and Chairman of the Committee on Legal Aid, JESUS G. BERSAMIRA, Presiding Judges of the Regional Trial Court, Branch 85, Quezon City and Branches 160, 167 and 166, Pasig, Metro Manila, respectively: the NATIONAL CONFEDERATION OF THE JUDGES ASSOCIATION OF THE PHILIPPINES, composed of the METROPOLITAN TRIAL COURT JUDGES ASSOCIATION rep. by its President. REINATO QUILALA of the MUNICIPAL TRIAL CIRCUIT COURT, Manila; THE MUNICIPAL JUDGES LEAGUE OF THE PHILIPPINES rep. by its President, TOMAS G. TALAVERA; by themselves and in behalf of all the Judges of the Regional Trial and Shari'a Courts, Metropolitan Trial Courts and Municipal Courts throughout the Country, petitioners, vs.HON. PETE PRADO, in his capacity as Secretary of the Department of Transportation and Communications, JORGE V. SARMIENTO, in his capacity as Postmaster General, and the PHILIPPINE POSTAL CORP., respondents.

CRUZ, J.: The basic issue raised in this petition is the independence of the Judiciary. It is asserted by the petitioners that this hallmark of republicanism is impaired by the statute and circular they are here challenging. The Supreme Court is itself affected by these measures and is thus an interested party that should ordinarily not also be a judge at the same time. Under our system of government, however, it cannot inhibit itself and must rule upon the challenge, because no other office has the authority to do so. We shall therefore act upon this matter not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness. The main target of this petition is Section 35 of R.A. No. 7354 as implemented by the Philippine Postal Corporation through its Circular No.92-28. These measures withdraw the franking privilege from the Supreme Court, the Court of Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial Courts, and the Land Registration Commission and its Registers of Deeds, along with certain other government

offices. The petitioners are members of the lower courts who feel that their official functions as judges will be prejudiced by the above-named measures. The National Land Registration Authority has taken common cause with them insofar as its own activities, such as sending of requisite notices in registration cases, affect judicial proceedings. On its motion, it has been allowed to intervene. The petition assails the constitutionality of R.A. No. 7354 on the grounds that: (1) its title embraces more than one subject and does not express its purposes; (2) it did not pass the required readings in both Houses of Congress and printed copies of the bill in its final form were not distributed among the members before its passage; and (3) it is discriminatory and encroaches on the independence of the Judiciary. We approach these issues with one important principle in mind, to wit, the presumption of the constitutionality of statutes. The theory is that as the joint act of the Legislature and the Executive, every statute is supposed to have first been carefully studied and determined to be constitutional before it was finally enacted. Hence, unless it is clearly shown that it is constitutionally flawed, the attack against its validity must be rejected and the law itself upheld. To doubt is to sustain. I We consider first the objection based on Article VI, Sec. 26(l), of the Constitution providing that "Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof." The purposes of this rule are: (1) to prevent hodge-podge or "log-rolling" legislation; (2) to prevent surprise or fraud upon the legislature by means of provisions in bills of which the title gives no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and (3) to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subject of legislation that is being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire. 1 It is the submission of the petitioners that Section 35 of R.A. No. 7354 which withdrew the franking privilege from the Judiciary is not expressed in the title of the law, nor does it reflect its purposes. R.A. No. 7354 is entitled "An Act Creating the Philippine Postal Corporation, Defining its Powers, Functions and Responsibilities, Providing for Regulation of the Industry and for Other Purposes Connected Therewith." The objectives of the law are enumerated in Section 3, which provides: The State shall pursue the following objectives of a nationwide postal system: a) to enable the economical and speedy transfer of mail and other postal matters, from sender to addressee, with full recognition of their privacy or confidentiality; b) to promote international interchange, cooperation and understanding through the unhampered flow or exchange of postal matters between nations; c) to cause or effect a wide range of postal services to cater to different users and changing needs, including but not limited to, philately, transfer of monies and valuables, and the like; d) to ensure that sufficient revenues are generated by and within the industry to finance the overall cost of providing the varied range of postal delivery and messengerial services as well as the expansion and continuous upgrading of service standards by the same.

Sec. 35 of R.A. No. 7354, which is the principal target of the petition, reads as follows: Sec. 35. Repealing Clause. All acts, decrees, orders, executive orders, instructions, rules and regulations or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly. All franking privileges authorized by law are hereby repealed, except those provided for under Commonwealth Act No. 265, Republic Acts Numbered 69, 180, 1414, 2087 and 5059. The Corporation may continue the franking privilege under Circular No. 35 dated October 24, 1977 and that of the Vice President, under such arrangements and conditions as may obviate abuse or unauthorized use thereof. The petitioners' contention is untenable. We do not agree that the title of the challenged act violates the Constitution. The title of the bill is not required to be an index to the body of the act, or to be as comprehensive as to cover every single detail of the measure. It has been held that if the title fairly indicates the general subject, and reasonably covers all the provisions of the act, and is not calculated to mislead the legislature or the people, there is sufficient compliance with the constitutional requirement. 2 To require every end and means necessary for the accomplishment of the general objectives of the statute to be expressed in its title would not only be unreasonable but would actually render legislation impossible. 3 As has been correctly explained: The details of a legislative act need not be specifically stated in its title, but matter germane to the subject as expressed in the title, and adopted to the accomplishment of the object in view, may properly be included in the act. Thus, it is proper to create in the same act the machinery by which the act is to be enforced, to prescribe the penalties for its infraction, and to remove obstacles in the way of its execution. If such matters are properly connected with the subject as expressed in the title, it is unnecessary that they should also have special mention in the title (Southern Pac. Co. v. Bartine, 170 Fed. 725). This is particularly true of the repealing clause, on which Cooley writes: "The repeal of a statute on a given subject is properly connected with the subject matter of a new statute on the same subject; and therefore a repealing section in the new statute is valid, notwithstanding that the title is silent on the subject. It would be difficult to conceive of a matter more germane to an act and to the object to be accomplished thereby than the repeal of previous legislations connected therewith." 4 The reason is that where a statute repeals a former law, such repeal is the effect and not the subject of the statute; and it is the subject, not the effect of a law, which is required to be briefly expressed in its title. 5 As observed in one case, 6 if the title of an act embraces only one subject, we apprehend it was never claimed that every other act which repeals it or alters by implication must be mentioned in the title of the new act. Any such rule would be neither within the reason of the Constitution, nor practicable. We are convinced that the withdrawal of the franking privilege from some agencies is germane to the accomplishment of the principal objective of R.A. No. 7354, which is the creation of a more efficient and effective postal service system. Our ruling is that, by virtue of its nature as a repealing clause, Section 35 did not have to be expressly included in the title of the said law. II The petitioners maintain that the second paragraph of Sec. 35 covering the repeal of the franking privilege from the petitioners and this Court under E.O. 207, PD 1882 and PD 26 was not included in the original version of Senate Bill No. 720 or House Bill No. 4200. As this paragraph appeared only in the Conference Committee Report, its addition, violates Article VI, Sec. 26(2) of the Constitution, reading as follows:

(2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that amendment to any bill when the House and the Senate shall have differences thereon may be settled by a conference committee of both chambers. They stress that Sec. 35 was never a subject of any disagreement between both Houses and so the second paragraph could not have been validly added as an amendment. These argument are unacceptable. While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is described thus: A conference committee may, deal generally with the subject matter or it may be limited to resolving the precise differences between the two houses. Even where the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into the conference bill. But occasionally a conference committee produces unexpected results, results beyond its mandate, These excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian power of conference committee (Davies, Legislative Law and Process: In a Nutshell, 1986 Ed., p.81). It is a matter of record that the conference Committee Report on the bill in question was returned to and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House of Representatives as having been duly passed by both Houses of Congress. It was then presented to and approved by President Corazon C. Aquino on April 3, 1992. Under the doctrine of separation powers, the Court may not inquire beyond the certification of the approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez 7 laid down the rule that the enrolled bill, is conclusive upon the Judiciary (except in matters that have to be entered in the journals like the yeas and nays on the final reading of thebill). 8 The journals are themselves also binding on the Supreme Court, as we held in the old (but still valid) case of U.S. vs. Pons, 9 where we explained the reason thus: To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said, clear and explicit, would be to violate both the, letter and spirit of the organic laws by which the Philippine Government was brought into existence, to invade a coordinate and independent department of the Government, and to interfere with the legitimate powers and functions, of the Legislature. Applying these principles, we shall decline to look into the petitioners' charges that an amendment was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies thereof in its final form were not distributed among the members of each House. Both the enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with Article VI, Sec. 26(2) of the Constitution. We are bound by such official assurances from a coordinate department of the government, to which we owe, at the very least, a becoming courtesy. III The third and most serious challenge of the petitioners is based on the equal protection clause.

It is alleged that R.A. No. 7354 is discriminatory because while withdrawing the franking privilege from the Judiciary, it retains the same for the President of the Philippines, the Vice President of the Philippines; Senators and Members of the House of Representatives, the Commission on Elections; former Presidents of the Philippines; the National Census and Statistics Office; and the general public in the filing of complaints against public offices and officers. 10 The respondents counter that there is no discrimination because the law is based on a valid classification in accordance with the equal protection clause. In fact, the franking privilege has been withdrawn not only from the Judiciary but also the Office of Adult Education, the Institute of National Language; the Telecommunications Office; the Philippine Deposit Insurance Corporation; the National Historical Commission; the Armed Forces of the Philippines; the Armed Forces of the Philippines Ladies Steering Committee; the City and Provincial Prosecutors; the Tanodbayan (Office of Special Prosecutor); the Kabataang Barangay; the Commission on the Filipino Language; the Provincial and City Assessors; and the National Council for the Welfare of Disabled Persons. 11 The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate clause in Article III Sec. 1., of the Constitution to provide for a more, specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed, 12 Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The equal protection clause does not require the universal application of the laws on all persons or things without distinction. This might in fact sometimes result in unequal protection, as where, for example, a law prohibiting mature books to all persons, regardless of age, would benefit the morals of the youth but violate the liberty of adults. What the clause requires is equality among equals as determined according to a valid classification. By classification is meant the grouping of persons or things similar to each other in certain particulars and different from all others in these same particulars. 13 What is the reason for the grant of the franking privilege in the first place? Is the franking privilege extended to the President of the Philippines or the Commission on Elections or to former Presidents of the Philippines purely as a courtesy from the lawmaking body? Is it offered because of the importance or status of the grantee or because of its need for the privilege? Or have the grantees been chosen pell-mell, as it were, without any basis at all for the selection? We reject outright the last conjecture as there is no doubt that the statute as a whole was carefully deliberated upon, by the political departments before it was finally enacted. There is reason to suspect, however, that not enough care or attention was given to its repealing clause, resulting in the unwitting withdrawal of the franking privilege from the Judiciary. We also do not believe that the basis of the classification was mere courtesy, for it is unimaginable that the political departments would have intended this serious slight to the Judiciary as the third of the major and equal departments the government. The same observations are made if the importance or status of the grantee was the criterion used for the extension of the franking privilege, which is enjoyed by the National Census and Statistics Office and even some private individuals but not the courts of justice. In our view, the only acceptable reason for the grant of the franking privilege was the perceived need of the grantee for the accommodation, which would justify a waiver of substantial revenue by the Corporation in the interest of providing for a smoother flow of communication between the government and the people.

Assuming that basis, we cannot understand why, of all the departments of the government, it is the Judiciary, that has been denied the franking privilege. There is no question that if there is any major branch of the government that needs the privilege, it is the Judicial Department, as the respondents themselves point out. Curiously, the respondents would justify the distinction on the basis precisely of this need and, on this basis, deny the Judiciary the franking privilege while extending it to others less deserving. In their Comment, the respondents point out that available data from the Postal Service Office show that from January 1988 to June 1992, the total volume of frank mails amounted to P90,424,175.00. Of this amount, frank mails from the Judiciary and other agencies whose functions include the service of judicial processes, such as the intervenor, the Department of Justice and the Office of the Ombudsman, amounted to P86,481,759. Frank mails coming fromthe Judiciary amounted to P73,574,864.00, and those coming from the petitioners reached the total amount of P60,991,431.00. The respondents' conclusion is that because of this considerable volume of mail from the Judiciary, the franking privilege must be withdrawn from it. The argument is self-defeating. The respondents are in effect saying that the franking privilege should be extended only to those who do not need it very much, if at all, (like the widows of former Presidents) but not to those who need it badly (especially the courts of justice). It is like saying that a person may be allowed cosmetic surgery although it is not really necessary but not an operation that can save his life. If the problem of the respondents is the loss of revenues from the franking privilege, the remedy, it seems to us, is to withdraw it altogether from all agencies of government, including those who do not need it. The problem is not solved by retaining it for some and withdrawing it from others, especially where there is no substantial distinction between those favored, which may or may not need it at all, and the Judiciary, which definitely needs it. The problem is not solved by violating the Constitution. In lumping the Judiciary with the other offices from which the franking privilege has been withdrawn, Section 35 has placed the courts of justice in a category to which it does not belong. If it recognizes the need of the President of the Philippines and the members of Congress for the franking privilege, there is no reason why it should not recognize a similar and in fact greater need on the part of the Judiciary for such privilege. While we may appreciate the withdrawal of the franking privilege from the Armed Forces of the Philippines Ladies Steering Committee, we fail to understand why the Supreme Court should be similarly treated as that Committee. And while we may concede the need of the National Census and Statistics Office for the franking privilege, we are intrigued that a similar if not greater need is not recognized in the courts of justice. (On second thought, there does not seem to be any justifiable need for withdrawing the privilege from the Armed Forces of the Philippines Ladies Steering Committee, which, like former Presidents of the Philippines or their widows, does not send as much frank mail as the Judiciary.) It is worth observing that the Philippine Postal Corporation, as a government-controlled corporation, was created and is expected to operate for the purpose of promoting the public service. While it may have been established primarily for private gain, it cannot excuse itself from performing certain functions for the benefit of the public in exchange for the franchise extended to it by the government and the many advantages it enjoys under its charter. 14 Among the services it should be prepared to extend is free carriage of mail for certain offices of the government that need the franking privilege in the discharge of their own public functions. We also note that under Section 9 of the law, the Corporation is capitalized at P10 billion pesos, 55% of which is supplied by the Government, and that it derives substantial revenues from the sources enumerated in Section 10, on top of the exemptions it enjoys. It is not likely that the retention of the franking privilege of the Judiciary will cripple the Corporation.

At this time when the Judiciary is being faulted for the delay in the administration of justice, the withdrawal from it of the franking privilege can only further deepen this serious problem. The volume of judicial mail, as emphasized by the respondents themselves, should stress the dependence of the courts of justice on the postal service for communicating with lawyers and litigants as part of the judicial process. The Judiciary has the lowest appropriation in the national budget compared to the Legislative and Executive Departments; of the P309 billion budgeted for 1993, only .84%, or less than 1%, is alloted for the judiciary. It should not be hard to imagine the increased difficulties of our courts if they have to affix a purchased stamp to every process they send in the discharge of their judicial functions. We are unable to agree with the respondents that Section 35 of R.A. No. 7354 represents a valid exercise of discretion by the Legislature under the police power. On the contrary, we find its repealing clause to be a discriminatory provision that denies the Judiciary the equal protection of the laws guaranteed for all persons or things similarly situated. The distinction made by the law is superficial. It is not based on substantial distinctions that make real differences between the Judiciary and the grantees of the franking privilege. This is not a question of wisdom or power into which the Judiciary may not intrude. It is a matter of arbitrariness that this Court has the duty and power to correct. IV In sum, we sustain R.A. No. 7354 against the attack that its subject is not expressed in its title and that it was not passed in accordance with the prescribed procedure. However, we annul Section 35 of the law as violative of Article 3, Sec. 1, of the Constitution providing that no person shall "be deprived of the equal protection of laws." We arrive at these conclusions with a full awareness of the criticism it is certain to provoke. While ruling against the discrimination in this case, we may ourselves be accused of similar discrimination through the exercise of our ultimate power in our own favor. This is inevitable. Criticism of judicial conduct, however undeserved, is a fact of life in the political system that we are prepared to accept.. As judges, we cannot debate with our detractors. We can only decide the cases before us as law imposes on us the duty to be fair and our own conscience gives us the light to be right. ACCORDINGLY, the petition is partially GRANTED and Section 35 of R.A. No. 7354 is declared UNCONSTITUTIONAL. Circular No. 92-28 is SET ASIDE insofar as it withdraws the franking privilege from the Supreme Court, the Court of Appeals, the Regional trail Courts, the Municipal trial Courts, and the National Land Registration Authority and its Register of Deeds to all of which offices the said privilege shall be RESTORED. The temporary restraining order dated June 2, 1992, is made permanent. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno and Vitug, JJ., concur. Bellosillo, J., is on leave.

EN BANC

G.R. No. L-30026 January 30, 1971 MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO PADUA and PATERNO PALMARES, petitioners, vs.THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.

Jose W. Diokno for petitioners. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and Solicitor Eduardo C. Abaya for respondent.

FERNANDO, J.: Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number, for their release from imprisonment. Meted out life terms for the complex crime of rebellion with murder and other crimes, they would invoke the People v. Hernandez1 doctrine, negating the existence of such an offense, a ruling that unfortunately for them was not handed down until after their convictions had become final. Nor is this the first instance, a proceeding of this character was instituted, as in Pomeroy v. Director of Prisons,2 likewise a petition for habeas corpus, a similar question was presented. The answer given was in the negative. Petitioners plead for a new look on the matter. They would premise their stand on the denial of equal protection if their plea would not be granted. Moreover they did invoke the codal provision that judicial decisions shall form part of the legal system of the Philippines,3 necessarily resulting in the conclusion that the Hernandez decision once promulgated calls for a retroactive effect under the explicit mandate of the Revised Penal Code as to penal laws having such character even if at the time of their application a final sentence has been rendered "and the convict is serving the same."4 These arguments carry considerable persuasion. Accordingly we find for petitioners, without going so far as to overrule Pomeroy. Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to suffer reclusion perpetua for the complex crime of rebellion with multiple murder, robbery, arson and kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares and Epifanio Padua, likewise pleaded guilty to the complex crime of rebellion with multiple murder and other offenses, and were similarly made to suffer the same penalty in decisions rendered, as to the first two, on March 8, 1954 and, as to the third, on December 15, 1955. The last petitioner, Blas Bagolbagol, stood trial also for the complex crime of rebellion with multiple murder and other offenses and on January 12, 1954 penalized with reclusion perpetua. Each of the petitioners has been since then imprisoned by virtue of the above convictions. Each of them has served more than 13 years.5 Subsequently, in People v. Hernandez, 6 as above noted, this Court ruled that the information against the accused in that case for rebellion complexed with murder, arson and robbery was not warranted under Article 134 of the Revised Penal Code, there being no such complex offense.7 In the recently-decided case of People vs. Lava,8 we expressly reaffirmed the ruling in the Hernandez case rejecting the plea of the Solicitor General for the abandonment of such doctrine. It is the contention of each of the petitioners that he has served, in the light of the above, more than the maximum penalty that could have been imposed upon him. He is thus entitled to freedom, his continued detention being illegal.9 The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas corpus proceeding prompted petitioners, as had been mentioned, to ask that it be appraised anew and, if necessary, discarded. We can resolve the present petition without doing so. The plea there made was unconvincing, there being a failure to invoke the contentions now pressed vigorously by their counsel, Attorney Jose W. Diokno, as to the existence of a denial of a constitutional right that would suffice to raise a serious jurisdictional question and the retroactive effect to be given a judicial decision favorable to one already sentenced to a final judgment under Art. 22 of the Revised Penal Code. To repeat, these two grounds carry weight. We have to grant this petition. 1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the circumstances disclosed. Its latitudinarian scope to assure that illegality of restraint and detention be avoided is one of the truisms of the law. It is not known as the writ of liberty for nothing. The writ imposes on judges the grave responsibility of ascertaining whether there is any legal justification for a deprivation of physical freedom. Unless there

be such a showing, the confinement must thereby cease. If there be a valid sentence it cannot, even for a moment, be extended beyond the period provided for by law. Any deviation from the legal norms call for the termination of the imprisonment. Rightly then could Chafee refer to the writ as "the most important human rights provision" in the fundamental law. 10 Nor is such praise unique. Cooley spoke of it as "one of the principal safeguards to personal liberty." 11 For Willoughby, it is "the greatest of the safeguards erected by the civil law against arbitrary and illegal imprisonment by whomsoever detention may be exercised or ordered." 12 Burdick echoed a similar sentiment, referring to it as "one of the most important bulwarks of liberty." 13 Fraenkel made it unanimous, for to him, "without it much else would be of no avail." 14 Thereby the rule of law is assured. A full awareness of the potentialities of the writ of habeas corpus in the defense of liberty coupled with its limitations may be detected in the opinions of former Chief Justices Arellano, 15 Avancea, 16 Abad Santos, 17 Paras, 18 Bengzon, 19 and the present Chief Justice. 20 It fell to Justice Malcolm's lot, however to emphasize quite a few times the breadth of its amplitude and of its reach. In Villavicencio v. Lukban, 21 the remedy came in handy to challenge the validity of the order of the then respondent Mayor of Manila who, for the best of reasons but without legal justification, ordered the transportation of more than 150 inmates of houses of ill-repute to Davao. After referring to the writ of habeas corpus as having been devised and existing "as a speedy and effectual remedy to relieve persons from unlawful restraint" the opinion of Justice Malcolm continued: "The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient."
22

The liberality with which the judiciary is to construe habeas corpus petitions even if presented in pleadings on their face devoid of merit was demonstrated in Ganaway v. Quilen, 23 where this Court, again through Justice Malcolm, stated: "As standing alone the petition for habeas corpus was fatally defective in its allegations, this court, on its motion, ordered before it the record of the lower court in the case entitled Thomas Casey, et al. v. George Ganaway." 24 It is to Justice Malcolm likewise in Conde v. Rivera, 25 to whom is traceable the doctrine, one that broadens the field of the operation of the writ, that a disregard of the constitutional right to speedy trial ousts the court of jurisdiction and entitles the accused if "restrained of his liberty, by habeas corpus to obtain his freedom." 26 So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the matter thus: "The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause." Then there is this affirmation from an 1869 decision 28 of the then Chief Justice Chase: "The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defense of personal freedom." The passing of the years has only served to confirm its primacy as a weapon on in the cause of liberty. Only the other year, Justice Fortas spoke for the United States Supreme Court thus: "The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. ... The scope and flexibility of the writ its capacity to reach all manner of illegal detention its ability to cut through barriers of form and procedural mazes have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." 29 Justice Fortas explicitly made reference to Blackstone, who spoke of it as "the great and efficacious writ, in all manner of illegal confinement." Implicit in his just estimate of its pre-eminent role is his adoption of Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus cuts through all forms and goes to the very tissue of the structure." 2. Where, however, the detention complained of finds its origin in what has been judicially ordained, the range of inquiry in a habeas corpus proceeding is considerably narrowed. For if "the person alleged to be restrained of his liberty is in the custody of an

officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order," the writ does not lie. 31 That principle dates back to 1902, 32 when this Court announced that habeas corpus was unavailing where the person detained was in the custody of an officer under process issued by a court or magistrate. This is understandable, as during the time the Philippines was under American rule, there was necessarily an adherence to authoritative doctrines of constitutional law there followed. One such principle is the requirement that there be a finding of jurisdictional defect. As summarized by Justice Bradley in Ex parte Siebold, an 1880 decision: "The only ground on which this court, or any court, without some special statute authorizing it, will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void." 33 There is the fundamental exception though, that must ever be kept in mind. Once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention. 34 3. Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of equal protection. According to their petition: "In the case at bar, the petitioners were convicted by Courts of First Instance for the very same rebellion for which Hernandez, Geronimo, and others were convicted. The law under which they were convicted is the very same law under which the latter were convicted. It had not and has not been changed. For the same crime, committed under the same law, how can we, in conscience, allow petitioners to suffer life imprisonment, while others can suffer only prision mayor?" 35 They would thus stress that, contrary to the mandate of equal protection, people similarly situated were not similarly dealt with. What is required under this required constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision: "Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 36 The argument of petitioners thus possesses a persuasive ring. The continued incarceration after the twelve-year period when such is the maximum length of imprisonment in accordance with our controlling doctrine, when others similarly convicted have been freed, is fraught with implications at war with equal protection. That is not to give it life. On the contrary, it would render it nugatory. Otherwise, what would happen is that for an identical offense, the only distinction lying in the finality of the conviction of one being before the Hernandez ruling and the other after, a person duly sentenced for the same crime would be made to suffer different penalties. Moreover, as noted in the petition before us, after our ruling in People v. Lava, petitioners who were mere followers would be made to languish in jail for perhaps the rest of their natural lives when the leaders had been duly considered as having paid their penalty to society, and freed. Such a deplorable result is to be avoided. 4. Petitioners likewise, as was made mention at the outset, would rely on Article 22 of the Revised Penal Code which requires that penal judgment be given a retroactive effect. In support of their contention, petitioners cite U.S. v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v. Almencion, 39 People v. Moran, 40 and People v. Parel. 41 While reference in the above provision is made not to judicial decisions but to legislative acts, petitioners entertain the view that it would be merely an exaltation of the literal to deny its application to a case like the present. Such a belief has a firmer foundation. As was previously noted, the Civil Code provides that judicial decisions applying or interpreting the Constitution, as well as

legislation, form part of our legal system. Petitioners would even find support in the wellknown dictum of Bishop Hoadley: "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first thought or spoke them." It is to be admitted that constitutional law scholars, notably Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the jurist John Chipman Gray, were much impressed with the truth and the soundness of the above observations. We do not have to go that far though. Enough for present purposes that both the Civil Code and the Revised Penal Code allow, if they do not call for, a retroactive application. It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had served the full term for which they could have been legally committed, is habeas corpus the appropriate remedy? The answer cannot be in doubt. As far back as 1910 the prevailing doctrine was announced in Cruz v. Director of Prisons. 45 Thus: "The courts uniformly hold that where a sentence imposes punishment in excess of the power of the court to impose, such sentence is void as to the excess, and some of the courts hold that the sentence is void in toto; but the weight of authority sustains the proposition that such a sentence is void only as to the excess imposed in case the parts are separable, the rule being that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has served out so much of the sentence as was valid." 46 There is a reiteration of such a principle in Director v. Director of Prisons 47 where it was explicitly announced by this Court "that the only means of giving retroactive effect to a penal provision favorable to the accused ... is the writ of habeas corpus." 48 While the above decision speaks of a trial judge losing jurisdiction over the case, insofar as the remedy of habeas corpus is concerned, the emphatic affirmation that it is the only means of benefiting the accused by the retroactive character of a favorable decision holds true. Petitioners clearly have thus successfully sustained the burden of justifying their release. WHEREFORE, the petition for habeas corpus is granted, and it is ordered that petitioners be forthwith set at liberty. Dizon and Zaldivar, JJ., concur. Concepcion, C.J., concurs in the result. Castro and Makasiar, JJ., took no part.

EN BANC

G.R. No. 128096 January 20, 1999 PANFILO M. LACSON, petitioner, vs. THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP, IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES, respondent. ROMEO M. ACOP AND FRANCISCO G. ZUBIA, JR., petitioner-intervenors.

MARTINEZ, J.:

The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which further defines the jurisdiction of the Sandiganbayan is being challenged in this petition for prohibition and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceedings with the trial of Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground of lack of jurisdiction. The antecedents of this case, as gathered from the parties' pleadings and documentary proofs, are as follows: In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong Baleleng gang, reportedly an organized crime syndicate which had been involved in a spate of bank robberies in Metro Manila, where slain along Commonwealth Avenue in Quezon City by elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by Chieff Superintendent Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed of police officers from the Traffic Management Command (TMC) led by petitioner-intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson; Central Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop. Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate the incident. This panel later absolved from any criminal liability all the PNP officers and personal allegedly involved in May 18, 1995 incident, with a finding that the said incident was a legitimate police operation. 1 However, a review board led by Overall Deputy Ombudsman Francisco Villa modified modified the Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-six (26) respondents, including herein petitioner and intervenors. The recommendation was approved by the Ombudsman except for the withdrawal of the charges against Chief Supt. Ricardo de Leon. Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in eleven (11) information for murder 2 before the Sandiganbayan's Second Division, while intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same informations as accessories after-in-the-fact. Upon motion by all the accused in the 11 information, 3 the Sandiganbayan allowed them to file a motion for reconsideration of the Ombudsman's action. 4 After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended informations 5 before the Sandiganbayan, wherein petitioner was charged only as an accessory, together with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused 6 was dropped from the case. On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the Sandiganbayan, asserting that under the amended informations, the cases fall within the jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975. 7 They contend that the said law limited the jurisdiction of the Sandiganbayan to cases where one or more of the "principal accused" are government officials with Salary Grade (SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The highest ranking principal accused in the amended informations has the rank of only a Chief Inspector, and none has the equivalent of at least SG 27. Thereafter, in a Resolution 8 dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice Demetriou, with Justices Lagman and de Leon concurring, and Justices

Balajadia and Garchitorena dissenting, 9 the Sandiganbayan admitted the amended information and ordered the cases transferred to the Quezon City Regional Trial Court which has original and exclusive jurisdiction under R.A. 7975, as none of the principal accused has the rank of Chief Superintendent or higher. On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the accused. While these motions for reconsideration were pending resolution, and even before the issue of jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill No. 2299 10 and No. 1094 11 (sponsored by Representatives Edcel C. Lagman and Lagman and Neptali M. Gonzales II, respectively), as well as Senate Bill No. 844 12 (sponsored by Senator Neptali Gonzales), were introduced in Congress, defining expanding the jurisdiction of the Sandiganbayan. Specifically, the said bills sought, among others, to amend the jurisdiction of the Sandiganbayan by deleting the word "principal" from the phrase "principal accused" in Section 2 (paragraphs a and c) of R.A. No. 7975. These bills were consolidated and later approved into law as R.A. No. 8249 President of the Philippines on February 5, 1997.
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by the

Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution 14 denying the motion for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution dated May 8, 1996." On the same day 15 the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution, the pertinent portion of which reads: After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it, but before Justice de Leon. Jr. rendered his concurring and dissenting opinion, the legislature enacted Republic Act 8249 and the President of the Philippines approved it on February 5, 1997. Considering the pertinent provisions of the new law, Justices Lagman and Demetriou are now in favor of granting, as they are now granting, the Special Prosecutor's motion for reconsideration. Justice de Leon has already done so in his concurring and dissenting opinion. xxx xxx xxx Considering that three of the accused in each of these cases are PNP Chief Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson, and that trial has not yet begun in all these cases in fact, no order of arrest has been issued this court has competence to take cognizance of these cases. To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2, the court admitted the Amended Informations in these cases by the unanimous vote of 4 with 1 neither concurring not dissenting, retained jurisdiction to try and decide the cases 16 (Empahasis supplied) Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7 thereof which provides that the said law "shall apply to all cases pending in any court over which trial has not begun as to the approval hereof." Petitioner argues that: a) The questioned provisions of the statute were introduced by the authors thereof in bad faith as it was made to precisely suit the situation in which petitioner's cases were in at the Sandiganbayan by restoring jurisdiction thereof to it, thereby violating his right to procedural due process and the equal protection clause of the Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine (9) months the resolution of a pending incident involving the transfer of the cases to the Regional Trial Court, the passage of the law may have been timed to overtake such resolution to render the issue therein moot, and frustrate the exercise of petitioner's vested rights under the old Sandiganbayan law (RA 7975)

b) Retroactive application of the law is plan from the fact that it was again made to suit the peculiar circumstances in which petitioner's cases were under, namely, that the trial had not yet commenced, as provided in Section 7, to make certain that those cases will no longer be remanded to the Quezon City Regional Trial Court, as the Sandiganbayan alone should try them, thus making it an ex post facto legislation and a denial of the right of petitioner as an accused in Criminal Case Nos. 23047-23057 to procedural due process. c) The title of the law is misleading in that it contains the aforesaid "innocuous" provisions in Sections 4 and 7 which actually expands rather than defines the old Sandiganbayan law (RA 7975), thereby violating the one-title one-subject requirement for the passage of statutes under Section 26 (1), Article VI of the Constitution. 17 For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No. 8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the introduction of Section 4 and 7 in said statute impressed upon it the character of a class legislation and an ex-post facto statute intended to apply specifically to the accused in the Kuratong Baleleng case pending before the Sandiganbayan. 18 They further argued that if their case is tried before the Sandiganbayan their right to procedural due process would be violated as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired under R.A. 7975, before recourse to the Supreme Court. Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support of the constitutionality of the challenged provisions of the law in question and praying that both the petition and the petition-in-intervention be dismissed. This Court then issued a Resolution 19 requiring the parties to file simultaneously within a nonextendible period of ten (10) days from notice thereof additional memoranda on the question of whether the subject amended informations filed a Criminal Case Nos. 2304723057 sufficiently allege the commission by the accused therein of the crime charged within the meaning Section 4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive original jurisdiction of the Sandiganbayan. The parties, except for the Solicitor General who is representing the People of the Philippines, filed the required supplemental memorandum within the nonextendible reglementary period. The established rule is that every law has in its favor the presumption of constitutionality, and to justify its nullification there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative one. 20 The burden of proving the invalidity of the law lies with those who challenge it. That burden, we regret to say, was not convincingly discharged in the present case. The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973 Constitution, which provides: Sec. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees including those in government-owned or controlled corporations, in relation to their office as may be determined by law. The said special court is retained in the new (1987) Constitution under the following provisions in Article XI, Section 4: Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. Pursuant to the constitutional mandate, Presidential Decree No. 1486 21 created the Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No. 1606, 22 Section 20 of Batas Pambansa Blg. 123, 23 P.D. No.

1860, 24 P.D. No. 1861, 25 R.A. No. 7975, 26 and R.A. No. 8249. 27 Under the latest amendments introduced by Section 4 of R.A. No. 8249, the Sandiganbayan has jurisdiction over the following cases: Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further amended to read as follows: Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Titile VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippines National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher. (f) City of provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as-Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade "27" or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. c. Civil and criminal cases filed pursuant to and connection with Executive Orders Nos. 1,2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to salary Grade "27" or higher, as prescribed in the said Republic Act 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal

circuit trial court, as the case may be, pursuant to their jurisdictions as privided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions of the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14, and 4-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employee, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. xxx xxx xxx (Emphasis supplied) Sec. 7 of R.A. No. 8249 states: Sec. 7. Transitory provision This act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof. (Emphasis supplied) The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides: Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended) is hereby further amended to read as follows: Sec 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the pricipal accused are afficials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineer, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher;

(d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) PNP chief superintendent and PNP officers of higher rank; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade "27" or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. c. Civil and criminal cases files pursuant to and in connection with Executive Order Nos. 1, 2, 14, and 4-A. In cases where none of the principal accused are occupying positions corresponding to salary Grade "27" or higher, as presribed in the said Republic Act 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129. The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas from the final judgment, resolutions or orders of regular court where all the accused are occupying positions lower than grade "27," or not otherwise covered by the preceding enumeration. xxx xxx xxx In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall have exclusive jurisdiction over them. xxx xxx xxx (Emphasis supplied) Sec. 7 of R.A. No. 7975 reads: Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts. Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused" appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to this deletion of the word "principal" that the parties herein are at loggerheads over the jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the Regional Trial Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases since none of the principal accused under the amended information has the rank of Superintendent 28 or higher. On the other hand, the Office of the Ombudsman, through the Special Prosecutor who is tasked to represent the

People before the Supreme Court except in certain cases, Sandiganbayan has jurisdiction pursuant to R.A. 8249.

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contends that the

A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), 30 (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), 31 or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender comitting the offenses in items (a), (b), (c) and (e) is a public official or employee 32 holding any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office. Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to their office. "The phrase" other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accused's officials functions. Thus, under said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in pargraphs a, b and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan. Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal protection of the law 33 because its enactment was particularly directed only to the Kuratong Baleleng cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and convincing argument were presented to warrant a declaration of an act of the entire Congress and signed into law by the highest officer of the co-equal executive department as unconstitutional. Every classification made by law is presumed reasonable. Thus, the party who challenges the law must present proof of arbitrariness. 34 It is an established precept in constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. The classification is reasonable and not arbitrary when there is concurrence of four elements, namely: (1) it must rest on substantial distinction; (2) it must be germane to the purpose of the law; (3) must not be limited to existing conditions only, and (4) must apply equaly to all members of the same class, 35 all of which are present in this case. The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality and reasonables of the questioned provisions. The classification between those pending cases involving the concerned public officials whose trial has not yet commence and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences. 36 In the first instance, evidence against them were not yet presented,

whereas in the latter the parties had already submitted their respective proofs, examined witnesses and presented documents. Since it is within the power of Congress to define the jurisdiction of courts subject to the constitutional limitations, 37 it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to privide for a remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category from those similarly situated as them. Precisely, paragraph a of Section 4 provides that it shall apply to "all case involving" certain public officials and, under the transitory provision in Section 7, to "all cases pending in any court." Contrary to petitioner and intervenors' argument, the law is not particularly directed only to the Kuratong Baleleng cases. The transitory provision does not only cover cases which are in the Sandiganbayan but also in "any court." It just happened that Kuratong Baleleng cases are one of those affected by the law. Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (R.A. 8249). In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived as bad faith on the part of a Senator and two Justices of the Sandiganbaya 38 for their participation in the passage of the said provisions. In particular, it is stressed that the Senator had expressed strong sentiments against those officials involved in the Kuratong Baleleng cases during the hearings conducted on the matter by the committee headed by the Senator. Petitioner further contends that the legislature is biased against him as he claims to have been selected from among the 67 million other Filipinos as the object of the deletion of the word "principal" in paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A. 8249. 39 R.A 8249, while still a bill, was acted, deliberated, considered by 23 other Senators and by about 250 Representatives, and was separately approved by the Senate and House of Representatives and, finally, by the President of the Philippines. On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the committe hearings, the same would not constitute sufficient justification to nullify an otherwise valid law. Their presence and participation in the legislative hearings was deemed necessary by Congress since the matter before the committee involves the graft court of which one is the head of the Sandiganbayan and the other a member thereof. The Congress, in its plenary legislative powers, is particularly empowered by the Constitution to invite persons to appear before it whenever it decides to conduct inquiries in aid of legislation. 40 Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to the Kuratong Baleleng cases constitutes an ex post facto law 41 for they are deprived of their right to procedural due process as they can no longer avail of the twotiered appeal which they had allegedly acquired under R.A. 7975. Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v. Bull, 42 an ex post facto law is one (a) which makes an act done criminal before the passing of the law and which was innocent when committed, and punishes such action; or (b) which aggravates a crime or makes it greater than when it was committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed. (d) which alters the legal rules of evidence and recieves less or different testimony that the law required at the time of the commission of the offense on order to convict the defendant. 43 (e) Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage. 44 This Court added two more to the list, namely:

(f) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; (g) deprives a person accussed of crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of a amnesty. 45 Ex post facto law, generally, prohibits retrospectivity of penal laws. 46 R.A. 8249 is not penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; 47 or those that define crimes, treat of their nature, and provide dor their punishment. 48 R.A 7975, which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. 49 Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. Petitioner's and entervenors' contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times 50 considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws. 51 R.A. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the prohibition. 52 Moreover, the law did not alter the rules of evidence or the mode of trial. 53 It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage. 54 In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review questions of law. 55 On the removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if he presumption of innocence has been convincing overcome. 56 Another point. The challenged law does not violate the one-title-one-subject provision of the Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The expantion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have to be expressly stated in the title of the law because such is the necessary consequence of the amendments. The requirement that every bill must only have one subject expressed in the title 57 is satisfied if the title is comprehensive enough, as in this case, to include subjects related to the general purpose which the statute seeks to achieve. 58 Such rule is liberally interpreted and should be given a practical rather than a technical construction. There is here sufficient compliance with such requirement, since the title of R.A. 8249 expresses the general subject (involving the jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended) and all the provisions of the law are germane to that general subject. 59 The Congress, in employing the word "define" in the title of the law, acted within its power since Section 2, Article VIII of the Constitution itself empowers the legislative body to "define, prescribe, and apportion the jurisdiction of various courts. 60 There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we shall now determine whether under the allegations in the Informations, it is the Sandiganbayan or Regional Trial Court which has jurisdictions over the multiple murder case against herein petitioner and entervenors. The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or informations, 61 and not by the

evidence presented by the parties at the trial. 62 As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it. 63 This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by the public officers and employees, including those in goverment-owned or controlled corporations, "in relation to their office as may be determined by law." This constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section 4 thereof that the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. The remaining question to be resolved then is whether the offense of multiple murder was committed in relation to the office of the accussed PNP officers. In People vs. Montejo, 64 we held that an offense is said to have been committed in relation to the office if it (the offense) is "intimately connected" with the office of the offender and perpetrated while he was in the performance of his official functions. 65 This intimate relation between the offense charged and the discharge of official duties "must be alleged in the informations." 66 As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised Rules of Court mandates: Sec. 9 Couse of accusation The acts or omissions complied of as constituting the offense must be stated in ordinary and concise language without repetition not necessarily in the terms of the statute defining the offense, but in such from as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. (Emphasis supplied) As early as 1954 we pronounced that "the factor that characterizes the charge is actual recital of the facts." 67 The real nature of the criminal charge is determined from the caption or preamble of the informations nor from the specification of provision of law alleged to have been violated, they being conclusions of law, but by actual recital of facts in the complaint or information. 68 the not the the

The noble object or written accusations cannot be overemphasized. This was explained in U.S. v. Karelsen: 69 The object of this written accusations was First; To furnish the accused with such a descretion of the charge against him as will enable him to make his defense and second to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause and third, to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be had. In order that the requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent these must be set forth in the complaint with reasonable particularly of time, place, names (plaintiff and defendant) and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged. (Emphasis supplied) It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he is presumed to have no indefendent knowledge of the facts that constitute the offense." 70 Applying these legal principles and doctrines to the present case, we find the amended informations for murder against herein petitioner and intervenors wanting of specific factual averments to show the intimate relation/connection between the offense charged and the discharge of official function of the offenders. In the present case, one of the eleven (11) amended informations 71 for murder reads:

AMENDED INFORMATIONS The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby accuses CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, SPO2 NORBERTO LASAGA, PO2 LEONARDO GLORIA, and PO2 ALEJANDRO G. LIWANAG of the crime of Murder as defined and penalize under Article 248 of the Revised Penal Code committed as follows That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City Philippines and within the jurisdiction of his Honorable Court, the accused CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1 OSMUNDO B. CARINO, all taking advantage of their public and official positions as officers and members of the Philippine National Police and committing the acts herein alleged in relation to their public office, conspiring with intent to kill and using firearms with treachery evident premeditation and taking advantage of their superior strenghts did then and there willfully unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds which caused his instantaneous death to the damage and prejudice of the heirs of the said victim. That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2 ALEJANDRO G. LIWANAG committing the acts in relation to office as officers and members of the Philippine National Police are charged herein as accessories after-the-fact for concealing the crime herein above alleged by among others falsely representing that there where no arrest made during the read conducted by the accused herein at Superville Subdivision, Paranaque, Metro Manila on or about the early dawn of May 18, 1995. CONTRARY LAW. While the above-quoted information states that the above-named principal accused committed the crime of murder "in relation to thier public office, there is, however, no specific allegation of facts that the shooting of the victim by the said principal accused was intimately related to the discharge of their official duties as police officers. Likewise, the amended information does not indicate that the said accused arrested and investigated the victim and then killed the latter while in their custody. Even the allegations concerning the criminal participation of herein petitioner and intevenors as among the accessories after-the-facts, the amended information is vague on this. It is alleged therein that the said accessories concelead "the crime herein-above alleged by, among others, falsely representing that there were no arrests made during the raid conducted by the accused herein at Superville Subdivision, Paranaque Metro Manila, on or about the early dawn of May 18, 1995." The sudden mention of the "arrests made during the raid conducted by the accused" surprises the reader. There is no indication in the amended information that the victim was one of those arrested by the accused during the "raid." Worse, the raid and arrests were allegedly conducted "at Superville Subdivision, Paranaque, Metro Manila" but, as alleged in the immediately preceding paragraph of the amended information, the shooting of the victim by the principal accused occurred in Mariano Marcos Avenue, Quezon City." How the raid, arrests and shooting happened in the two places far away from each other is puzzling. Again, while there is the allegation in the amended information that the said accessories

committed the offense "in relation to office as officers and members of the (PNP)," we, however, do not see the intimate connection between the offense charged and the accused's official functions, which, as earlier discussed, is an essential element in determining the jurisdiction of the Sandiganbayan. The stringent requirement that the charge be set forth with such particularly as will reasonably indicate the exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the offense was committed by the accused public officer in relation to his office is not sufficient. That phrase is merely a conclusion between of law, not a factual avernment that would show the close intimacy between the offense charged and the discharge of the accused's official duties. In People vs. Magallanes, 72 where the jurisdiction between the Regional Trial Court and the Sandiganbayan was at issue, we ruled: It is an elementary rule that jurisdiction is determined by the allegations in the complaint or information and not by the result of evidence after trial. In (People vs) Montejo (108 Phil 613 (1960), where the amended information alleged Leroy S. Brown City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandoes consisting of regular policeman and . . . special policemen appointed and provided by him with pistols and higher power guns and then established a camp . . . at Tipo-tipo which is under his command . . . supervision and control where his co-defendants were stationed entertained criminal complaints and conducted the corresponding investigations as well as assumed the authority to arrest and detain person without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders his co-defendants arrested and maltreated Awalin Tebag who denied in consequence thereof. we held that the offense charged was committed in relation to the office of the accused because it was perpetreated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office, besides, the accused had no personal motive in committing the crime thus, there was an intimate connection between the offense and the office of the accused. Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely allege that the accused for the purpose of extracting or extortin the sum of P353,000.00 abducted, kidnapped and detained the two victims, and failing in their common purpose they shot; and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial. In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to public office "does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in the information that would indicate the close intimacy between the discharge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office. Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court, 73 not the Sandiganbayan. WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained.

The Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over the said cases.1wphi1.nt SO ORDERED. Davide, Jr., CJ., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur. EN BANC

G.R. No. 91649 May 14, 1991 ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO SANCHEZ, petitioners, vs.PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent. H.B. Basco & Associates for petitioners. Valmonte Law Offices collaborating counsel for petitioners. Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J.:p A TV ad proudly announces: "The new PAGCOR responding through responsible gaming." But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the Philippine Amusement and Gaming Corporation (PAGCOR) Charter PD 1869, because it is allegedly contrary to morals, public policy and order, and because A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It waived the Manila City government's right to impose taxes and license fees, which is recognized by law; B. For the same reason stated in the immediately preceding paragraph, the law has intruded into the local government's right to impose local taxes and license fees. This, in contravention of the constitutionally enshrined principle of local autonomy; C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR conducted gambling, while most other forms of gambling are outlawed, together with prostitution, drug trafficking and other vices; D. It violates the avowed trend of the Cory government away from monopolistic and crony economy, and toward free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo) In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared national policy of the "new restored democracy" and the people's will as expressed in the 1987 Constitution. The decree is said to have a "gambling objective" and therefore is contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present Constitution (p. 3, Second Amended Petition; p. 21, Rollo).

The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being also the Chairman of the Committee on Laws of the City Council of Manila), can question and seek the annulment of PD 1869 on the alleged grounds mentioned above. The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A dated January 1, 1977 and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to establish, operate and maintain gambling casinos on land or water within the territorial jurisdiction of the Philippines." Its operation was originally conducted in the well known floating casino "Philippine Tourist." The operation was considered a success for it proved to be a potential source of revenue to fund infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to fully attain this objective. Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to regulate and centralize all games of chance authorized by existing franchise or permitted by law, under the following declared policy Sec. 1. Declaration of Policy. It is hereby declared to be the policy of the State to centralize and integrate all games of chance not heretofore authorized by existing franchises or permitted by law in order to attain the following objectives: (a) To centralize and integrate the right and authority to operate and conduct games of chance into one corporate entity to be controlled, administered and supervised by the Government. (b) To establish and operate clubs and casinos, for amusement and recreation, including sports gaming pools, (basketball, football, lotteries, etc.) and such other forms of amusement and recreation including games of chance, which may be allowed by law within the territorial jurisdiction of the Philippines and which will: (1) generate sources of additional revenue to fund infrastructure and socio-civic projects, such as flood control programs, beautification, sewerage and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs, Population Control and such other essential public services; (2) create recreation and integrated facilities which will expand and improve the country's existing tourist attractions; and (3) minimize, if not totally eradicate, all the evils, malpractices and corruptions that are normally prevalent on the conduct and operation of gambling clubs and casinos without direct government involvement. (Section 1, P.D. 1869) To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its Charter's repealing clause, all laws, decrees, executive orders, rules and regulations, inconsistent therewith, are accordingly repealed, amended or modified. It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly remitted to the National Government a total of P2.5 Billion in form of franchise tax, government's income share, the President's Social Fund and Host Cities' share. In addition, PAGCOR sponsored other socio-cultural and charitable projects on its own or in cooperation with various governmental agencies, and other private associations and organizations. In its 3 1/2 years of operation under the present administration, PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989, PAGCOR was employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the livelihood of Four Thousand Four Hundred NinetyFour (4,494) families. But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and void" for being "contrary to morals, public policy and public order," monopolistic and tends toward "crony economy", and is violative of the equal protection clause and local autonomy as well as for running counter to the state policies enunciated in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution.

This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate consideration by the Court, involving as it does the exercise of what has been described as "the highest and most delicate function which belongs to the judicial department of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323). As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the government We need not be reminded of the time-honored principle, deeply ingrained in our jurisprudence, that a statute is presumed to be valid. Every presumption must be indulged in favor of its constitutionality. This is not to say that We approach Our task with diffidence or timidity. Where it is clear that the legislature or the executive for that matter, has over-stepped the limits of its authority under the constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on the offending statute (Lozano v. Martinez, supra). In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar underscored the . . . thoroughly established principle which must be followed in all cases where questions of constitutionality as obtain in the instant cases are involved. All presumptions are indulged in favor of constitutionality; one who attacks a statute alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be upheld and the challenger must negate all possible basis; that the courts are not concerned with the wisdom, justice, policy or expediency of a statute and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited in Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521, 540) Of course, there is first, the procedural issue. The respondents are questioning the legal personality of petitioners to file the instant petition. Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA 371) With particular regard to the requirement of proper party as applied in the cases before us, We hold that the same is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an immediate injury as a result of the acts or measures complained of. And even if, strictly speaking they are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised. In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must technicalities of procedure." We have since then applied the exception in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343). Having disposed of the procedural issue, We will now discuss the substantive issues raised.

Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling does not mean that the Government cannot regulate it in the exercise of its police power. The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386). Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuming the greatest benefits. (Edu v. Ericta, supra) It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has been credited, refers to it succinctly as the plenary power of the state "to govern its citizens". (Tribe, American Constitutional Law, 323, 1978). The police power of the State is a power co-extensive with self-protection and is most aptly termed the "law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential, insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic force that enables the state to meet the agencies of the winds of change. What was the reason behind the enactment of P.D. 1869? P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an appropriate institution all games of chance authorized by existing franchise or permitted by law" (1st whereas clause, PD 1869). As was subsequently proved, regulating and centralizing gambling operations in one corporate entity the PAGCOR, was beneficial not just to the Government but to society in general. It is a reliable source of much needed revenue for the cash strapped Government. It provided funds for social impact projects and subjected gambling to "close scrutiny, regulation, supervision and control of the Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct intervention of the Government, the evil practices and corruptions that go with gambling will be minimized if not totally eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896. Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They must be referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying any "tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or Local." (2) Income and other taxes. a) Franchise Holder: No tax of any kind or form, income or otherwise as well as fees, charges or levies of whatever nature, whether National or Local, shall be assessed and collected under this franchise from the Corporation; nor shall any form or tax or charge attach in any way to the earnings of the Corporation, except a franchise tax of five (5%) percent of the gross revenues or earnings derived by the Corporation from its operations under this franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description, levied, established or collected by any municipal, provincial or national government authority (Section 13 [2]). Their contention stated hereinabove is without merit for the following reasons:

(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly show an intent to confer that power or the municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield to a legislative act which is superior having been passed upon by the state itself which has the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p. 445). (b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal corporations are mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and abolish municipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemptions or even take back the power. (c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the power of local governments to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771 and was vested exclusively on the National Government, thus: Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other local governments to issue license, permit or other form of franchise to operate, maintain and establish horse and dog race tracks, jai-alai and other forms of gambling is hereby revoked. Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks, jai-alai and other forms of gambling shall be issued by the national government upon proper application and verification of the qualification of the applicant . .. Therefore, only the National Government has the power to issue "licenses or permits" for the operation of gambling. Necessarily, the power to demand or collect license fees which is a consequence of the issuance of "licenses or permits" is no longer vested in the City of Manila. (d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned by the National Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers thus: Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of the affiliated entities, and shall exercise all the powers, authority and the responsibilities vested in the Securities and Exchange Commission over such affiliating entities mentioned under the preceding section, including, but not limited to amendments of Articles of Incorporation and By-Laws, changes in corporate term, structure, capitalization and other matters concerning the operation of the affiliated entities, the provisions of the Corporation Code of the Philippines to the contrary notwithstanding, except only with respect to original incorporation. PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental, which places it in the category of an agency or instrumentality of the Government. Being an instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes. Otherwise, its operation might be burdened, impeded or subjected to control by a mere Local government. The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control the operation of constitutional laws enacted by Congress to carry into execution the powers vested in the federal government. (MC Culloch v. Marland, 4 Wheat

316, 4 L Ed. 579) This doctrine emanates from the "supremacy" of the National Government over local governments. Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of power on the part of the States to touch, in that way (taxation) at least, the instrumentalities of the United States (Johnson v. Maryland, 254 US 51) and it can be agreed that no state or political subdivision can regulate a federal instrumentality in such a way as to prevent it from consummating its federal responsibilities, or even to seriously burden it in the accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied) Otherwise, mere creatures of the State can defeat National policies thru extermination of what local authorities may perceive to be undesirable activities or enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US 42). The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v. Maryland, supra) cannot be allowed to defeat an instrumentality or creation of the very entity which has the inherent power to wield it. (e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D. 1869. This is a pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides: Sec. 5. Each local government unit shall have the power to create its own source of revenue and to levy taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government. (emphasis supplied) The power of local government to "impose taxes and fees" is always subject to "limitations" which Congress may provide by law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as an exception to the exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative but rather is consistent with the principle of local autonomy. Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III Records of the 1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign within the state or an "imperium in imperio." Local Government has been described as a political subdivision of a nation or state which is constituted by law and has substantial control of local affairs. In a unitary system of government, such as the government under the Philippine Constitution, local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government. (emphasis supplied) As to what state powers should be "decentralized" and what may be delegated to local government units remains a matter of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539). What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern and hence, it is the sole prerogative of the State to retain it or delegate it to local governments. As gambling is usually an offense against the State, legislative grant or express charter

power is generally necessary to empower the local corporation to deal with the subject. . . . In the absence of express grant of power to enact, ordinance provisions on this subject which are inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied) Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because "it legalized PAGCOR conducted gambling, while most gambling are outlawed together with prostitution, drug trafficking and other vices" (p. 82, Rollo). We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-accepted meaning of the clause "equal protection of the laws." The clause does not preclude classification of individuals who may be accorded different treatment under the law as long as the classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not have to operate in equal force on all persons or things to be conformable to Article III, Section 1 of the Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989). The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not require situations which are different in fact or opinion to be treated in law as though they were the same (Gomez v. Palomar, 25 SCRA 827). Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not clearly explained in the petition. The mere fact that some gambling activities like cockfighting (P.D 449) horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) are legalized under certain conditions, while others are prohibited, does not render the applicable laws, P.D. 1869 for one, unconstitutional. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827) The equal protection clause of the 14th Amendment does not mean that all occupations called by the same name must be treated the same way; the state may do what it can to prevent which is deemed as evil and stop short of those cases in which harm to the few concerned is not less than the harm to the public that would insure if the rule laid down were made mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651). Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away from monopolies and crony economy and toward free enterprise and privatization" suffice it to state that this is not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the government's policies then it is for the Executive Department to recommend to Congress its repeal or amendment. The judiciary does not settle policy issues. The Court can only declare what the law is and not what the law should be. Under our system of government, policy issues are within the domain of the political branches of government and of the people themselves as the repository of all state power. (Valmonte v. Belmonte, Jr., 170 SCRA 256). On the issue of "monopoly," however, the Constitution provides that: Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed. (Art. XII, National Economy and Patrimony) It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the Constitution. The state must still decide whether public interest demands that monopolies be regulated or prohibited. Again, this is a matter of policy for the Legislature to decide.

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements of principles and, policies. As such, they are basically not self-executing, meaning a law should be passed by Congress to clearly define and effectuate such principles. In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for enforcement through the courts. They were rather directives addressed to the executive and the legislature. If the executive and the legislature failed to heed the directives of the articles the available remedy was not judicial or political. The electorate could express their displeasure with the failure of the executive and the legislature through the language of the ballot. (Bernas, Vol. II, p. 2) Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD 1869 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful and equivocal one. In other words, the grounds for nullity must be clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration. Otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of P.D. 1869, the Court finds that petitioners have failed to overcome the presumption. The dismissal of this petition is therefore, inevitable. But as to whether P.D. 1869 remains a wise legislation considering the issues of "morality, monopoly, trend to free enterprise, privatization as well as the state principles on social justice, role of youth and educational values" being raised, is up for Congress to determine. As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521 Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the presumption of validity and constitutionality which petitioners Valmonte and the KMU have not overturned. Petitioners have not undertaken to identify the provisions in the Constitution which they claim to have been violated by that statute. This Court, however, is not compelled to speculate and to imagine how the assailed legislation may possibly offend some provision of the Constitution. The Court notes, further, in this respect that petitioners have in the main put in question the wisdom, justice and expediency of the establishment of the OPSF, issues which are not properly addressed to this Court and which this Court may not constitutionally pass upon. Those issues should be addressed rather to the political departments of government: the President and the Congress. Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the gambling resorted to is excessive. This excessiveness necessarily depends not only on the financial resources of the gambler and his family but also on his mental, social, and spiritual outlook on life. However, the mere fact that some persons may have lost their material fortunes, mental control, physical health, or even their lives does not necessarily mean that the same are directly attributable to gambling. Gambling may have been the antecedent, but certainly not necessarily the cause. For the same consequences could have been preceded by an overdose of food, drink, exercise, work, and even sex. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED. Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento, GrioAquino, Medialdea, Regalado and Davide, Jr., JJ., concur. EN BANC

G.R. No. 124360 November 5, 1997 FRANCISCO S. TATAD, petitioner, vs.THE SECRETARY OF THE DEPARTMENT OF ENERGY AND THE SECRETARY OF THE DEPARTMENT OF FINANCE, respondents. G.R. No. 127867 November 5, 1997 EDCEL C. LAGMAN, JOKER P. ARROYO, ENRIQUE GARCIA, WIGBERTO TANADA, FLAG HUMAN RIGHTS FOUNDATION, INC., FREEDOM FROM DEBT COALITION (FDC), SANLAKAS, petitioners, vs.HON. RUBEN TORRES in his capacity as the Executive Secretary, HON. FRANCISCO VIRAY, in his capacity as the Secretary of Energy, CALTEX Philippines, Inc., PETRON Corporation and PILIPINAS SHELL Corporation, respondents.

PUNO, J.: The petitions at bar challenge the constitutionality of Republic Act No. 8180 entitled "An Act Deregulating the Downstream Oil Industry and For Other Purposes". 1 R.A. No. 8180 ends twenty six (26) years of government regulation of the downstream oil industry. Few cases carry a surpassing importance on the life of every Filipino as these petitions for the upswing and downswing of our economy materially depend on the oscillation of oil. First, the facts without the fat. Prior to 1971, there was no government agency regulating the oil industry other than those dealing with ordinary commodities. Oil companies were free to enter and exit the market without any government interference. There were four (4) refining companies (Shell, Caltex, Bataan Refining Company and Filoil Refining) and six (6) petroleum marketing companies (Esso, Filoil, Caltex, Getty, Mobil and Shell), then operating in the country. 2 In 1971, the country was driven to its knees by a crippling oil crisis. The government, realizing that petroleum and its products are vital to national security and that their continued supply at reasonable prices is essential to the general welfare, enacted the Oil Industry Commission Act. 3 It created the Oil Industry Commission (OIC) to regulate the business of importing, exporting, re-exporting, shipping, transporting, processing, refining, storing, distributing, marketing and selling crude oil, gasoline, kerosene, gas and other refined petroleum products. The OIC was vested with the power to fix the market prices of petroleum products, to regulate the capacities of refineries, to license new refineries and to regulate the operations and trade practices of the industry. 4 In addition to the creation of the OIC, the government saw the imperious need for a more active role of Filipinos in the oil industry. Until the early seventies, the downstream oil industry was controlled by multinational companies. All the oil refineries and marketing companies were owned by foreigners whose economic interests did not always coincide with the interest of the Filipino. Crude oil was transported to the country by foreigncontrolled tankers. Crude processing was done locally by foreign-owned refineries and petroleum products were marketed through foreign-owned retail outlets. On November 9, 1973, President Ferdinand E. Marcos boldly created the Philippine National Oil Corporation (PNOC) to break the control by foreigners of our oil industry. 5 PNOC engaged in the business of refining, marketing, shipping, transporting, and storing petroleum. It acquired ownership of ESSO Philippines and Filoil to serve as its marketing arm. It bought the controlling shares of Bataan Refining Corporation, the largest refinery in the country. 6 PNOC later put up its own marketing subsidiary Petrophil. PNOC operated under the business name PETRON Corporation. For the first time, there was a Filipino presence in the Philippine oil market. In 1984, President Marcos through Section 8 of Presidential Decree No. 1956, created the Oil Price Stabilization Fund (OPSF) to cushion the effects of frequent changes in the price of oil caused by exchange rate adjustments or increase in the world market prices of crude oil and imported petroleum products. The fund is used (1) to reimburse the oil

companies for cost increases in crude oil and imported petroleum products resulting from exchange rate adjustment and/or increase in world market prices of crude oil, and (2) to reimburse oil companies for cost underrecovery incurred as a result of the reduction of domestic prices of petroleum products. Under the law, the OPSF may be sourced from: 1. any increase in the tax collection from ad valorem tax or customs duty imposed on petroleum products subject to tax under P.D. No. 1956 arising from exchange rate adjustment, 2. 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, 3. 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 of persons or companies engaged in the business of importing, manufacturing and/or marketing petroleum products, or 4. any resulting peso costs 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 rate as fixed by the Board of Energy. 7 By 1985, only three (3) oil companies were operating in the country Caltex, Shell and the government-owned PNOC. In May, 1987, President Corazon C. Aquino signed Executive Order No. 172 creating the Energy Regulatory Board to regulate the business of importing, exporting, re-exporting, shipping, transporting, processing, refining, marketing and distributing energy resources "when warranted and only when public necessity requires." The Board had the following powers and functions: 1. Fix and regulate the prices of petroleum products; 2. Fix and regulate the rate schedule or prices of piped gas to be charged by duly franchised gas companies which distribute gas by means of underground pipe system; 3. Fix and regulate the rates of pipeline concessionaries under the provisions of R.A. No. 387, as amended . . . ; 4. Regulate the capacities of new refineries or additional capacities of existing refineries and license refineries that may be organized after the issuance of (E.O. No. 172) under such terms and conditions as are consistent with the national interest; and 5. 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 . . . by persons or entities engaged in the petroleum industry of such amounts as may be determined by the Board, which may enable the importer to recover its cost of importation. 8 On December 9, 1992, Congress enacted R.A. No. 7638 which created the Department of Energy to prepare, integrate, coordinate, supervise and control all plans, programs, projects, and activities of the government in relation to energy exploration, development, utilization, distribution and conservation. 9 The thrust of the Philippine energy program under the law was toward privatization of government agencies related to energy, deregulation of the power and energy industry and reduction of dependency on oil-fired plants. 10 The law also aimed to encourage free and active participation and investment by the private sector in all energy activities. Section 5(e) of the law states that "at the end of four (4) years from the effectivity of this Act, the Department shall,

upon approval of the President, institute the programs and timetable of deregulation of appropriate energy projects and activities of the energy industry." Pursuant to the policies enunciated in R.A. No. 7638, the government approved the privatization of Petron Corporation in 1993. On December 16, 1993, PNOC sold 40% of its equity in Petron Corporation to the Aramco Overseas Company. In March 1996, Congress took the audacious step of deregulating the downstream oil industry. It enacted R.A. No. 8180, entitled the "Downstream Oil Industry Deregulation Act of 1996." Under the deregulated environment, "any person or entity may import or purchase any quantity of crude oil and petroleum products from a foreign or domestic source, lease or own and operate refineries and other downstream oil facilities and market such crude oil or use the same for his own requirement," subject only to monitoring by the Department of Energy. 11 The deregulation process has two phases: the transition phase and the full deregulation phase. During the transition phase, controls of the non-pricing aspects of the oil industry were to be lifted. The following were to be accomplished: (1) liberalization of oil importation, exportation, manufacturing, marketing and distribution, (2) implementation of an automatic pricing mechanism, (3) implementation of an automatic formula to set margins of dealers and rates of haulers, water transport operators and pipeline concessionaires, and (4) restructuring of oil taxes. Upon full deregulation, controls on the price of oil and the foreign exchange cover were to be lifted and the OPSF was to be abolished. The first phase of deregulation commenced on August 12, 1996. On February 8, 1997, the President implemented the full deregulation of the Downstream Oil Industry through E.O. No. 372. The petitions at bar assail the constitutionality of various provisions of R.A No. 8180 and E.O. No. 372. In G.R. No. 124360, petitioner Francisco S. Tatad seeks the annulment of section 5(b) of R.A. No. 8180. Section 5(b) provides: b) Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff duty shall be imposed and collected on imported crude oil at the rate of three percent (3%) and imported refined petroleum products at the rate of seven percent (7%), except fuel oil and LPG, the rate for which shall be the same as that for imported crude oil: Provided, That beginning on January 1, 2004 the tariff rate on imported crude oil and refined petroleum products shall be the same: Provided, further, That this provision may be amended only by an Act of Congress. The petition is anchored on three arguments: First, that the imposition of different tariff rates on imported crude oil and imported refined petroleum products violates the equal protection clause. Petitioner contends that the 3%-7% tariff differential unduly favors the three existing oil refineries and discriminates against prospective investors in the downstream oil industry who do not have their own refineries and will have to source refined petroleum products from abroad. Second, that the imposition of different tariff rates does not deregulate the downstream oil industry but instead controls the oil industry, contrary to the avowed policy of the law. Petitioner avers that the tariff differential between imported crude oil and imported refined petroleum products bars the entry of other players in the oil industry because it effectively protects the interest of oil companies with existing refineries. Thus, it runs counter to the objective of the law "to foster a truly competitive market." Third, that the inclusion of the tariff provision in section 5(b) of R.A. No. 8180 violates

Section 26(1) Article VI of the Constitution requiring every law to have only one subject which shall be expressed in its title. Petitioner contends that the imposition of tariff rates in section 5(b) of R.A. No. 8180 is foreign to the subject of the law which is the deregulation of the downstream oil industry. In G.R. No. 127867, petitioners Edcel C. Lagman, Joker P. Arroyo, Enrique Garcia, Wigberto Tanada, Flag Human Rights Foundation, Inc., Freedom from Debt Coalition (FDC) and Sanlakas contest the constitutionality of section 15 of R.A. No. 8180 and E.O. No. 392. Section 15 provides: Sec. 15. Implementation of Full Deregulation. Pursuant to Section 5(e) of Republic Act No. 7638, the DOE shall, upon approval of the President, implement the full deregulation of the downstream oil industry not later than March 1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude oil and petroleum products in the world market are declining and when the exchange rate of the peso in relation to the US dollar is stable. Upon the implementation of the full deregulation as provided herein, the transition phase is deemed terminated and the following laws are deemed repealed: xxx xxx xxx E.O. No. 372 states in full, viz.: WHEREAS, Republic Act No. 7638, otherwise known as the "Department of Energy Act of 1992," provides that, at the end of four years from its effectivity last December 1992, "the Department (of Energy) shall, upon approval of the President, institute the programs and time table of deregulation of appropriate energy projects and activities of the energy sector;" WHEREAS, Section 15 of Republic Act No. 8180, otherwise known as the "Downstream Oil Industry Deregulation Act of 1996," provides that "the DOE shall, upon approval of the President, implement full deregulation of the downstream oil industry not later than March, 1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude oil and petroleum products in the world market are declining and when the exchange rate of the peso in relation to the US dollar is stable;" WHEREAS, pursuant to the recommendation of the Department of Energy, there is an imperative need to implement the full deregulation of the downstream oil industry because of the following recent developments: (i) depletion of the buffer fund on or about 7 February 1997 pursuant to the Energy Regulatory Board's Order dated 16 January 1997; (ii) the prices of crude oil had been stable at $21-$23 per barrel since October 1996 while prices of petroleum products in the world market had been stable since mid-December of last year. Moreover, crude oil prices are beginning to soften for the last few days while prices of some petroleum products had already declined; and (iii) the exchange rate of the peso in relation to the US dollar has been stable for the past twelve (12) months, averaging at around P26.20 to one US dollar; WHEREAS, Executive Order No. 377 dated 31 October 1996 provides for an institutional framework for the administration of the deregulated industry by defining the functions and responsibilities of various government agencies; WHEREAS, pursuant to Republic Act No. 8180, the deregulation of the industry will foster a truly competitive market which can better achieve the social policy objectives of fair prices and adequate, continuous supply of environmentally-clean and high quality petroleum products; NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by the powers vested in me by law, do hereby declare the full deregulation of the downstream oil industry. In assailing section 15 of R.A. No. 8180 and E.O. No. 392, petitioners offer the following submissions:

First, section 15 of R.A. No. 8180 constitutes an undue delegation of legislative power to the President and the Secretary of Energy because it does not provide a determinate or determinable standard to guide the Executive Branch in determining when to implement the full deregulation of the downstream oil industry. Petitioners contend that the law does not define when it is practicable for the Secretary of Energy to recommend to the President the full deregulation of the downstream oil industry or when the President may consider it practicable to declare full deregulation. Also, the law does not provide any specific standard to determine when the prices of crude oil in the world market are considered to be declining nor when the exchange rate of the peso to the US dollar is considered stable. Second, petitioners aver that E.O. No. 392 implementing the full deregulation of the downstream oil industry is arbitrary and unreasonable because it was enacted due to the alleged depletion of the OPSF fund a condition not found in R.A. No. 8180. Third, section 15 of R.A. No. 8180 and E.O. No. 392 allow the formation of a de facto cartel among the three existing oil companies Petron, Caltex and Shell in violation of the constitutional prohibition against monopolies, combinations in restraint of trade and unfair competition. Respondents, on the other hand, fervently defend the constitutionality of R.A. No. 8180 and E.O. No. 392. In addition, respondents contend that the issues raised by the petitions are not justiciable as they pertain to the wisdom of the law. Respondents further aver that petitioners have no locus standi as they did not sustain nor will they sustain direct injury as a result of the implementation of R.A. No. 8180. The petitions were heard by the Court on September 30, 1997. On October 7, 1997, the Court ordered the private respondents oil companies "to maintain the status quo and to cease and desist from increasing the prices of gasoline and other petroleum fuel products for a period of thirty (30) days . . . subject to further orders as conditions may warrant." We shall now resolve the petitions on the merit. The petitions raise procedural and substantive issues bearing on the constitutionality of R.A. No. 8180 and E.O. No. 392. The procedural issues are: (1) whether or not the petitions raise a justiciable controversy, and (2) whether or not the petitioners have the standing to assail the validity of the subject law and executive order. The substantive issues are: (1) whether or not section 5 (b) violates the one title one subject requirement of the Constitution; (2) whether or not the same section violates the equal protection clause of the Constitution; (3) whether or not section 15 violates the constitutional prohibition on undue delegation of power; (4) whether or not E.O. No. 392 is arbitrary and unreasonable; and (5) whether or not R.A. No. 8180 violates the constitutional prohibition against monopolies, combinations in restraint of trade and unfair competition. We shall first tackle the procedural issues. Respondents claim that the avalanche of arguments of the petitioners assail the wisdom of R.A. No. 8180. They aver that deregulation of the downstream oil industry is a policy decision made by Congress and it cannot be reviewed, much less be reversed by this Court. In constitutional parlance, respondents contend that the petitions failed to raise a justiciable controversy. Respondents' joint stance is unnoteworthy. Judicial power includes not only the duty of the courts to settle actual controversies involving rights which are legally demandable and enforceable, but also the duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. 12 The courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. Where a statute violates the Constitution, it is not only the right but the duty of the judiciary to declare such act as unconstitutional and void. 13 We held in the recent case of Tanada v. Angara: 14 xxx xxx xxx

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. The question thus posed is judicial rather than political. The duty to adjudicate remains to assure that the supremacy of the Constitution is upheld. Once a controversy as to the application or interpretation of a constitutional provision is raised before this Court, it becomes a legal issue which the Court is bound by constitutional mandate to decide. Even a sideglance at the petitions will reveal that petitioners have raised constitutional issues which deserve the resolution of this Court in view of their seriousness and their value as precedents. Our statement of facts and definition of issues clearly show that petitioners are assailing R.A. No. 8180 because its provisions infringe the Constitution and not because the law lacks wisdom. The principle of separation of power mandates that challenges on the constitutionality of a law should be resolved in our courts of justice while doubts on the wisdom of a law should be debated in the halls of Congress. Every now and then, a law may be denounced in court both as bereft of wisdom and constitutionally infirmed. Such denunciation will not deny this Court of its jurisdiction to resolve the constitutionality of the said law while prudentially refusing to pass on its wisdom. The effort of respondents to question the locus standi of petitioners must also fall on barren ground. In language too lucid to be misunderstood, this Court has brightlined its liberal stance on a petitioner's locus standi where the petitioner is able to craft an issue of transcendental significance to the people. 15 In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 16 we stressed: xxx xxx xxx Objections to taxpayers' suit for lack of sufficient personality, standing or interest are, however, in the main procedural matters. Considering the importance to the public of the cases at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of these petitions. There is not a dot of disagreement between the petitioners and the respondents on the far reaching importance of the validity of RA No. 8180 deregulating our downstream oil industry. Thus, there is no good sense in being hypertechnical on the standing of petitioners for they pose issues which are significant to our people and which deserve our forthright resolution. We shall now track down the substantive issues. In G.R. No. 124360 where petitioner is Senator Tatad, it is contended that section 5(b) of R.A. No. 8180 on tariff differential violates the provision 17 of the Constitution requiring every law to have only one subject which should be expressed in its title. We do not concur with this contention. As a policy, this Court has adopted a liberal construction of the one title one subject rule. We have consistently ruled 18 that the title need not mirror, fully index or catalogue all contents and minute details of a law. A law having a single general subject indicated in the title may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general subject. 19 We hold that section 5(b) providing for tariff differential is germane to the subject of R.A. No. 8180 which is the deregulation of the downstream oil industry. The section is supposed to sway prospective investors to put up refineries in our country and make them rely less on imported petroleum. 20 We shall, however, return to the validity of this provision when we examine its blocking effect on new entrants to the oil market. We shall now slide to the substantive issues in G.R. No. 127867. Petitioners assail section 15 of R.A. No. 8180 which fixes the time frame for the full deregulation of the

downstream oil industry. We restate its pertinent portion for emphasis, viz.: Sec. 15. Implementation of Full Deregulation Pursuant to section 5(e) of Republic Act No. 7638, the DOE shall, upon approval of the President, implement the full deregulation of the downstream oil industry not later than March 1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude oil and petroleum products in the world market are declining and when the exchange rate of the peso in relation to the US dollar is stable . . . Petitioners urge that the phrases "as far as practicable," "decline of crude oil prices in the world market" and "stability of the peso exchange rate to the US dollar" are ambivalent, unclear and inconcrete in meaning. They submit that they do not provide the "determinate or determinable standards" which can guide the President in his decision to fully deregulate the downstream oil industry. In addition, they contend that E.O. No. 392 which advanced the date of full deregulation is void for it illegally considered the depletion of the OPSF fund as a factor. The power of Congress to delegate the execution of laws has long been settled by this Court. As early as 1916 in Compania General de Tabacos de Filipinas vs. The Board of Public Utility Commissioners, 21 this Court thru, Mr. Justice Moreland, held that "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." Over the years, as the legal engineering of men's relationship became more difficult, Congress has to rely more on the practice of delegating the execution of laws to the executive and other administrative agencies. Two tests have been developed to determine whether the delegation of the power to execute laws does not involve the abdication of the power to make law itself. We delineated the metes and bounds of these tests in Eastern Shipping Lines, Inc. VS. POEA, 22 thus: There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz: the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislative such that when it reaches the delegate the only thing he will have to do is to enforce it. Under the sufficient standard test, there must be adequate guidelines or limitations in the law to map out the boundaries of the delegate's authority and prevent the delegation from running riot. Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative. The validity of delegating legislative power is now a quiet area in our constitutional landscape. As sagely observed, delegation of legislative power has become an inevitability in light of the increasing complexity of the task of government. Thus, courts bend as far back as possible to sustain the constitutionality of laws which are assailed as unduly delegating legislative powers. Citing Hirabayashi v. United States 23 as authority, Mr. Justice Isagani A. Cruz states "that even if the law does not expressly pinpoint the standard, the courts will bend over backward to locate the same elsewhere in order to spare the statute, if it can, from constitutional infirmity." 24 Given the groove of the Court's rulings, the attempt of petitioners to strike down section 15 on the ground of undue delegation of legislative power cannot prosper. Section 15 can hurdle both the completeness test and the sufficient standard test. It will be noted that Congress expressly provided in R.A. No. 8180 that full deregulation will start at the end of March 1997, regardless of the occurrence of any event. Full deregulation at the end of March 1997 is mandatory and the Executive has no discretion to postpone it for any purported reason. Thus, the law is complete on the question of the final date of full deregulation. The discretion given to the President is to advance the date of full deregulation before the end of March 1997. Section 15 lays down the standard to guide the judgment of the President he is to time it as far as practicable when the prices of crude oil and petroleum products in the world market are declining and when the exchange rate of the peso in relation to the US dollar is stable.

Petitioners contend that the words "as far as practicable," "declining" and "stable" should have been defined in R.A. No. 8180 as they do not set determinate or determinable standards. The stubborn submission deserves scant consideration. The dictionary meanings of these words are well settled and cannot confuse men of reasonable intelligence. Webster defines "practicable" as meaning possible to practice or perform, "decline" as meaning to take a downward direction, and "stable" as meaning firmly established. 25 The fear of petitioners that these words will result in the exercise of executive discretion that will run riot is thus groundless. To be sure, the Court has sustained the validity of similar, if not more general standards in other cases. 26 It ought to follow that the argument that E.O. No. 392 is null and void as it was based on indeterminate standards set by R.A. 8180 must likewise fail. If that were all to the attack against the validity of E.O. No. 392, the issue need not further detain our discourse. But petitioners further posit the thesis that the Executive misapplied R.A. No. 8180 when it considered the depletion of the OPSF fund as a factor in fully deregulating the downstream oil industry in February 1997. A perusal of section 15 of R.A. No. 8180 will readily reveal that it only enumerated two factors to be considered by the Department of Energy and the Office of the President, viz.: (1) the time when the prices of crude oil and petroleum products in the world market are declining, and (2) the time when the exchange rate of the peso in relation to the US dollar is stable. Section 15 did not mention the depletion of the OPSF fund as a factor to be given weight by the Executive before ordering full deregulation. On the contrary, the debates in Congress will show that some of our legislators wanted to impose as a pre-condition to deregulation a showing that the OPSF fund must not be in deficit. 27 We therefore hold that the Executive department failed to follow faithfully the standards set by R.A. No. 8180 when it considered the extraneous factor of depletion of the OPSF fund. The misappreciation of this extra factor cannot be justified on the ground that the Executive department considered anyway the stability of the prices of crude oil in the world market and the stability of the exchange rate of the peso to the dollar. By considering another factor to hasten full deregulation, the Executive department rewrote the standards set forth in R.A. 8180. The Executive is bereft of any right to alter either by subtraction or addition the standards set in R.A. No. 8180 for it has no power to make laws. To cede to the Executive the power to make law is to invite tyranny, indeed, to transgress the principle of separation of powers. The exercise of delegated power is given a strict scrutiny by courts for the delegate is a mere agent whose action cannot infringe the terms of agency. In the cases at bar, the Executive co-mingled the factor of depletion of the OPSF fund with the factors of decline of the price of crude oil in the world market and the stability of the peso to the US dollar. On the basis of the text of E.O. No. 392, it is impossible to determine the weight given by the Executive department to the depletion of the OPSF fund. It could well be the principal consideration for the early deregulation. It could have been accorded an equal significance. Or its importance could be nil. In light of this uncertainty, we rule that the early deregulation under E.O. No. 392 constitutes a misapplication of R.A. No. 8180. We now come to grips with the contention that some provisions of R.A. No. 8180 violate section 19 of Article XII of the 1987 Constitution. These provisions are: (1) Section 5 (b) which states "Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff duty shall be imposed and collected on imported crude oil at the rate of three percent (3%) and imported refined petroleum products at the rate of seven percent (7%) except fuel oil and LPG, the rate for which shall be the same as that for imported crude oil. Provided, that beginning on January 1, 2004 the tariff rate on imported crude oil and refined petroleum products shall be the same. Provided, further, that this provision may be amended only by an Act of Congress." (2) Section 6 which states "To ensure the security and continuity of petroleum crude and products supply, the DOE shall require the refiners and importers to maintain a minimum inventory equivalent to ten percent (10%) of their respective annual sales volume or forty (40) days of supply, whichever is lower," and (3) Section 9 (b) which states "To ensure fair competition and prevent cartels and monopolies in the downstream oil industry, the following acts shall be prohibited:

xxx xxx xxx (b) Predatory pricing which means selling or offering to sell any product at a price unreasonably below the industry average cost so as to attract customers to the detriment of competitors. On the other hand, section 19 of Article XII of the Constitution allegedly violated by the aforestated provisions of R.A. No. 8180 mandates: "The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed." A monopoly is a privilege or peculiar advantage vested in one or more persons or companies, consisting in the exclusive right or power to carry on a particular business or trade, manufacture a particular article, or control the sale or the whole supply of a particular commodity. It is a form of market structure in which one or only a few firms dominate the total sales of a product or service. 28 On the other hand, a combination in restraint of trade is an agreement or understanding between two or more persons, in the form of a contract, trust, pool, holding company, or other form of association, for the purpose of unduly restricting competition, monopolizing trade and commerce in a certain commodity, controlling its, production, distribution and price, or otherwise interfering with freedom of trade without statutory authority. 29 Combination in restraint of trade refers to the means while monopoly refers to the end. 30 Article 186 of the Revised Penal Code and Article 28 of the New Civil Code breathe life to this constitutional policy. Article 186 of the Revised Penal Code penalizes monopolization and creation of combinations in restraint oftrade, 31 while Article 28 of the New Civil Code makes any person who shall engage in unfair competition liable for damages. 32 Respondents aver that sections 5(b), 6 and 9(b) implement the policies and objectives of R.A. No. 8180. They explain that the 4% tariff differential is designed to encourage new entrants to invest in refineries. They stress that the inventory requirement is meant to guaranty continuous domestic supply of petroleum and to discourage fly-by-night operators. They also submit that the prohibition against predatory pricing is intended to protect prospective entrants. Respondents manifested to the Court that new players have entered the Philippines after deregulation and have now captured 3% 5% of the oil market. The validity of the assailed provisions of R.A. No. 8180 has to be decided in light of the letter and spirit of our Constitution, especially section 19, Article XII. Beyond doubt, the Constitution committed us to the free enterprise system but it is a system impressed with its own distinctness. Thus, while the Constitution embraced free enterprise as an economic creed, it did not prohibit per se the operation of monopolies which can, however, be regulated in the public interest. 33 Thus too, our free enterprise system is not based on a market of pure and unadulterated competition where the State pursues a strict hands-off policy and follows the let-the-devil devour the hindmost rule. Combinations in restraint of trade and unfair competitions are absolutely proscribed and the proscription is directed both against the State as well as the private sector. 34 This distinct free enterprise system is dictated by the need to achieve the goals of our national economy as defined by section 1, Article XII of the Constitution which are: more equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. It also calls for the State to protect Filipino enterprises against unfair competition and trade practices. Section 19, Article XII of our Constitution is anti-trust in history and in spirit. It espouses competition. The desirability of competition is the reason for the prohibition against restraint of trade, the reason for the interdiction of unfair competition, and the reason for regulation of unmitigated monopolies. Competition is thus the underlying principle of section 19, Article XII of our Constitution which cannot be violated by R.A. No. 8180. We subscribe to the observation of Prof. Gellhorn that the objective of anti-trust law is "to assure a competitive economy, based upon the belief that through competition

producers will strive to satisfy consumer wants at the lowest price with the sacrifice of the fewest resources. Competition among producers allows consumers to bid for goods and services, and thus matches their desires with society's opportunity costs." 35 He adds with appropriateness that there is a reliance upon "the operation of the 'market' system (free enterprise) to decide what shall be produced, how resources shall be allocated in the production process, and to whom the various products will be distributed. The market system relies on the consumer to decide what and how much shall be produced, and on competition, among producers to determine who will manufacture it." Again, we underline in scarlet that the fundamental principle espoused by section 19, Article XII of the Constitution is competition for it alone can release the creative forces of the market. But the competition that can unleash these creative forces is competition that is fighting yet is fair. Ideally, this kind of competition requires the presence of not one, not just a few but several players. A market controlled by one player (monopoly) or dominated by a handful of players (oligopoly) is hardly the market where honest-togoodness competition will prevail. Monopolistic or oligopolistic markets deserve our careful scrutiny and laws which barricade the entry points of new players in the market should be viewed with suspicion. Prescinding from these baseline propositions, we shall proceed to examine whether the provisions of R.A. No. 8180 on tariff differential, inventory reserves, and predatory prices imposed substantial barriers to the entry and exit of new players in our downstream oil industry. If they do, they have to be struck down for they will necessarily inhibit the formation of a truly competitive market. Contrariwise, if they are insignificant impediments, they need not be stricken down. In the cases at bar, it cannot be denied that our downstream oil industry is operated and controlled by an oligopoly, a foreign oligopoly at that. Petron, Shell and Caltex stand as the only major league players in the oil market. All other players belong to the lilliputian league. As the dominant players, Petron, Shell and Caltex boast of existing refineries of various capacities. The tariff differential of 4% therefore works to their immense benefit. Yet, this is only one edge of the tariff differential. The other edge cuts and cuts deep in the heart of their competitors. It erects a high barrier to the entry of new players. New players that intend to equalize the market power of Petron, Shell and Caltex by building refineries of their own will have to spend billions of pesos. Those who will not build refineries but compete with them will suffer the huge disadvantage of increasing their product cost by 4%. They will be competing on an uneven field. The argument that the 4% tariff differential is desirable because it will induce prospective players to invest in refineries puts the cart before the horse. The first need is to attract new players and they cannot be attracted by burdening them with heavy disincentives. Without new players belonging to the league of Petron, Shell and Caltex, competition in our downstream oil industry is an idle dream. The provision on inventory widens the balance of advantage of Petron, Shell and Caltex against prospective new players. Petron, Shell and Caltex can easily comply with the inventory requirement of R.A. No. 8180 in view of their existing storage facilities. Prospective competitors again will find compliance with this requirement difficult as it will entail a prohibitive cost. The construction cost of storage facilities and the cost of inventory can thus scare prospective players. Their net effect is to further occlude the entry points of new players, dampen competition and enhance the control of the market by the three (3) existing oil companies. Finally, we come to the provision on predatory pricing which is defined as ". . . selling or offering to sell any product at a price unreasonably below the industry average cost so as to attract customers to the detriment of competitors." Respondents contend that this provision works against Petron, Shell and Caltex and protects new entrants. The ban on predatory pricing cannot be analyzed in isolation. Its validity is interlocked with the barriers imposed by R.A. No. 8180 on the entry of new players. The inquiry should be to determine whether predatory pricing on the part of the dominant oil companies is encouraged by the provisions in the law blocking the entry of new players. Text-writer Hovenkamp, 36 gives the authoritative answer and we quote:

xxx xxx xxx The rationale for predatory pricing is the sustaining of losses today that will give a firm monopoly profits in the future. The monopoly profits will never materialize, however, if the market is flooded with new entrants as soon as the successful predator attempts to raise its price. Predatory pricing will be profitable only if the market contains significant barriers to new entry. As aforediscsussed, the 4% tariff differential and the inventory requirement are significant barriers which discourage new players to enter the market. Considering these significant barriers established by R.A. No. 8180 and the lack of players with the comparable clout of PETRON, SHELL and CALTEX, the temptation for a dominant player to engage in predatory pricing and succeed is a chilling reality. Petitioners' charge that this provision on predatory pricing is anti-competitive is not without reason. Respondents belittle these barriers with the allegation that new players have entered the market since deregulation. A scrutiny of the list of the alleged new players will, however, reveal that not one belongs to the class and category of PETRON, SHELL and CALTEX. Indeed, there is no showing that any of these new players intends to install any refinery and effectively compete with these dominant oil companies. In any event, it cannot be gainsaid that the new players could have been more in number and more impressive in might if the illegal entry barriers in R.A. No. 8180 were not erected. We come to the final point. We now resolve the total effect of the untimely deregulation, the imposition of 4% tariff differential on imported crude oil and refined petroleum products, the requirement of inventory and the prohibition on predatory pricing on the constitutionality of R.A. No. 8180. The question is whether these offending provisions can be individually struck down without invalidating the entire R.A. No. 8180. The ruling case law is well stated by author Agpalo, 37 viz.: xxx xxx xxx The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a separability clause in a statute creates the presumption that the legislature intended separability, rather than complete nullity of the statute. To justify this result, the valid portion must be so far independent of the invalid portion that it is fair to presume that the legislature would have enacted it by itself if it had supposed that it could not constitutionally enact the other. Enough must remain to make a complete, intelligible and valid statute, which carries out the legislative intent. . . . The exception to the general rule is that when the parts of a statute are so mutually dependent and connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute dependent, conditional, or connected with one another, the legislature intended the statute to be carried out as a whole and would not have enacted it if one part is void, in which case if some parts are unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with them. R.A. No. 8180 contains a separability clause. Section 23 provides that "if for any reason, any section or provision of this Act is declared unconstitutional or invalid, such parts not affected thereby shall remain in full force and effect." This separability clause notwithstanding, we hold that the offending provisions of R.A. No. 8180 so permeate its essence that the entire law has to be struck down. The provisions on tariff differential, inventory and predatory pricing are among the principal props of R.A. No. 8180. Congress could not have deregulated the downstream oil industry without these provisions. Unfortunately, contrary to their intent, these provisions on tariff differential, inventory and predatory pricing inhibit fair competition, encourage monopolistic power and interfere with the free interaction of market forces. R.A. No. 8180 needs provisions to vouchsafe free and fair competition. The need for these vouchsafing provisions cannot be overstated. Before deregulation, PETRON, SHELL and CALTEX had no real competitors

but did not have a free run of the market because government controls both the pricing and non-pricing aspects of the oil industry. After deregulation, PETRON, SHELL and CALTEX remain unthreatened by real competition yet are no longer subject to control by government with respect to their pricing and non-pricing decisions. The aftermath of R.A. No. 8180 is a deregulated market where competition can be corrupted and where market forces can be manipulated by oligopolies. The fall out effects of the defects of R.A. No. 8180 on our people have not escaped Congress. A lot of our leading legislators have come out openly with bills seeking the repeal of these odious and offensive provisions in R.A. No. 8180. In the Senate, Senator Freddie Webb has filed S.B. No. 2133 which is the result of the hearings conducted by the Senate Committee on Energy. The hearings revealed that (1) there was a need to level the playing field for the new entrants in the downstream oil industry, and (2) there was no law punishing a person for selling petroleum products at unreasonable prices. Senator Alberto G. Romulo also filed S.B. No. 2209 abolishing the tariff differential beginning January 1, 1998. He declared that the amendment ". . . would mean that instead of just three (3) big oil companies there will be other major oil companies to provide more competitive prices for the market and the consuming public." Senator Heherson T . Alvarez, one of the principal proponents of R.A. No. 8180, also filed S.B. No. 2290 increasing the penalty for violation of its section 9. It is his opinion as expressed in the explanatory note of the bill that the present oil companies are engaged in cartelization despite R.A. No. 8180, viz,: xxx xxx xxx Since the downstream oil industry was fully deregulated in February 1997, there have been eight (8) fuel price adjustments made by the three oil majors, namely: Caltex Philippines, Inc.; Petron Corporation; and Pilipinas Shell Petroleum Corporation. Very noticeable in the price adjustments made, however, is the uniformity in the pump prices of practically all petroleum products of the three oil companies. This, despite the fact, that their selling rates should be determined by a combination of any of the following factors: the prevailing peso-dollar exchange rate at the time payment is made for crude purchases, sources of crude, and inventory levels of both crude and refined petroleum products. The abovestated factors should have resulted in different, rather than identical prices. The fact that the three (3) oil companies' petroleum products are uniformly priced suggests collusion, amounting to cartelization, among Caltex Philippines, Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation to fix the prices of petroleum products in violation of paragraph (a), Section 9 of R.A. No. 8180. To deter this pernicious practice and to assure that present and prospective players in the downstream oil industry conduct their business with conscience and propriety, cartellike activities ought to be severely penalized. Senator Francisco S. Tatad also filed S.B. No. 2307 providing for a uniform tariff rate on imported crude oil and refined petroleum products. In the explanatory note of the bill, he declared in no uncertain terms that ". . . the present set-up has raised serious public concern over the way the three oil companies have uniformly adjusted the prices of oil in the country, an indication of a possible existence of a cartel or a cartel-like situation within the downstream oil industry. This situation is mostly attributed to the foregoing provision on tariff differential, which has effectively discouraged the entry of new players in the downstream oil industry." In the House of Representatives, the moves to rehabilitate R.A. No. 8180 are equally feverish. Representative Leopoldo E. San Buenaventura has filed H.B. No. 9826 removing the tariff differential for imported crude oil and imported refined petroleum products. In the explanatory note of the bill, Rep. Buenaventura explained: xxx xxx xxx As we now experience, this difference in tariff rates between imported crude oil and

imported refined petroleum products, unwittingly provided a built-in-advantage for the three existing oil refineries in the country and eliminating competition which is a must in a free enterprise economy. Moreover, it created a disincentive for other players to engage even initially in the importation and distribution of refined petroleum products and ultimately in the putting up of refineries. This tariff differential virtually created a monopoly of the downstream oil industry by the existing three oil companies as shown by their uniform and capricious pricing of their products since this law took effect, to the great disadvantage of the consuming public. Thus, instead of achieving the desired effects of deregulation, that of free enterprise and a level playing field in the downstream oil industry, R.A. 8180 has created an environment conducive to cartelization, unfavorable, increased, unrealistic prices of petroleum products in the country by the three existing refineries. Representative Marcial C. Punzalan, Jr., filed H.B. No. 9981 to prevent collusion among the present oil companies by strengthening the oversight function of the government, particularly its ability to subject to a review any adjustment in the prices of gasoline and other petroleum products. In the explanatory note of the bill, Rep. Punzalan, Jr., said: xxx xxx xxx To avoid this, the proposed bill seeks to strengthen the oversight function of government, particularly its ability to review the prices set for gasoline and other petroleum products. It grants the Energy Regulatory Board (ERB) the authority to review prices of oil and other petroleum products, as may be petitioned by a person, group or any entity, and to subsequently compel any entity in the industry to submit any and all documents relevant to the imposition of new prices. In cases where the Board determines that there exist collusion, economic conspiracy, unfair trade practice, profiteering and/or overpricing, it may take any step necessary to protect the public, including the readjustment of the prices of petroleum products. Further, the Board may also impose the fine and penalty of imprisonment, as prescribed in Section 9 of R.A. 8180, on any person or entity from the oil industry who is found guilty of such prohibited acts. By doing all of the above, the measure will effectively provide Filipino consumers with a venue where their grievances can be heard and immediately acted upon by government. Thus, this bill stands to benefit the Filipino consumer by making the price-setting process more transparent and making it easier to prosecute those who perpetrate such prohibited acts as collusion, overpricing, economic conspiracy and unfair trade. Representative Sergio A.F . Apostol filed H.B. No. 10039 to remedy an omission in R.A. No. 8180 where there is no agency in government that determines what is "reasonable" increase in the prices of oil products. Representative Dente O. Tinga, one of the principal sponsors of R.A. No. 8180, filed H.B. No. 10057 to strengthen its anti-trust provisions. He elucidated in its explanatory note: xxx xxx xxx The definition of predatory pricing, however, needs to be tightened up particularly with respect to the definitive benchmark price and the specific anti-competitive intent. The definition in the bill at hand which was taken from the Areeda-Turner test in the United States on predatory pricing resolves the questions. The definition reads, "Predatory pricing means selling or offering to sell any oil product at a price below the average variable cost for the purpose of destroying competition, eliminating a competitor or discouraging a competitor from entering the market." The appropriate actions which may be resorted to under the Rules of Court in conjunction with the oil deregulation law are adequate. But to stress their availability and dynamism, it is a good move to incorporate all the remedies in the law itself. Thus, the present bill formalizes the concept of government intervention and private suits to address the problem of antitrust violations. Specifically, the government may file an action to prevent

or restrain any act of cartelization or predatory pricing, and if it has suffered any loss or damage by reason of the antitrust violation it may recover damages. Likewise, a private person or entity may sue to prevent or restrain any such violation which will result in damage to his business or property, and if he has already suffered damage he shall recover treble damages. A class suit may also be allowed. To make the DOE Secretary more effective in the enforcement of the law, he shall be given additional powers to gather information and to require reports. Representative Erasmo B. Damasing filed H.B. No. 7885 and has a more unforgiving view of R.A. No. 8180. He wants it completely repealed. He explained: xxx xxx xxx Contrary to the projections at the time the bill on the Downstream Oil Industry Deregulation was discussed and debated upon in the plenary session prior to its approval into law, there aren't any new players or investors in the oil industry. Thus, resulting in practically a cartel or monopoly in the oil industry by the three (3) big oil companies, Caltex, Shell and Petron. So much so, that with the deregulation now being partially implemented, the said oil companies have succeeded in increasing the prices of most of their petroleum products with little or no interference at all from the government. In the month of August, there was an increase of Fifty centavos (50) per liter by subsidizing the same with the OPSF, this is only temporary as in March 1997, or a few months from now, there will be full deregulation (Phase II) whereby the increase in the prices of petroleum products will be fully absorbed by the consumers since OPSF will already be abolished by then. Certainly, this would make the lives of our people, especially the unemployed ones, doubly difficult and unbearable. The much ballyhooed coming in of new players in the oil industry is quite remote considering that these prospective investors cannot fight the existing and well established oil companies in the country today, namely, Caltex, Shell and Petron. Even if these new players will come in, they will still have no chance to compete with the said three (3) existing big oil companies considering that there is an imposition of oil tariff differential of 4% between importation of crude oil by the said oil refineries paying only 3% tariff rate for the said importation and 7% tariff rate to be paid by businessmen who have no oil refineries in the Philippines but will import finished petroleum/oil products which is being taxed with 7% tariff rates. So, if only to help the many who are poor from further suffering as a result of unmitigated increase in oil products due to deregulation, it is a must that the Downstream Oil Industry Deregulation Act of 1996, or R.A. 8180 be repealed completely. Various resolutions have also been filed in the Senate calling for an immediate and comprehensive review of R.A. No. 8180 to prevent the downpour of its ill effects on the people. Thus, S. Res. No. 574 was filed by Senator Gloria M. Macapagal entitled Resolution "Directing the Committee on Energy to Inquire Into The Proper Implementation of the Deregulation of the Downstream Oil Industry and Oil Tax Restructuring As Mandated Under R.A. Nos. 8180 and 8184, In Order to Make The Necessary Corrections In the Apparent Misinterpretation Of The Intent And Provision Of The Laws And Curb The Rising Tide Of Disenchantment Among The Filipino Consumers And Bring About The Real Intentions And Benefits Of The Said Law." Senator Blas P. Ople filed S. Res. No. 664 entitled resolution "Directing the Committee on Energy To Conduct An Inquiry In Aid Of Legislation To Review The Government's Oil Deregulation Policy In Light Of The Successive Increases In Transportation, Electricity And Power Rates, As well As Of Food And Other Prime Commodities And Recommend Appropriate Amendments To Protect The Consuming Public." Senator Ople observed: xxx xxx xxx WHEREAS, since the passage of R.A. No. 8180, the Energy Regulatory Board (ERB) has imposed successive increases in oil prices which has triggered increases in electricity and power rates, transportation fares, as well as in prices of food and other prime

commodities to the detriment of our people, particularly the poor; WHEREAS, the new players that were expected to compete with the oil cartel-Shell, Caltex and Petron-have not come in; WHEREAS, it is imperative that a review of the oil deregulation policy be made to consider appropriate amendments to the existing law such as an extension of the transition phase before full deregulation in order to give the competitive market enough time to develop; WHEREAS, the review can include the advisability of providing some incentives in order to attract the entry of new oil companies to effect a dynamic competitive market; WHEREAS, it may also be necessary to defer the setting up of the institutional framework for full deregulation of the oil industry as mandated under Executive Order No. 377 issued by President Ramos last October 31, 1996 . . . Senator Alberto G. Romulo filed S. Res. No. 769 entitled resolution "Directing the Committees on Energy and Public Services In Aid Of Legislation To Assess The Immediate Medium And Long Term Impact of Oil Deregulation On Oil Prices And The Economy." Among the reasons for the resolution is the finding that "the requirement of a 40-day stock inventory effectively limits the entry of other oil firms in the market with the consequence that instead of going down oil prices will rise." Parallel resolutions have been filed in the House of Representatives. Representative Dante O. Tinga filed H. Res. No. 1311 "Directing The Committee on Energy To Conduct An Inquiry, In Aid of Legislation, Into The Pricing Policies And Decisions Of The Oil Companies Since The Implementation of Full Deregulation Under the Oil Deregulation Act (R.A. No. 8180) For the Purpose of Determining In the Context Of The Oversight Functions Of Congress Whether The Conduct Of The Oil Companies, Whether Singly Or Collectively, Constitutes Cartelization Which Is A Prohibited Act Under R.A. No. 8180, And What Measures Should Be Taken To Help Ensure The Successful Implementation Of The Law In Accordance With Its Letter And Spirit, Including Recommending Criminal Prosecution Of the Officers Concerned Of the Oil Companies If Warranted By The Evidence, And For Other Purposes." Representatives Marcial C. Punzalan, Jr. Dante O. Tinga and Antonio E. Bengzon III filed H.R. No. 894 directing the House Committee on Energy to inquire into the proper implementation of the deregulation of the downstream oil industry. House Resolution No. 1013 was also filed by Representatives Edcel C. Lagman, Enrique T . Garcia, Jr. and Joker P. Arroyo urging the President to immediately suspend the implementation of E.O. No. 392. In recent memory there is no law enacted by the legislature afflicted with so much constitutional deformities as R.A. No. 8180. Yet, R.A. No. 8180 deals with oil, a commodity whose supply and price affect the ebb and flow of the lifeblood of the nation. Its shortage of supply or a slight, upward spiral in its price shakes our economic foundation. Studies show that the areas most impacted by the movement of oil are food manufacture, land transport, trade, electricity and water. 38 At a time when our economy is in a dangerous downspin, the perpetuation of R.A. No. 8180 threatens to multiply the number of our people with bent backs and begging bowls. R.A. No. 8180 with its anticompetition provisions cannot be allowed by this Court to stand even while Congress is working to remedy its defects. The Court, however, takes note of the plea of PETRON, SHELL and CALTEX to lift our restraining order to enable them to adjust upward the price of petroleum and petroleum products in view of the plummeting value of the peso. Their plea, however, will now have to be addressed to the Energy Regulatory Board as the effect of the declaration of unconstitutionality of R.A. No. 8180 is to revive the former laws it repealed. 39 The length of our return to the regime of regulation depends on Congress which can fasttrack the writing of a new law on oil deregulation in accord with the Constitution. With this Decision, some circles will chide the Court for interfering with an economic decision of Congress. Such criticism is charmless for the Court is annulling R.A. No. 8180

not because it disagrees with deregulation as an economic policy but because as cobbled by Congress in its present form, the law violates the Constitution. The right call therefor should be for Congress to write a new oil deregulation law that conforms with the Constitution and not for this Court to shirk its duty of striking down a law that offends the Constitution. Striking down R.A. No. 8180 may cost losses in quantifiable terms to the oil oligopolists. But the loss in tolerating the tampering of our Constitution is not quantifiable in pesos and centavos. More worthy of protection than the supra-normal profits of private corporations is the sanctity of the fundamental principles of the Constitution. Indeed when confronted by a law violating the Constitution, the Court has no option but to strike it down dead. Lest it is missed, the Constitution is a covenant that grants and guarantees both the political and economic rights of the people. The Constitution mandates this Court to be the guardian not only of the people's political rights but their economic rights as well. The protection of the economic rights of the poor and the powerless is of greater importance to them for they are concerned more with the exoterics of living and less with the esoterics of liberty. Hence, for as long as the Constitution reigns supreme so long will this Court be vigilant in upholding the economic rights of our people especially from the onslaught of the powerful. Our defense of the people's economic rights may appear heartless because it cannot be half-hearted. IN VIEW WHEREOF, the petitions are granted. R.A. No. 8180 is declared unconstitutional and E.O. No. 372 void. SO ORDERED. Regalado, Davide, Jr., Romero, Bellosillo and Vitug, JJ., concur. Mendoza, J., concurs in the result. Narvasa, C.J., is on leave.

EN BANC G.R. No. L-52245 January 22, 1980 PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners, vs. COMMISSION ON ELECTIONS, respondent. Raul M. Gonzales for petitioners Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J: This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Big. 51, 52, and 53 for being unconstitutional. The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo. Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due

process guarantees of the Constitution. Said Section 4 provides: Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of the Constitution and disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the elective officials enumerated in section 1 hereof. Any retired elective provincial city or municipal official who has received payment of the retirement benefits to which he is entitled under the law, and who shall have been 6,5 years of age at the commencement of the term of office to which he seeks to be elected shall not be qualified to run for the same elective local office from which he has retired (Emphasis supplied) Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation." For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory provisions: Sec 7. Terms of Office Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980. .... (Batas Pambansa Blg. 51) Sec. 4. Sec. 4. ... Any person who has committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices covered by this Act, or to participate in any partisan political activity therein: provided that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima fascie evidence of such fact. ... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied). Section 1. Election of certain Local Officials ... The election shall be held on January 30, 1980. (Batas Pambansa, Blg. 52) Section 6. Election and Campaign Period The election period shall be fixed by the Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall commence on December 29, 1979 and terminate on January 28, 1980. (ibid.) In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution, which provides that a "bona fide candidate for any public office shall be it. from any form of harassment and discrimination. "The question of accreditation will not be taken up in this case but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been squarely raised, Petitioners then pray that the statutory provisions they have challenged be declared null and void for being violative of the Constitution. I . The procedural Aspect

At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. The respectively contest completely different statutory provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead nine constraints as the reason of their joint Petition, it would have required only a modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure. For another, there are standards that have to be followed inthe exercise of the function of judicial review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial by the party raising the constitutional question: (3) the plea that the function be exercised at the earliest opportunity and (4) the necessity that the constiutional question be passed upon in order to decide the case (People vs. Vera 65 Phil. 56 [1937]). It may be conceded that the third requisite has been complied with, which is, that the parties have raised the issue of constitutionality early enough in their pleadings. This Petition, however, has fallen far short of the other three criteria. A. Actual case and controversy. It is basic that the power of judicial review is limited to the determination of actual cases and controversies. Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to be rendered without the benefit of a detailed factual record Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads: "Section 2. The Commission on Elections shall have the following power and functions: 1) xxx 2) Be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials. (Emphasis supplied) The aforequoted provision must also be related to section 11 of Art. XII-C, which provides: Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof. B. Proper party. The long-standing rule has been that "the person who impugns the validity of a statute

must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra). In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local elective positions. Neither one of them has been calle ed to have been adversely affected by the operation of the statutory provisions they assail as unconstitutional Theirs is a generated grievance. They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial redress. It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus: ... it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that "the expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds," which may be enjoined at the request of a taxpayer. In the same vein, it has been held: In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and they may, therefore, question the constitutionality of statutes requiring expenditure of public moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als., 15 SCRA 479 [1965]). However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. C. Unavoidability of constitutional question. Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented." We have already stated that, by the standards set forth in People vs. Vera, the present is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural regularity would require that this suit be dismissed.

II. The substantive viewpoint. We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases having been penned by our present Chief Justice. The reasons which have impelled us are the paramount public interest involved and the proximity of the elections which will be held only a few days hence. Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is belied by the fact that several petitions for the disqualification of other candidates for local positions based on the challenged provision have already been filed with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful discrimination. The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is neither well taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable. In respect of election to provincial, city, or municipal positions, to require that candidates should not be more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law would be to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be that persons more than 65 years old may also be good elective local officials. Coming now to the case of retirees. Retirement from government service may or may not be a reasonable disqualification for elective local officials. For one thing, there can also be retirees from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree. But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for the same office from which he had retired, as provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is emphatically significant is that the retired employee has already declared himself tired and unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for this very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated. In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not violated by a reasonable classification based upon substantial distinctions, where the classification is germane to the purpose of the law and applies to all Chose belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments. The classification in question being pursuant to that purpose, it cannot be considered invalid "even it at times, it may be susceptible to the objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547). There is an additional consideration. Absent herein is a showing of the clear invalidity of

the questioned provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to prescribe qualifications for one who desires to become a candidate for office provided they are reasonable, as in this case. In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two parts. The first provides: a. judgment of conviction jor any of the aforementioned crimes shall be conclusive evidence of such fact ... The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption of validity that attaches to a challenged statute, of the well-settled principle that "all reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold that this is one such clear case. Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of dislotalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet. there is "clear and present danger" that because of the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him. Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather than before an administrative body such as the COMELEC. A highly possible conflict of findings between two government bodies, to the extreme detriment of a person charged, will thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for a judicial determination. Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas Pambansa Big. 52 which can stand by itself. WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared valid. Said paragraph reads: SEC. 4. Special disqualification. In addition to violation of Section 10 of Article XII(C) of the Constitution and disqualifications mentioned in existing laws which are hereby declared as disqualification for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall

have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired. 2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that "... the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative of the constitutional presumption of innocence guaranteed to an accused. SO ORDERED. Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur. Fernando, C.J., concurs and submits a brief separate opinion. De Castro, J., abstain as far as petitioner Dumlao is concerned. EN BANC G.R. No. L-29646 November 10, 1978 MAYOR ANTONIO J. VILLEGAS, petitioner, vs.HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO ARCA, respondents. Angel C. Cruz, Gregorio A. Ejercito, Felix C. Chaves & Jose Laureta for petitioner. Sotero H. Laurel for respondents.

FERNANDEZ, J.: This is a petition for certiorari to review tile decision dated September 17, 1968 of respondent Judge Francisco Arca of the Court of First Instance of Manila, Branch I, in Civil Case No. 72797, the dispositive portion of winch reads. Wherefore, judgment is hereby rendered in favor of the petitioner and against the respondents, declaring Ordinance No. 6 37 of the City of Manila null and void. The preliminary injunction is made permanent. No pronouncement as to cost. SO ORDERED. Manila, Philippines, September 17, 1968. (SGD.) FRANCISCO ARCA Judge 1 The controverted Ordinance No. 6537 was passed by the Municipal Board of Manila on February 22, 1968 and signed by the herein petitioner Mayor Antonio J. Villegas of Manila on March 27, 1968. 2 City Ordinance No. 6537 is entitled: AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT A CITIZEN OF THE PHILIPPINES TO BE EMPLOYED IN ANY PLACE OF EMPLOYMENT OR TO BE ENGAGED IN ANY KIND OF TRADE, BUSINESS OR OCCUPATION WITHIN THE CITY OF MANILA WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT FROM THE MAYOR OF MANILA; AND FOR OTHER PURPOSES. 3

Section 1 of said Ordinance No. 6537 4 prohibits aliens from being employed or to engage or participate in any position or occupation or business enumerated therein, whether permanent, temporary or casual, without first securing an employment permit from the Mayor of Manila and paying the permit fee of P50.00 except persons employed in the diplomatic or consular missions of foreign countries, or in the technical assistance programs of both the Philippine Government and any foreign government, and those working in their respective households, and members of religious orders or congregations, sect or denomination, who are not paid monetarily or in kind. Violations of this ordinance is punishable by an imprisonment of not less than three (3) months to six (6) months or fine of not less than P100.00 but not more than P200.00 or both such fine and imprisonment, upon conviction. 5 On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho who was employed in Manila, filed a petition with the Court of First Instance of Manila, Branch I, denominated as Civil Case No. 72797, praying for the issuance of the writ of preliminary injunction and restraining order to stop the enforcement of Ordinance No. 6537 as well as for a judgment declaring said Ordinance No. 6537 null and void. 6 In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his grounds for wanting the ordinance declared null and void: 1) As a revenue measure imposed on aliens employed in the City of Manila, Ordinance No. 6537 is discriminatory and violative of the rule of the uniformity in taxation; 2) As a police power measure, it makes no distinction between useful and non-useful occupations, imposing a fixed P50.00 employment permit, which is out of proportion to the cost of registration and that it fails to prescribe any standard to guide and/or limit the action of the Mayor, thus, violating the fundamental principle on illegal delegation of legislative powers: 3) It is arbitrary, oppressive and unreasonable, being applied only to aliens who are thus, deprived of their rights to life, liberty and property and therefore, violates the due process and equal protection clauses of the Constitution. 7 On May 24, 1968, respondent Judge issued the writ of preliminary injunction and on September 17, 1968 rendered judgment declaring Ordinance No. 6537 null and void and making permanent the writ of preliminary injunction. 8 Contesting the aforecited decision of respondent Judge, then Mayor Antonio J. Villegas filed the present petition on March 27, 1969. Petitioner assigned the following as errors allegedly committed by respondent Judge in the latter's decision of September 17,1968: 9 I THE RESPONDENT JUDGE COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE CARDINAL RULE OF UNIFORMITY OF TAXATION. II RESPONDENT JUDGE LIKEWISE COMMITTED A GRAVE AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE PRINCIPLE AGAINST UNDUE DESIGNATION OF LEGISLATIVE POWER. III RESPONDENT JUDGE FURTHER COMMITTED A SERIOUS AND PATENT ERROR OF LAW IN RULING THAT ORDINANCE NO. 6537 VIOLATED THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE CONSTITUTION.

Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be declared null and void on the ground that it violated the rule on uniformity of taxation because the rule on uniformity of taxation applies only to purely tax or revenue measures and that Ordinance No. 6537 is not a tax or revenue measure but is an exercise of the police power of the state, it being principally a regulatory measure in nature. The contention that Ordinance No. 6537 is not a purely tax or revenue measure because its principal purpose is regulatory in nature has no merit. While it is true that the first part which requires that the alien shall secure an employment permit from the Mayor involves the exercise of discretion and judgment in the processing and approval or disapproval of applications for employment permits and therefore is regulatory in character the second part which requires the payment of P50.00 as employee's fee is not regulatory but a revenue measure. There is no logic or justification in exacting P50.00 from aliens who have been cleared for employment. It is obvious that the purpose of the ordinance is to raise money under the guise of regulation. The P50.00 fee is unreasonable not only because it is excessive but because it fails to consider valid substantial differences in situation among individual aliens who are required to pay it. Although the equal protection clause of the Constitution does not forbid classification, it is imperative that the classification should be based on real and substantial differences having a reasonable relation to the subject of the particular legislation. The same amount of P50.00 is being collected from every employed alien whether he is casual or permanent, part time or full time or whether he is a lowly employee or a highly paid executive Ordinance No. 6537 does not lay down any criterion or standard to guide the Mayor in the exercise of his discretion. It has been held that where an ordinance of a municipality fails to state any policy or to set up any standard to guide or limit the mayor's action, expresses no purpose to be attained by requiring a permit, enumerates no conditions for its grant or refusal, and entirely lacks standard, thus conferring upon the Mayor arbitrary and unrestricted power to grant or deny the issuance of building permits, such ordinance is invalid, being an undefined and unlimited delegation of power to allow or prevent an activity per se lawful. 10 In Chinese Flour Importers Association vs. Price Stabilization Board, 11 where a law granted a government agency power to determine the allocation of wheat flour among importers, the Supreme Court ruled against the interpretation of uncontrolled power as it vested in the administrative officer an arbitrary discretion to be exercised without a policy, rule, or standard from which it can be measured or controlled. It was also held in Primicias vs. Fugoso 12 that the authority and discretion to grant and refuse permits of all classes conferred upon the Mayor of Manila by the Revised Charter of Manila is not uncontrolled discretion but legal discretion to be exercised within the limits of the law. Ordinance No. 6537 is void because it does not contain or suggest any standard or criterion to guide the mayor in the exercise of the power which has been granted to him by the ordinance. The ordinance in question violates the due process of law and equal protection rule of the Constitution. Requiring a person before he can be employed to get a permit from the City Mayor of Manila who may withhold or refuse it at will is tantamount to denying him the basic right of the people in the Philippines to engage in a means of livelihood. While it is true that the Philippines as a State is not obliged to admit aliens within its territory, once an alien is admitted, he cannot be deprived of life without due process of law. This guarantee includes the means of livelihood. The shelter of protection under the due process and equal protection clause is given to all persons, both aliens and citizens. 13 The trial court did not commit the errors assigned.

WHEREFORE, the decision appealed from is hereby affirmed, without pronouncement as to costs. SO ORDERED. Barredo, Makasiar, Muoz Palma, Santos and Guerrero, JJ., concur. Castro, C.J., Antonio and Aquino, Fernando, JJ., concur in the result. Concepcion, Jr., J., took no part. EN BANC G.R. No. L-52304 January 28, 1980 RAMON B. CENIZA, FEDERICO C. CABILAO, JR., NELSON J. ROSAL and ALEJANDRO R. ALINSUG, petitioners, vs.COMMISSION ON ELECTIONS, COMMISSION ON AUDIT, and NATIONAL TREASURER, respondents.

CONCEPCION JR., J.: Petition for prohibition and mandamus moth a prayer for a writ of preliminary injunction. On December 22. 1979, the Interim Batasang Pambansa enacted Batas Blg. 51 providing for local elections on January 30, 1980. Section of the statute provides: SEC. 3. Cities. There shall be in each city such elective local officials as provided in their respective charters, including the city mayor, the city vice-mayor, and the elective members of the sangguniang panglungsod, all of whom shall' be elected by the qualified voters in the city. In addition thereto, there shall be appointive sangguniang panglungsod members consisting of the of the city association of barangay councils, the President of the city federation of the kabataang barangay, and one representative each from the agricultural and industrial labor sectors who shall be appointed by the President (Prime Minister) whenever, as de by the sangguniang panglungsod, said sectors are of sufficient number in the city to warrant representation. Until cities are reclassified into highly urbanized and component cities in accordance with the standards established in the Local Government Code as provided for in Article XI, Section 4(1) of the Constitution. any city now existing with an annual regular derived from infrastructure and general funds of not less than forty million pesos (P40,000,000.00) at the time of the approval of this Act shag be classified as a highly urbanized city. All other cities shall be considered components of the provinces where they are geographically located. The City of Baguio, because of its special functions as the summer capital of the Philippines, shall be classified as a highly urbanized city irrespective of its income. The registered voters of a component city may be entitled to vote in the election of the officials of the province of which that city is a component, if its charter so provides. However, voters registered in a highly urbanized city, as hereinabove defined shall not participate nor vote in the election of the officials of the province in which the highly urbanized city is geographically located. To implement this Act, the Commission on Elections (COMELEC, for short) adopted Resolution No. 1421, which reads as follows: WHEREAS, Batas Pambansa Blg. 51 in calling for the election of the provincial governor, provincial vice-governor and members of the Sangguniang Panlalawigan in each province classified the chartered cities of the Philippines into "highly urbanized" and "component"

cities based on the annual regular income of each city, and provided that "the registered voter of a component city may be entitled to vote in the election of the officials of the province of which that city is a component, if its charter provides", but that "voters registered in a highly urbanized city, shall not participate nor vote in the election of the officials of the province in which the highly urbanized city is geographically located"; WHEREAS, inasmuch as the charters of the different cities vary with respect to the right of their registered voters to vote for the provincial officials of the provinces where they are located, there is need to study the various charters of the cities and determine what cities shall and shall not vote for provincial officials pursuant to Batas Pambansa Blg. 51; WHEREAS, the voters in the cities should be accordingly informed if they are going to vote for provincial officials or not, for their proper guidance; NOW, THEREFORE, the Commission on Elections, by virtue of the powers conferred upon it by the Constitution, the 1978 Election Code and Batas Pambansa Blg. 52 (51) RESOLVED, as it hereby RESOLVES, that the qualified voters in each city shall or shall not be entitled to vote for the provincial officials of the province where they are geographically located, to wit: A. Cities not entitled to participate in the election of pro- provincial officials

. Baguio

11. Mandaue

2. Bais

12. Manila

3. Canlaon

13. Naga

4. Caloocan

14. Ormoc

5. Cebu

15. Oroquieta

6. Cotabato

16. Ozamis

7. Dagupan

17. Pasay

8. Davao

18. Quezon

9. General Santo

19. San Carlos (Pangasinan)

10. Iloilo

20. Zamboanga

Because the City of Cebu has an income of P51,603,147,64, it is classified as a highly urbanized city and the voters thereof cannot take part in the election of the elective provincial officials of the province of Cebu, although the Charter of Cebu City 1 allows the qualified voters of the city to vote in the election of the provincial officials of the Province of Cebu. The City of Mandaue, not having an annual regular income of not less than ?40 million, is classified as a component city. But the registered voters of the city cannot vote for the provincial elective officials because its Charter 2 expressly provides that the registered voters of the city cannot participate in the election of the provincial officials of the Province of Cebu, except to be a candidate therefor. The petitioners filed the instant suit as taxpayers and registered voters in the Cities of Cebu and Mandaue. They are members of a civic and non-partisan group known as D-OE-R-S (an accronym for "DEMOCRACY OR EXTINCTION: RESOLVED TO SUCCEED) which counts lawyers among its members, and extends free legal assistance to citizens regardless of economic and social status in meritorious cases involving violation of civil liberties and basic human rights. They vigorously assail Section 3 of Batas Pambansa Blg. 51, which uses the annual income of a given city as the basis for classification of whether or not a particular city is a highly urbanized city whose voters may not participate in the election of provincial officials of the province where the city is geographically located; and Republic Act No. 5519, otherwise known as the Charter of Mandaue City, which went into effect without the benefit of ratification by the residents of Mandaue in a plebiscite or referendum. They pray that upon filing of the instant petition, a restraining order be issued "temporarily prohibiting the holding of election for Provincial Governor and other elective provincial officials in the province where the 18 cities listed by the respondent COMELEC are located, particularly Cebu City and Mandaue City, and temporarily prohibiting the National Treasurer to release public funds and the COA to pass in audit said funds in connection with and for the purpose of holding local elections in said provinces; and after hearing, to make the injunction permanent declaring unconstitutional and therefore void Section 96, Art. XVIII of the Charter of Mandaue, otherwise known as RA 5519," and should the stopping of the provincial elections in the provinces concerned be not possible, the respondent COMELEC be directed "to allow the qualified registered voters in the cities listed by said respondent, particularly Cebu City and Mandaue City, to participate in the election of, and vote for, the Provincial Governor and other elective provincial officials and preparing the corresponding official ballots for this purpose which shall provide spaces therein for Provincial Governor and other elective provincial officials of the provinces concerned, particularly the province of Cebu." The petitioners contend that "Section 3 of Batas Blg. 885 3 insofar as it classifies cities including Cebu city as highly urbanized as the only basis for not allowing its electorate to vote for the provincial officials is inherently and palpably unconstitutional in that such classification is not based on substantial distinctions germane to the purpose of the law which in effect provides for and regulates the exercise of the right of suffrage, and therefore such unreasonable classification amounts to a denial of equal protection." We find no merit in the petition. The thrust of the 1973 Constitution is towards the fullest autonomy of local government units. In the Declaration of Principles and State Policies, it is stated that "The state shall guarantee and promote the autonomy of local government units, especially the barrio, to ensure their fullest development as self-reliant communities." 4 To this end, the Constitution directs the National Assembly to "enact a local government code which may not thereafter be amended except by the majority vote of all its members, defining a more responsive and accountable local government structure with an effective system of recall, allocating among the different local governments their powers, responsibilities, and resources, and providing for the

qualifications, election and removal, term, salaries, powers, functions, and duties of local officials, and all other matters relating to the organization and operation of local government units," 5 and empowered local government units "to create its own sources of revenue and to levy taxes, subject to limitations as may be provided by law." 6 Art. XI, Section 4(1) of the said Constitution places highly urbanized cities outside the supervisory power of the province where they are geographically located. This is as it should be because of the complex and varied problems in a highly urbanized city due to a bigger population and greater economic activity which require greater autonomy. Corollary to independence however, is the concomitant loss of the right to participate in provincial affairs, more particularly the selection of elective provincial officials since these provincial officials have ceased to exercise any governmental jurisdiction and authority over said city. Thus, in the case of Teves vs. Commission on Election 7 this Court, in holding that the registered voters of the City of Dumaguete cannot vote for the provincial officials of Negros Oriental because the charter of the city does not expressly allow the voters in the city to do so, ruled: The creation of Dumaguete City has made it a political entity separate from and independent of the province of Negros Oriental. The purpose of an election is to enable the electorate to choose the men that will run their government, whether national, provincial, municipal or city. It so, no useful end will be served by allowing in the absence of express legislative preference the voters of a city to ceased to have any governmental jurisdiction and authority over said city. To confirm our view that the city of Dumaguete has been segregated from the province of Oriental Negros for purposes of provincial elections, we should point to the penultimate section of the charter providing that "until otherwise provided by law, the City of Dumaguete shall continue as part of the first representative district of the Province of Oriental Negros." This is an express exception to the general effect of separation an exception that serves to reiterate or even establish the rule. In other words, the Congress meant that the inhabitants of the city may not vote for provincial officials, but may vote for their representative in Congress. The classification of cities into highly urbanized cities and component cities on the basis of their regular annual income is based upon substantial distinction. The revenue of a city would show whether or not it is capable of existence and development as a relatively independent social, economic, and political unit. It would also show whether the city has sufficient economic or industrial activity as to warrant its independence from the province where it is geographically situated. Cities with smaller income need the continued support of the provincial government thus justifying the continued participation of the voters in the election of provincial officials in some instances. The petitioners also contend that the voters in Mandaue City are denied equal protection of the law since the voters in other component cities are allowed to vote for provincial officials. The contention is without merit. The practice of allowing voters in one component city to vote for provincial officials and denying the same privilege to voters in another component city is a matter of legislative discretion which violates neither the Constitution nor the voter's right of suffrage. In the case of Teves v. Commission on Election 8 the Court said. Petitioners' contention is that, as the Charter of Dumaguete City is silent as to the right of its qualified voters to participate in the election of provincial officials of Negros Oriental and as said voters are residents of the province, they are clearly entitled to vote for said provincial officials. The charters of other recently formed cities are articulate on the matter. Thus, in the case of Bacolod, Cabanatuan Legaspi Naga, and Ormoc, their charters expressly prohibit the residents therein from voting for provincial officials of the province to which said cities formerly belonged. Upon the other hand, the charters of Cagayan de Oro, Butuan, Cavite, Iloilo, Calbayog Lipa San Pablo, and Dagupan contain provisions extending their part in the election of the provincial official cities were previously included.

The question that presents itself has reference to the effect of the omission in the charter of Dumaguete City of an express provision on the right of its residents to vote for provincial officials of Negros Oriental, in the light of the legislative practice that, when desired, the right is either recognized or withdrawn expressly. We are inclined to overrule petitioners' position. The equal protection of the law contemplates equality in the enjoyment of similar rights and privileges granted by law. It would have been discriminatory and a denial of the equal protection of the law if the statute prohibited an individual or group of voters in the city from voting for provincial officials while granting it to another individual or groups of voters in the same city. Neither can it be considered an infringement upon the petitioners' rights of suffrage since the Constitution confers no right to a voter in a city to vote for the provincial officials of the province where the city is located. Their right is limited to the right to vote for elective city officials in local elections which the questioned statues neither withdraw nor restrict. The petitioners further claim that to prohibit the voters in a city from voting for elective provincial officials would impose a substantial requirement on the exercise of suffrage and would violate the sanctity of the ballot, contrary to the provisions of Art. VI, Section 1 of the Constitution. The prohibition contemplated in the Constitution, however, has reference to such requirements, as the Virginia poll tax, invalidated in Harper vs. Virginia Board of Elections, 9 or the New York requirement that to be eligible to vote in a school district, one must be a parent of a child enrolled in a local public school, nullified in Kramer vs. Union Free School District, 395 U.S. 621, which impose burdens on the right of suffrage without achieving permissible estate objectives. In this particular case, no such burdens are imposed upon the voters of the cities of Cebu and Mandaue. They are free to exercise their rights without any other requirement, save that of being registered voters in the cities where they reside and the sanctity of their ballot is maintained. It is also contended that the prohibition would subvert the principle of republicanism as it would deprive a citizen his right to participate in the conduct of the affairs of the government unit through the exercise of his right of suffrage. It has been pointed out, however, that the provincial government has no governmental supervision over highly urbanized cities. These cities are independent of the province in the administration of their affairs. Such being the case, it is but just and proper to limit the selection and election of the provincial officials to the voters of the province whose interests are vitally affected and exclude therefrom the voters of highly urbanized cities. Petitioners assail the charter of the City of Mandaue as unconstitutional for not having been ratified by the residents of the city in a plebiscite. This contention is untenable. The Constitutional requirement that the creation, division, merger, abolition, or alteration of the boundary of a province, city, municipality, or barrio should be subject to the approval by the majority of the votes cast in a plebiscite in the governmental unit or units affected 10 is a new requirement that came into being only with the 1973 Constitution. It is prospective 11 in character and therefore cannot affect the creation of the City of Mandaue which came into existence on June 21, 1969. Finally, the petitioners claim that political and gerrymandering motives were behind the passage of Batas Blg. 51 and Section 96 of the Charter of Mandaue City. They contend that the Province of Cebu is politically and historically known as an opposition bailiwick and of the total 952,716 registered voters in the province, 234,582 are from Cebu City and 44,358 come from Mandaue City, so that 278,940 electors, or close to one-third (1/3) of the entire province of Cebu would be barred from voting for the provincial officials of the province of Cebu. Such charge has no factual and legal basis. "Gerrymandering" is a "term employed to describe an apportionment of representative districts so contrived as to give an unfair advantage to the party in power. 12 The questioned statutes in this particular case do not apportion representative districts. The said representative districts remain the same. Nor has it been shown that there is an unfair advantage in favor of the candidates of the party in power. As the Solicitor General pointed out, it may even be that the majority of the city voters are supporters of the administration candidates, so

that the enactment of the questioned statutes will work to their disadvantage. WHEREFORE, the petition should be, as it is hereby dismissed. Costs against the petitioners. SO ORDERED. Fernando, C.J., Barredo, Makasiar, Antonio, Aquino, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur Teehankee, J., took no part. EN BANC G.R. No. 56515 April 3, 1981 UNITED DEMOCRATIC OPPOSITION (UNIDO), petitioner, vs.COMMISSION ON ELECTIONS (COMELEC), respondent.

BARREDO, J.: Appeal by the UNIDO, a political organization or aggrupation campaigning for "NO" votes to the amendments to the Constitution of the Philippines of 1973 proposed by the Batasang Pambansa, from the resolutions of the respondent Commission on Elections dated March 18 and March 22, 1981. As alleged in the petition: 3. Respondent COMELEC issued three (3) Resolutions all dated March 5, 1981, to wit: (1) Resolution No. 1467 providing for Rules and Regulations for 'equal opportunity' on public discussions and debates on the plebiscite questions to be submitted to the people on April 7, 1981; (2) Resolution No.1468 providing "equal time on the use of the broadcast media (radio and television) in the plebiscite campaign"; and (3) Resolution No.1469 providing for "equal space on the use of the print media in the 1981 plebiscite of April 7, 1981". The pertinent portions of said Resolutions Nos. 1467, 1468 and 1469 are attached to this Petition as Annexes "A", "A- l" and "A-2" respectively; (P. 2, Petition.) The questioned resolutions are as follows: RESOLUTION NO. 1467 RULES AND REGULATIONS ON PUBLIC DISCUSSIONS AND DEBATES ON THE PLEBISCITE QUESTIONS The Commission on Elections, pursuant to the powers vested in it by the Constitution, the 1978 Election Code and pertinent enactments of the Batasang Pambansa, RESOLVED to promulgate the following rules and regulations governing free discussions and debates on the plebiscite questions to be submitted to the people on April 7, 1981. (Annex "A", Petition.) xxx xxx xxx

RESOLUTION NO. 1468 The Commission on Elections, by virtue of the powers conferred upon it by the Constitution, the 1978 Election Code and pertinent enactments of the Batasang Pambansa, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations to govern the use of broadcast media in the 1981 plebiscite. I. GENERAL PROVISIONS SECTION 1. Policy. (1) These rules and regulations are intended to insure that broadcast time for campaign purposes equal as to duration and quality shall be available to all supporters or oppositors, political parties, groups or aggrupations at the same rates or given free of charge. (2) Radio and television stations shall not be allowed to schedule any program or permit any sponsor to manifestly favor or oppose any side plebiscite issues or to unduly or repeatedly refer to or include in the broadcast any supporter or oppositor and/or political party, group or favoring or opposing any side of the 1981 plebiscite issues. non-political of the 1981 program or aggrupation

(3) In all instances, the right of radio and television stations to broadcast accounts of significant or newsworthy events and views on matters of public interest shall not be unpaired. (Annex "A-1", Petition.) xxx xxx xxx RESOLUTION NO. 1469 The Commission on Elections, pursuant to its powers under the Constitution, the 1978 Election Code, and pertinent enactments of the Batasang Pambansa, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the use of the print media, the printing and dissemination of printed political propaganda in the campaign for or against the 1981 plebiscite questions. I. GENERAL PROVISIONS SECTION 1. Policy The policy herein is to enable individual supporters, oppositors, political parties, groups or aggrupations when they so desire, to purchase or avail of advertising space for campaign purposes under the following rules and regulations which assure that available advertising space in the print media shall be, as far as practicable, equitably allocated. SECTION 2. Comelec Supervision. The Commission on Elections shall recognize the principle of self-regulation in the print media and shall exercise as far as practicable only minimal supervision over the print media leaving the enforcement of these rules and regulations largely to the Ministry of Public Information. (Annex "A-2", Petition.) 4. Petitioner UNIDO addressed a letter dated 10 March 1981 to respondent COMELEC, which reads: Your Resolutions Nos. 1467, 1468 and 1469, all promulgated on March 5, 1981, provided for equal opportunity "on public discussion and debates on the plebiscite", equal time "on the use of the broadcast media in the plebiscite campaign" and equal space "on the use of the print media in the 1981 plebiscite". The newspapers this morning have announced that President Marcos will lead the campaign for "Yes" votes on the proposed constitutional amendments in the April 7 plebiscite in his nationwide "Pulong-Pulong sa Pangulo" radio-television program on Thursday, March 12, from 9:30 to 11:30 P.M., which will be carried live by 26 television and 248 radio stations throughout the country.

The undersigned, in behalf of the United Democratic Opposition (UNIDO), hereby demand exactly the same number of TV and radio stations all over the country at the earliest possible date, to campaign for 'No' votes in the forthcoming plebiscite. Likewise, on 17 March 1981, petitioner thru its undersigned legal counsel addressed its second letter to respondent Commission on Elections, which reads: Pursuant to the letter of UNIDO dated 10 March 1981 requesting for equal opportunity, the same prime time and number of TV and radio stations all over the country which were utilized by President Marcos last March 12 from 9:30 to 11:30 P.M., we wish to state that on Saturday, March 21, the UNIDO will hold a public meeting at the Plaza Miranda, Quiapo, Manila, and we hereby request that the same be covered by radio and television from 9:30 to 11:30 P.M. We trust that the radio and. television facilities win be directed to comply with this request. 5. Respondent COMELEC issued its Resolution of March 18, 1981 quoting the above letters of petitioner UNIDO, but held that they "cannot be granted and the same is hereby denied." Said COMELEC Resolution appears as Excerpts from the Minutes of the Session of the Commission Held on March 19, 1981', a copy of which is hereto attached to form an integral part of this Petition as Annex "B"; (Pp. 2-3, Petition.) Said Annex "B" reads thus: EXCERPT FROM THE MINUTES OF THE SESSION OF THE COMMISSION HELD ON MARCH 18,1981 (UNDER THE SAME QUORUM) xxx xxx xxx 81-54. In the matter of the letter-request of the United Democratic Opposition (UNIDO) for free coverage by "TV and Radio Stations all over the country" of its campaign for "No" votes in the forthcoming plebiscite. Before the Commission is a "demand" of the United Democratic Opposition (UNIDO) for coverage by 'TV and radio stations all over the country' of its campaign for 'No' votes in the forthcoming plebiscite. This 'demand' is contained in a letter dated 10 March 1981, received by the Commission on Elections on March 11, 1981, signed by Gerardo Roxas and J.B. Laurel, Jr., quoted in full as follows: 10 March 1981 The Commission on Elections Manila Gentlemen: Your Resolution Nos. 1467, 1468 and 1469, all promulgated on March 5, 1981, provide for equal opportunity "on public discussion and debate on the plebiscite", equal time on the use of the broadcast media in the plebiscite campaign and equal space on the use of the print media in the 1981 plebiscite The newspapers this morning have announced that President Marcos will lead the campaign for "Yes" votes on the proposed constitutional amendments in the April 7 plebiscite in his nationwide "Pulong-Pulong sa Pangulo" radio television program on Thursday, March 12, from 9:30 to 11:30 P.M., which will be carried five by 26 television and 248 radio stations throughout the country.

The undersigned, in behalf of the United Democratic Opposition (UNIDO), hereby demand exactly the same opportunity, the same prime tune and the same number of TV and radio stations all over the country at the earliest possible date, to campaign for 'No' votes in the forthcoming plebiscite. Very truly yours, (SGD.) GERARDO ROXAS (SGD.) J. B. LAUREL, JR. Subsequently, on 17 March 1981, the Legal Counsel of the UNIDO, Ambrosio Padilla, reiterated the UNIDO desire for coverage by media, "the same prime time and number of TV and radio stations all over the country which were utilized by President Marcos last March 12 from 9:30 to 11:30 P.M." In this letter, the legal counsel manifested that the UNIDO wants media coverage for its projected "public meeting at the Plaza Miranda, Quiapo, Manila . . . . from 9:30 to 11:30 P.M." on Saturday, March 21. The letter of the UNIDO Legal Counsel reads 17 March 1981 The Commission on Elections Manila Attention: CHAIRMAN VICENTE M. SANTIAGO, JR. Gentlemen: Pursuant to the letter of UNIDO dated 10 March 1981 requesting for equal opportunity, the same prime time and number of TV and radio stations all over the country which were utilized by President Marcos last March 12 from 9:30 to 11:30 P.M., we wish to state that on Saturday, March 21, the UNIDO will hold a public meeting at the Plaza Miranda, Quiapo, Manila, and we hereby request that the same be covered by radio television from 9:30 to 11:30 P.M. We trust that the radio and television facilities will be directed to comply with this request. Very truly yours, (SGD.) AMBROSIO PADILLA Legal Counsel, UNIDO After due and careful deliberation, this Commission holds, and hereby rules, that the demand of the UNIDO cannot be granted and the same is hereby denied. It is the considered view of this Commission that when President Marcos conducted his 'pulong-pulong' or consultation with the people on March 12, 1981, he did so in his capacity as President Prime Minister of the Philippines and not as the head of any political party. Under the Constitution, the 'Prime Minister and the Cabinet shall be responsible . . . . for the program of government and shall determine the guidelines of national policy' (Art. IX, Sec. 2 ). 'This Commission takes judicial notice of the fact that the proposed amendments, subject of the President's remarks in the 'Pulong-Pulong Pambansa' last March 12, 1981, were initiated under the leadership of Mr. Marcos as President/Prime Minister in the exercise of his constitutional prerogative aforecited. In fact, it was President/Prime Minister Ferdinand E. Marcos who issued the special call for the Batasang Pambansa to convene as a constituent assembly to propose amendments to the Constitution (Proclamation No. 2040 dated December 5, 1980).

It cannot be denied that seeking constitutional changes through the means sanctioned by the Constitution constitutes a program of government imbued with the nature of highest importance. The President/Prime Minister initiated this program of constitutional remaking. It is, therefore, his corrollary prerogative to enlighten the people on the sense, significance, necessity and nuance of the constitutional amendments which he wanted the people to support. It would be an Idle, if not absurd proposition, to declare that the President/Prime Minister is 'responsible for the program of government and the guidelines of policy' and yet deprive him of the right and opportunity to inform and enlighten the people of the rationale of such initiatives without at the same time granting the same right to the opposition. Under our Constitution the President/Prime Minister has no counter-part, not even the Opposition still waiting in the uncertain wings of power. This, precisely, was what President Marcos sought to accomplish through the "PulongPulong Pambansa" last March 12, 1981. In the letter dated March 10, 1981 by Messrs. Roxas and Laurel, it was claimed that the program was the nationwide "Pulong-Pulong sa Pangulo" (Emphasis supplied). This is an admission that the "Pulong-Pulong" was for the "Pangulo", not as head of a political party but as President/Prime Minister. This program "Pulong-Pulong sa Pangulo" is of long standing and has been used by President/Prime Minister Marcos to bring to the attention of the people certain matters that need to be understood by them. For instance, the President used this program once to explain to the people the increase in the price of gasoline and other petroleum products. The program 'Pulong-Pulong sa Pangulo' is not a political or partisan vehicle but an innovative system of participatory democracy where the President as leader of the nation enunciates certain programs or policies and thereafter subjected to interrogation by panelists (common men and women) in various strategic places. This is why the title is 'Pulong-Pulong'. It is not a one way arrangements; its format is intended to result in effective multi-way consultation between the leader of the nation and the people. The UNIDO or any of its leaders does not have the same constitutional prerogatives vested in the President/Prime Minister as above discussed. As such, it has no right to 'demand' equal coverage by media accorded President Marcos. The UNIDO, however, is free to enter into appropriate contracts with the TV or radio stations concerned. This Commission, however, cannot direct these media to grant free use of their facilities. First of all, the Comelec cannot assume dictatorial powers and secondly, the rule of equal time for campaigning as to duration and quality is not applicable under the circumstances of this case, for the reasons above-stated. WHEREFORE, premises considered, the "demand" of the UNIDO is hereby denied. Let the Executive Director cause the implementation of this resolution. SO ORDERED. xxx xxx xxx This is to certify that the foregoing is a true and correct excerpt from the minutes of the Session of the Commission held on March 18, 1981. (Sgd). RUPERTO P. EVANGELISTA Secretary of the Commission. 6. Petitioner UNIDO thru its undersigned counsel addressed its letter dated March 20, 1981 as its "motion for reconsideration" of the COMELEC Resolution of March 18, 1981 (Annex "B") and submitted six (6) reasons why said Resolution should be reconsidered, and the request or demand of petitioner should be granted for nationwide coverage of its

public meeting at Plaza Miranda on Saturday, March 21, 1981, similar or equal to the nationwide coverage of the "Pulong-Pulong" of March 12, 1981. A copy of said letter of March 20, 1981 as petitioner's motion for reconsideration is hereto attached to form an integral part of this Petition as Annex 'C'; Annex "C" follows: March 20, 1981 The Commission on Elections Manila Gentlemen: UNIDO respectfully submits this Motion for Reconsideration of the COMELEC Resolution of March 18, 1981, which denied the letters of UNIDO dated March 10 and 17, 1981 on the following considerations: 1. The Resolution states that the coverage of the "Pulong-Pulong" on March 12, 1981 was extended to Pres. Marcos "in his capacity as President/Prime Minister and not as head of any political party", who is "responsible ... for the program of government and shall determine the guidelines of national policy". But the radio and television coverage on March 12th, did not deal with any "program of government" nor any 'guideline of national policy". The subject matter of said "Pulong-Pulong" were a campaign for the approval of the constitutional amendments proposed by the Interim Batasang Pambansa, for ratification of the people with their "YES" votes. 2. As announced by President Marcos himself and as stated in the letter of UNIDO of March 10, "President Marcos will lead the campaign for "YES" votes on the proposed constitutional amendments in the April 7 plebiscite". The radio and television facilities throughout the country on March 12 was used by President Marcos in his capacity as political leader of the KBL political party, and not in his capacity as President/Prime Minister. 3. The Resolution states that Mr. Marcos 'initiated the amendments, he convened the Batasang Pambansa as a constituent assembly, and he initiated this program of constitutional remaking'. When the proposed amendments were passed by the Batasan under his leadership, his function as President/Prime Minister was completed. His campaign for the ratification by the people of said amendments was no longer President/Prime Minister, but as the political leader of KBL as the dominant political party in the Interim Batasang Pambansa. 4. The Resolution states that the name "Pulong-Pulong sa Pangulo" is an admission that the television and radio coverage of said program on March 12, was utilized by Mr. Marcos 'not as head of a political party but as President/Prime Minister. The nature of said program is not determined by its name but by the subject matter thereof. In fact, it may be considered as a misuse of said program as political campaign for the purpose of inducing "YES" votes. 5. The Resolution states that COMELEC "cannot direct these media to grant free use of their facilities", but UNIDO "is free to enter into appropriate contracts with the TV or radio stations concerned". But Pres. Marcos campaigning for "YES" votes did not enter into such contracts, but had "free use" of said facilities. For the Resolution to require UNIDO to pay for time in a national radio and TV coverage is to impose an "impossible" financial condition. 6. The Resolution states that "COMELEC can not assume dictatorial powers". The COMELEC as a constitutional body has the constitutional right and power to have its Resolutions Nos. 1497, 1498 and 1499 on equal opportunity, equal space and equal time respected and obeyed by all. Otherwise, said Resolutions will be only in form without any

substance. In view of the foregoing, UNIDO respectfully prays that the Resolution of March 19, 1981 denying the request and demand of UNIDO for equal time, be reconsidered. It is likewise prayed that the letter requests of UNIDO be granted for nationwide coverage of its public meeting at Plaza Miranda on Saturday, March 21, 1981. Very truly yours, SGD.) AMBROSIO PADILLA Legal Counsel, UNIDO 7. Respondent COMELEC RESOLVED TO DENY for lack of merit' the letter-motion for reconsideration (Annex "C") in its Resolution of March 22, 1981 as per its "Excerpts from the Minutes of the Session of the Commission Held on March 21, 1981". A copy of said Excerpt-Resolution of March 21, 1981 is hereto attached to form an integral part of this Petition as Annex "D"; Annex "D" reads thus: EXCERPT FROM THE MINUTES OF THE SESSION OF THE COMMISSION HELD ON MARCH 21, 1981 (UNDER THE SAME QUORUM) xxx xxx xxx 81.56. Considering the allegations in the letter-motion for reconsideration, dated and filed on March 20, 1981, by the UNIDO thru counsel, and there being no strong or cogent reasons to disturb the findings and conclusions in the Resolution sought to be reconsidered, the Commission RESOLVED to DENY the said letter-motion for reconsideration for lack of merit. Let the Executive Director inform the parties concerned of this resolution. SO ORDERED. xxx xxx xxx This is to certify that the foregoing is a true and correct excerpt from the minutes of the session of the Commission held on March 21, 1981. (SGD.) RUPERTO P. EVANGELISTA Secretary of the Commission The basic grounds of the present appeal are stated in the petition thus: 9. Said COMELEC Resolutions. Annexes "B" and "D", are also contrary to the Constitution and the law, and moreover, are unjust, unfair and inequitable, for said Resolutions violate the basic principles of equality, good faith and fair play, and they are not conducive to insure free, orderly and honest elections; 10. The request and/or demand of petitioner for equal broadcast media of its public meeting or rally at the Plaza Miranda last Saturday, March 21, 1981 (ante par. 4) was arbitrarily denied by respondent COMELEC in its Resolutions (Annexes "B" and "D"). As the political campaign of the Kilusan ng Bagong Lipunan (KBL) for "YES" votes used all the radios and televisions in the Pulong Pulong of its political leader, President Ferdinand E. Marcos, the political campaign for "NO" votes of petitioner UNIDO should and must be

granted the same right and equal use of the same facilities for the remaining days of the political campaign for "NO" votes up to the plebiscite on April 7, 1981; These grounds were eloquently expanded by distinguished counsel for petitioner, Senator Ambrosio Padilla, during the hearing held in the afternoon of Tuesday, March 31, 1981. Much as it is indeed desirable and idealistic that the widest and fullest opportunity to be heard and explain their side should be given to those opposed to the proposed constitutional amendments, there are certain inexorable rules and principles that govern the situation at hand which, no matter in what direction one's sympathies may be inclined, have to be observed in the best interests of all concerned as this Court sees them. Indubitably, the proposed changes of the Charter are of deep and transcendental importance, since they will affect not only the structure of government and the democratic institutions and ideals vis-a-vis the presidential and parliamentary systems to which our people have been exposed up to the present, and they could outlast most of us and our children and our children's children. Quite a number of those Ideals and institutions are fondly cherished and enshrined as sacred by some respectable elements in the country, admittedly as knowledgeable and patriotic as those who are advocating their alteration or modification. It is obvious that the proposed constitutional changes are purported to establish rather drastic innovations in the distribution of at least the executive and legislative powers of the national government, in an avowedly indigenous manner more responsive and attuned not only to the mores, modes and idiosyncracies of our people and the prevailing national and international circumstances, which evidently require unusual means to preserve and defend the state and the territorial integrity of the country, albeit such proposed reforms maintain fundamentally the republican and democratic character of our system of government. Thus, We reiterate, that the more the people are adequately informed about the proposed amendments, their exact meaning, implications and nuances, the better. Herein lies the apparent plausibility of petitioner's pose. There are, however, certain norms which even petitioner and those that compose it know very well that this Court, all the amplitude of its prerogatives notwithstanding cannot disregard. Denial of due process is considered generally as the first and the most valued right of everyone under the Bill of Rights. For this Court to mandate the Comelec, assuming We had such power, having in view the constriction of the Supreme Court's authority over the actuations of the Comelec under the new constitution as discoursed by Us in Aratuc vs. Comelec, G.R. Nos. L-49705-09, February 8, 1979, 88 SCRA 251, petitioner evidently overlooks the fact that the television and radio stations they refer to in their petition who will be directly affected by any injunction of the Comelec upon Our orders are not parties to this case. It is elementary, to state the obvious, that in the premises, We would be over-reaching the bounds of our constitutional powers if We acceded to petitioner request, absent such indispensable parties. In fact, petitioner has not shown, for apparently they have not done so, that they have requested any TV or radio station to give them the same time and style of "pulong-pulong" as that which they afforded the President on March 21, 1981 and that their request has been denied. No doubt the Constitution and the Election Code provisions as well as the general Comelec resolution cited by petitioner's counsel may be availed of, but since, We have not been informed of the circumstances under which the President was accorded the privilege which petitioner wants to be equally granted to them, We are not even in a position to determine under what definite terms the order prayed for should be issued by Us, considering there are other groups and aggrupations not to speak of individuals who are similarly situated as petitioner who would also want to be heard. We are afraid We would be expecting from the TV and radio networks more than what conceivably the Charter, the law and the Comelec resolutions contemplate, if We granted what UNIDO wants and did less for those other oppositors to the amendments who may come to Us. Anent the equal time, equal space and equal quality of exposure claimed by petitioner, it should be informative to quote the pertinent constitutional provisions, laws and Comelec resolutions: Section 5 of Article XII-C of the Constitution circumscribes the relevant powers of the

Comelec this wise: SEC. 5. The enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, may be supervised or regulated by the Commission during the election period for the purpose of ensuring free, orderly, and honest elections. Section 41 of the Election Code of 1978 pertinently reads as follows: SEC. 41. Regulation of election propaganda through mass media. (a) The Commission shall promulgate rules and regulations regarding the sale of air time for political purposes during the campaign period to insure that time equal as to duration and quality is available to all candidates for the same office or political parties, groups or aggrupations at the same rates or given free of charge; that such rates are reasonable and not higher than those charged other buyers or users of air time for non-political purposes; that the provisions of this Code regarding the limitation of expenditures by candidates and contributions by private persons and certain classes of corporations, entities and institutions are effectively enforced; that said radio broadcasting and television stations shall not be allowed to schedule any program or permit any sponsor to manifestly favor or oppose any candidate or political party, group or aggrupation by unduly or repeatedly referring to or including said candidate and/or political party, group or aggrupation respecting, however in all instances the right of said stations to broadcast accounts of significant or newsworthy events and views on matters of public interest. Sections 7 and 8 of Comelec Resolution No. 1468 read thus: SEC. 7. Free air time. Any radio broadcasting or television station that grants free of charge the use of air time to any supporter, oppositors political party, group or aggritpution shall also give similar air time free of charge to other supporters, oppositors, political party group or aggrupations except when such use of air -time is part of a news program or coverage involving a newsworthy event. A radio, television station giving air time free of charge to any supporter, oppositor, political party/group for campaign purposes shall inform the Commission of such fact within two days from the use of such free time. SEC. 8. Failure to agree on equal time. In case the supporter, oppositor, political party group and the radio-television station, despite mediation by the Ministry of Public Information, cannot agree on the equal time to be sold or given free, the controversy shall be referred to the Commission whose decision on the matter shall be final and immediately executory. To begin with, We cannot agree with the restrictive literal interpretation the Solicitor General would want to give to the "free orderly and honest elections" clause of Section 5, Article XII- C above-quoted. Government Counsel posits that the said clause refers exclusively to the manner in which the elections are conducted, that is to say, with the manner in which the voters are supposed to be allowed to vote. Perhaps, such a theory may hold insofar as ordinary elections of officials are concerned. But the Court views the provision as applicable also to plebiscites, particularly one relative to constitutional amendments. Be it borne in mind that it has been one of the most steadfast rulings of this Court in connection with such plebiscites that it is indispensable that they be properly characterized to be fair submission by which is meant that the voters must of necessity have had adequate opportunity, in the light of conventional wisdom, to cast their votes with sufficient understanding of what they are voting on. We are of the firm conviction that the charter's reference to honest elections connotes fair submission in a plebiscite. It cannot be otherwise, for then the importance of suffrage for the election of officials would be more significantly valued than voting on the ratification of the constitution or any amendment thereof. We cannot yield to such an unorthodox constitutional concept that relegates the fundamental law of the land which is the source of all powers of the government to a level less valued than the men who would run the

same. When a voter either gives or denies his assent to a change of the existing charter of his rights and liberties and the existing governmental form as well as the powers of those who are to govern him, he virtually contributes his little grain of sand to the building of the nation and renders his share in shaping the future of its people, including himself, his family and those to come after them. Indeed, nothing can be of more transcerdental importance than to vote in a constitutional plebiscite. In consequence of the foregoing considerations, We opine and so hold that the provisions of all election laws regulating propaganda through the mass media, for example, Section 41 of the Election Code of 1978, must be deemed applicable to plebiscites. Therefore, it is the duty of the Comelec to see to it that the sale of air time by TV and radio stations insures that time equal as to duration and quality is available to all candidates for the same office or political parties, groups or aggrupations at the same rates or given free of charge. We cannot share the Solicitor General's submission that the above view would subvert or curtail correspondingly the freedom of speech and of the press to which the TV and radio station owners are entitled. Rather, it is Our considered opinion and We so hold that if such be the effect of the Comelec regulations, it is because they must have been contemplated to precisely constitute an exception to freedom of speech and press clause, on account of considerations more paramount for the general welfare and public interest, which exceptions after all would operate only during limited periods, that is, during the duration of the election Campaign fixed in the charter itself and/or by law. The Solicitor General points, however, to the explicit proviso in Section 41 to the effect that the equal-time-equal-space privilege must "respect, in all instances the right of said stations to broadcast accounts of significant or newsworthy events and views on matters of public interest", and suggests that the TV and radio stations may not be blamed for considering the "Pulong-Pulong sa Pangulo" as coming within said proviso. In other words, it is contended that such choice by them may not then be subjected to the equal time equal space regulations. On the other hand, counsel for petitioner maintains that it is not fair to deem the President's "Pulong-Pulong" as a "significant and noteworthy (an) events and views on matters of public interest" just because the President campaigned for "Yes" votes, while a "Pulong-Pulong" by those who would appeal for "No" votes cannot be similarly characterized. Our holding in respect to such conflicting contentions is that, while it may not be exactly proper to say, as the Comelec resolution in question puts it, that "(u)nder our Constitution, the President-Prime Minister has no counterpart, not even the Opposition still waiting in the uncertain wings of power", it is undeniable and but natural that the head of state of every country in the world must from the very nature of his position, be accorded certain privileges not equally available to those who are opposed to him in the sense that, since the head of state has the grave and tremendous responsibility of planning and implementing the plan of government itself, either by virtue of the popular mandate given to him under the corresponding provisions of the Constitution and the laws or any other duly recognized grant of power and authority, the opposition cannot be placed at par with him, since logically the opposition can only fiscalize the administration and punctualize its errors and shortcomings to the end that when the duly scheduled time for the people to exercise their inalienable power to make a better choice, the opposition may have the chance to make them accept the alternative they can offer. Therefore, when the head of state is afforded the opportunity or when he feels it incumbent upon him to communicate and dialogue with the people on any matter affecting the plan of government or any other matter of public interest, no office or entity of the government is obliged to give the opposition the same facilities by which its contrary views may be ventilated. lf the opposition leaders feel any sense of responsibility in the premises to counter the administration, it is up to them and they are free to avail of their own resources to accomplish their purpose. But surely, it is not for the administration to hand them on a silver platter the weapon they need. We are not aware that there is any existing system of government anywhere in the world which is mandated to be so accommodating and generous to the opponents of the current administrators of the national affairs.

In instances where the head of state is at the same time the president of the political party that is in power, it does not necessarily follow that he speaks with two voices when he dialogues with the governed. Unquestionably, there are matters of vital public interest wherein partisan considerations could in some degree be involved, but then such partisan interest would be purely secondary. The President/Prime Minister of the Philippines is the political head of all the people. His is the sacred responsibility to protect and defend the security of all the people, the stability of the government and the integrity of the national territory, not only for the tenure to which he has been elected but for all times. When, as in the instant situation, he deems it warranted by the circumstances to present to them a plan of government which includes the modification of the existing structure of government together with its concomitant allocation of governmental powers, it is not only his right but his duty to take the people directly into his confidence and impart to them to the fullest measure of his capacity and by all available adequate means the reasons therefor and the corrollarily advantages thereof to their welfare. The opposition, if it opines otherwise, has naturally the indisputable right to make every effort to thwart his objective. But, surely, this is far from saying that it is the duty of the administration to generously grant to them the means to wage their campaign against it. The long and short of the foregoing is that it is not true that in speaking as he did in the "Pulong-Pulong sa Pangulo" on March 21, 1981, he spoke not only as President-Prime Minister but also as head of the KBL, the political party now in power. It was in the former capacity that he did so. If in any way, what he said would induce the people to accept the proposed amendments, his exposition of the advantages thereof was not to promote the interest of that party but to improve the quality of the government thereby to enable him or anyone who may be chosen by the people to take his place to better serve the welfare not only of the KBL but of all of us, including those who are minded, for reasons of their own, to oppose the amendments. In any event, petitioner has failed to persuade Us that the grant of the prayer in its petition compellingly pertains to it under the provisions of the Constitution, the Election Code of 1978 and the general resolutions and regulations of respondent Comelec regarding equal opportunity among contending political parties, groups, aggrupations or individuals. The Comelec has indeed the power to supervise and regulate the mass media in such respect, but such authority arises only when there is a showing that any sector or member of the media has denied to any party or person the right to which it or he is entitled. What is more, there are other political parties similarly situated as petitioner. To grant to petitioner what it wants, it must necessarily follow that such other parties should also be granted. As already indicated earlier, that would be too much to expect from the media that has also its own right to earn its wherewithal. But most importantly, the Comelec is not supposed to dictate to the media when its prerogatives in the premises is not invoked in the proper manner, that is, after denial to the petitioner by the media is shown. And then, it is an inalienable right of the sector or member of the media concerned to be duly heard as an indispensable party. Thus, for being beyond what the charter, the laws and pertinent Comelec regulations contemplate, for being more than what the opposition is duly entitled vis-a-vis the duty, obligation and/or privilege inherent in the head of state to directly dialogue with the sovereign people when the occasion demands, for being impractical under prevailing circumstances, and for its failure to join in the instant petition indispensable parties, thereby depriving the Court of jurisdiction to act, and for these alone among other reasons which there is hardly time to state herein, the prayer in the instant petition cannot be granted. WHEREFORE, the appeal herein is dismissed, without costs. Aquino, Fernandez and Guerrero, JJ., concur. Makasiar, J., concurs in the result. Concepcion Jr., J., took no part.

Abad Santos, J., is on leave.

EN BANC G.R. Nos. L-50581-50617 January 30, 1982 RUFINO V. NUEZ petitioner, vs.SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

FERNANDO, C.J.: In categorical and explicit language, the Constitution provided for but did not create a special Court, the Sandiganbayan with "jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law." 1 It came into existence with the issuance in 1978 of a Presidential Decree. 2 Even under the 1935 Constitution, to be precise, in 1955, an anti-graft statute was passed, 3 to be supplemented five years later by another act, 4 the validity of which was upheld in Morfe v. Mutuc, 5 a 1968 decision. As set forth in the opinion of the Court: "Nothing can be clearer therefore than that the AntiGraft Act of 1960 like the earlier statute was precisely aimed at curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. It is intended to further promote morality in public administration. A public office must indeed be a public trust. Nobody can cavil at its objective; the goal to be pursued commands the assent of all. The conditions then prevailing called for norms of such character. The times demanded such a remedial device." 6 It should occasion no surprise, therefore, why the 1971 Constitutional Convention, with full awareness of the continuity need to combat the evils of graft and corruption, included the above-cited provision. Petitioner in this certiorari and prohibition proceeding assails the validity of the Presidential Decree creating the Sandiganbayan, He was accused before such respondent Court of estafa through falsification of public and commercial documents committed in connivance with his other co-accused, all public officials, in several cases. 7 The informations were filed respectively on February 21 and March 26, 1979. Thereafter, on May 15 of that year, upon being arraigned, he filed a motion to quash on constitutional and jurisdictional grounds. 8 A week later. respondent Court denied such motion. 9 There was a motion for reconsideration filed the next day; it met the same fate. 10 Hence this petition for certiorari and prohibition It is the claim of petitioner that Presidential Decree No. 1486, as amended, creating the respondent Court is violative of the due process, 11 equal protection, 12 and ex post facto 13 clauses of the Constitution. 14 The overriding concern, made manifest in the Constitution itself, to cope more effectively with dishonesty and abuse of trust in the public service whether committed by government officials or not, with the essential cooperation of the private citizens with whom they deal, cannot of itself justify any departure from or disregard of constitutional rights. That is beyond question. With due recognition, however, of the vigor and persistence of counsel of petitioner 15 in his pleadings butressed by scholarly and diligent research, the Court, equally aided in the study of the issues raised by the exhaustive memorandum of the Solicitor General, 16 is of the view that the invalidity of Presidential Decree No, 1486 as amended, creating respondent Court has not been demonstrated. The petition then cannot be granted. The unconstitutionality of such Decree cannot be adjudged. 1. It is to be made clear that the power of the then President and Prime Minister

Ferdinand E. Marcos to create the Sandiganbayan in 1978 is not challenged in this proceeding. While such competence under the 1973 Constitution contemplated that such an act should come from the National Assembly, the 1976 Amendments made clear that he as incumbent President "shall continue to exercise legislative powers until martial law shall have been lifted. " 17 Thus, there is an affirmation of the ruling of this Court in Aquino Jr. v. Commission on Elections 18 decided in 1975. In the language of the ponente, Justice Makasiar, it dissipated "all doubts as to the legality of such law-making authority by the President during the period of Martial Law, ... . 19 As the opinion went on to state: "It is not a grant of authority to legislate, but a recognition of such power as already existing in favor of the incumbent President during the period of Martial Law. " 20 2. Petitioner in his memorandum invokes the guarantee of equal protection in seeking to nullify Presidential Decree No. 1486. What does it signify? To quote from J. M. Tuason & Co. v. Land Tenure Administration: 21 "The Ideal situation is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity which is of the very essence of the Idea of law." 22 There is recognition, however, in the opinion that what in fact exists "cannot approximate the Ideal. Nor is the law susceptible to the reproach that it does not take into account the realities of the situation. The constitutional guarantee then is not to be given a meaning that disregards what is, what does in fact exist .To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. " 23 Classification is thus not ruled out, it being sufficient to quote from the Tuason decision anew "that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 24 3. The premise underlying petitioner's contention on this point is set forth in his memorandum thus: " 1. The Sandiganbayan proceedings violates petitioner's right to equal protection, because - appeal as a matter of right became minimized into a mere matter of discretion; - appeal likewise was shrunk and limited only to questions of law, excluding a review of the facts and trial evidence; and - there is only one chance to appeal conviction, by certiorari to the Supreme Court, instead of the traditional two chances; while all other estafa indictees are entitled to appeal as a matter of right covering both law and facts and to two appellate courts, i.e., first to the Court of Appeals and thereafter to the Supreme Court." 25 ,that is hardly convincing, considering that the classification satisfies the test announced by this Court through Justice Laurel in People v. Vera 26 requiring that it "must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. 27 To repeat, the Constitution specifically makes mention of the creation of a special court, the Sandiganbayan 4 precisely in response to a problem, the urgency of which cannot be denied, namely, dishonesty in the public service. It follows that those who may thereafter be tried by such court ought to have been aware as far back as January 17, 1973, when the present Constitution came into force, that a different procedure for the accused therein, whether a private citizen as petitioner is or a public official, is not necessarily offensive to the equal protection clause of the Constitution. Petitioner, moreover, cannot be unaware of the ruling of this Court in Co Chiong v. Cuaderno 28 a 1949 decision, that the general guarantees of the Bill of Rights, included among which are the due process of law and equal protection clauses must "give way to [a] specific provision, " in that decision, one reserving to "Filipino citizens of the operation of public services or utilities." 29 The scope of such a principle is not to be constricted. It is certainly broad enough to cover the instant situation.

4. The contention that the challenged Presidential Decree is contrary to the ex post facto provision of the Constitution is similarly premised on the allegation that "petitioner's right of appeal is being diluted or eroded efficacy wise ... ." 30 A more searching scrutiny of its rationale would demonstrate the lack of permisiveness of such an argument. The Kay Villegas Kami 31 decision promulgated in 1970, cited by petitioner, supplies the most recent and binding pronouncement on the matter. To quote from the ponencia of Justice Makasiar: "An ex post facto law is one which: (1) makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) alters the legal rules of evidences, and authorizes conviction upon less or different testimony . than the law required at the time of the commission to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful, and (6) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty." 32 Even the most careful scrutiny of the above definition fails to sustain the claim of petitioner. The "lawful protection" to which an accused "has become entitled" is qualified, not given a broad scope. It hardly can be argued that the mode of procedure provided for in the statutory right to appeal is therein embraced. This is hardly a controversial matter. This Court has spoken in no uncertain terms. In People v. Vilo 33 a 1949 decision, speaking through the then Justice, later Chief Justice Paras, it made clear that seven of the nine Justices then composing this Court, excepting only the ponente himself and the late Justice Perfecto, were of the opinion that Section 9 of the Judiciary Act of 1948, doing away with the requirement of unanimity under Article 47 of the Revised Penal Code with eight votes sufficing for the imposition of the death sentence, does not suffer from any constitutional infirmity. For them its applicability to crimes committed before its enactment would not make the law ex post facto. 5. It may not be amiss to pursue the subject further. The first authoritative exposition of what is prohibited by the ex post facto clause is found in Mekin v. Wolfe, 34 decided in 1903. Thus: "An ex post facto law has been defined as one - (a) Which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or (b) Which aggravates a crime or makes it greater than it was when committed; or (c) Which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or (d) Which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. " 35 There is relevance to the next paragraph of the opinion of Justice Cooper: "The case clearly does not come within this definition, nor can it be seen in what way the act in question alters the situation of petitioner to his disadvantage. It gives him, as well as the Government, the benefit of the appeal, and is intended First Instance may commit error in his favor and wrongfully discharge him appears to be the only foundation for the claim. A person can have no vested right in such a possibility.
36

6. Mekin v. Wolfe is traceable to Calder v. Bull, 37 a 1798 decision of the United States Supreme Court. Even the very language as to what falls with the category of this provision is well-nigh Identical. Thus: "I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. Ist. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive." 38 The opinion of Justice Chase who spoke for the United States Supreme Court went on to state: "The expressions 'ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors. The celebrated and judicious Sir William Blackstone in his commentaries,

considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principle of government. " 39 7. Petitioner relies on Thompson v. Utaha. 40 As it was decided by the American Supreme Court in April of 1898 - the very same year when the Treaty of Paris, by virtue of which, American sovereignty over the Philippines was acquired - it is understandable why he did so. Certainly, the exhaustive opinion of the first Justice Harlan, as was mentioned by an author, has a cutting edge, but it cuts both ways. It also renders clear why the obstacles to declaring unconstitutional the challenged Presidential Decree are well-nigh insuperable. After a review of the previous pronouncements of the American Supreme Court on this subject, Justice Harlan made this realistic appraisal: "The difficulty is not so much as to the soundness of the general rule that an accused has no vested right in particular modes of procedure as in determining whether particular statutes by their operation take from an accused any right that was regarded, at the time of the adoption of the constitution, as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him." 41 An 1894 decision of the American Supreme Court, Duncan v. Missouri 42 was also cited by petitioner, The opinion of the then Chief Justice Fuller, speaking for the Court, is to the same effect. It was categorically stated that "the prescribing of different modes of procedure and the abolition of courts and the creation of new ones, leaving untouched all the substantial protections with which the existing laws surrounds the person accused of crime, are not considered within the constitutional inhibition." 43 8. Even from the standpoint then of the American decisions relied upon, it cannot be successfully argued that there is a dilution of the right to appeal. Admittedly under Presidential Decree No. 1486, there is no recourse to the Court of Appeals, the review coming from this Court. The test as to whether the ex post facto clause is disregarded, in the language of Justice Harlan in the just-cited Thompson v. Utah decision taking "from an accused any right that was regarded, at the time of the adoption of the constitution as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him." The crucial words are "vital for the protection of life and liberty" of a defendant in a criminal case. Would the omission of the Court of Appeals as an intermediate tribunal deprive petitioner of a right vital to the protection of his liberty? The answer must be in the negative. In the first place, his innocence or guilt is passed upon by the three-judge court of a division of respondent Court. Moreover, a unanimous vote is required, failing which "the Presiding Justice shall designate two other justices from among the members of the Court to sit temporarily with them, forming a division of five justices, and the concurrence of a majority of such division shall be necessary for rendering judgment. " 44 Then if convicted, this Court has the duty if he seeks a review to see whether any error of law was committed to justify a reversal of the judgment. Petitioner makes much, perhaps excessively so as is the wont of advocates, of the fact that there is no review of the facts. What Cannot be too sufficiently stressed is that this Court in determining whether or not to give due course to the petition for review must be convinced that the constitutional presumption of innocence 45 has been overcome. In that sense, it cannot be said that on the appellate level there is no way of scrutinizing whether the quantum of evidence required for a finding of guilt has been satisfied. The standard as to when there is proof of such weight to justify a conviction is set forth in People v. Dramayo. 46 Thus: "Accusation is not, according to the fundamental law, as synonymous with guilt. It is incumbent on the prosecution to demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard, this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense, is offered by the accused. Only if the judge below and thereafter the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway

judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged: that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty." 47 This Court has repeatedly reversed convictions on a showing that this fundamental and basic right to De presumed innocent has been disregarded. 48 It does seem farfetched and highly unrealistic to conclude that the omission of the Court of Appeals as a reviewing authority results in the loss "vital protection" of liberty. 9. The argument based on denial of due process has much less to recommend it. In the exhaustive forty-two page memorandum of petitioner, only four and a half pages were devoted to its discussion. There is the allegation of lack of fairness. Much is made of what is characterized as "the tenor and thrust" of the leading American Supreme Court decision, Snyder v. Massachusetts. 49 Again this citation cuts both ways. With his usual felicitous choice of words, Justice Cardozo, who penned the opinion, emphasized: "The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also, The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." 50 What is required for compliance with the due process mandate in criminal proceedings? In Arnault v. Pecson, 51 this Court with Justice Tuason as ponente, succinctly Identified it with "a fair and impartial trial and reasonable opportunity for the preparation of defense." 52 In criminal proceedings then, due process is satisfied if the accused is "informed as to why he is proceeded against and what charge he has to meet, with his conviction being made to rest on evidence that is not tainted with falsity after full opportunity for him to rebut it and the sentence being imposed in accordance with a valid law. It is assumed, of course, that the court that rendered the decision is one of competent jurisdiction." 53 The above formulation is a reiteration of what was decided by the American Supreme Court in a case of Philippine origin, Ong Chang Wing v. United States 54 decided during the period of American rule, 1910 to be precise. Thus: "This court has had frequent occasion to consider the requirements of due process of law as applied to criminal procedure, and, generally speaking, it may be said that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded within the authority of a constitutional law, then he has had due process of law." 55 10. This Court holds that petitioner has been unable to make a case calling for a declaration of unconstitutionality of Presidential Decree No. 1486 as amended by Presidential Decree No. 1606. The decision does not go as far as passing on any question not affecting the right of petitioner to a trial with all the safeguards of the Constitution. It is true that other Sections of the Decree could have been worded 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 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. Nor should there be any doubt either that a review by certiorari of a decision of conviction by the Sandiganbayan calls for strict observance of the constitutional presumption of innocence. WHEREFORE, the petition is dismissed. No costs. Aquino, Guerrero, Abad Santos, Melencio-Herrera, Plana and Escolin, JJ., concur. Concepcion, Jr. and Ericta, JJ., took no part. Fernandez, J., concurs and dissent

Separate Opinions

BARREDO, J., concuring: I have read with great care the concurring and dissenting opinion of our learned colleague, Mr. Justice Makasiar, and I fully agree with the view that P.D. 1606 has unduly and improperly placed the Sandiganbayan on a higher plane than the Supreme Court insofar as the matter of automatic releases of appropriations is concerned, which definitely should not be the case. I must say emphatically that if such a provision was conceived to guarantee the Sandigan's independence, it is certainly unwise to assume that the Supreme Court's independence is unworthy of similar protection. Strong as my feeling in this respect is, I am aware that my objection to the provision in question is not ground enough to render the same unconstitutional. In expressing myself as I do, I am just adding my little voice of protest in order that hopefully those concerned may hear it loud and clear and thus give the Supreme Court its deserved superior status over the Sandiganbayan. I regret, however, I cannot agree with the constitutional structures expressed by Justice Makasiar. I am more inclined to agree with our honored and distinguished Chief Justice, whose learning in constitutional law is duly respected here and abroad, that the arguments against the constitutionality of P.D. 1606 advanced by its critics lack sufficient persuavity. It should not be surprising nor unusual that the composition of and procedure in the Sandiganbayan should be designed and allowed to be different from the ordinary courts. Constitutionally speaking, I view the Sandiganbayan as sui generis in the judicial structure designed by the makers of the 1971 Constitution. To be particularly noted must be the fact that the mandate of the Constitution that the National Assembly "shall create", it is not under the Article on the Judiciary (Article X) but under the article on Accountability of Public Officers. More, the Constitution ordains it to be "a special court." To my mind, such "special" character endowed to the Sandiganbayan carries with it certain concomittants which compel that it should be treated differently from the ordinary courts. Of course, as a court it exercises judicial power, and so under Section 1 of Article X, it must be subordinate to the Supreme Court. And in this respect, I agree with Justice Makasiar that the rule-making power granted to it by P.D. 1606 must of constitutional necessity be understood as signifying that any rule it may promulgate cannot have force and effect unless approved by the Supreme Court, as if they have originated therefrom. Section 5(5) of the Constitution empowers the Supreme Court to promulgate rules concerning pleading, practice and procedure in all courts, and the Sandiganbayan is one of those courts, "special" as it may be. I am of the considered opinion, nonetheless, that the special composition of the Sandiganbayan and the special procedure of appeal provided for it in P.D. 1606 does not infringe the constitutional injunction against ex-post facto laws. The creation of a special court to take cognizance of, try and decide crimes already committed is not a constitutional abnormality. Otherwise, there would be chaos in the prosecution of offenses which in the public interest must be dealt with more expeditiously in order to curtail any fast surging tide of evil-doing against the social order. Since the Sandiganbayan is a collegiate trial court, it is obviously improper to make appeals therefrom appealable to another collegiate court with the same number of judges composing it. We must bear in mind that the Sandiganbayan's primary and primordial reason for being is to insure the people's faith and confidence in our public officers more than it used to be. We have only to recall that the activism and restlessness in the later '60's and the early '70's particularly of the youth who are always concerned with the future of the country were caused by their conviction that graft and corruption was already intolerably pervasive in the government and naturally they demanded and expected effective and faster and more expeditious remedies. Thus, the

Tanodbayan or Ombudsman was conceived and as its necessary counterpart, the Sandiganbayan. It must be against the backdrop of recent historical events that I feel We must view the Sandiganbayan. At this point, I must emphasize that P.D. 1606 is a legislative measure, and the rule-making power of the Supreme Court is not insulated by the Charter against legislature's attribute of alteration, amendment or repeal. Indeed, it is the Supreme Court that cannot modify or amend, much less repeal, a rule of court originated by the legislative power. Accordingly, the method of appeal provided by P.D. 1606 from decisions of the Sandiganbayan cannot be unconstitutional. If a new or special court can be legitimately created to try offenses already committed, like the People's Court of Collaboration times, I cannot see how the new procedure of appeal from such courts can be faulted as violative of the Charter. True, in criminal cases, the Constitution mandates that the guilt of the accused must be proved beyond reasonable doubt. But once the Sandiganbayan makes such a pronouncement, the constitutional requirement is complied with. That the Supreme Court may review the decisions of the Sandiganbayan only on questions of law does not, in my opinion, alter the fact that the conviction of the accused from the factual point of view was beyond reasonable doubt, as long as the evidence relied upon by the Sandiganbayan in arriving at such conclusion is substantial. Since the creation of the Court of Appeals, the Supreme Court's power of review over decisions of the former even in criminal cases has been limited statutorily or by the rules only to legal questions. We have never been supposed to exercise the power to reweigh the evidence but only to determine its substantiality. If that was proper and legal, and no one has yet been heard to say the contrary, why should We wonder about the method of review of the decisions of the Sandiganbayan under P.D. 1606? With all due respect to the observation of Justice Makasiar, I believe that the accused has a better guarantee of a real and full consideration of the evidence and the determination of the facts where there are three judges actually seeing and observing the demeanor and conduct of the witnesses. It is Our constant jurisprudence that the appellate courts should rely on the evaluation of the evidence by the trial judges, except in cases where pivotal points are shown to have been overlooked by them. With more reason should this rule apply to the review of the decision of a collegiate trial court. Moreover, when the Court of Appeals passes on an appeal in a criminal cases, it has only the records to rely on, and yet the Supreme Court has no power to reverse its findings of fact, with only the usual exceptions already known to all lawyers and judges. I strongly believe that the review of the decisions of the Sandiganbayan, whose three justices have actually seen and observed the witnesses as provided for in P.D. 1606 is a more iron-clad guarantee that no person accused before such special court will ever be finally convicted without his guilt appearing beyond reasonable doubt as mandated by the Constitution. MAKASIAR, J., concurring and dissenting: Some provisions in the Sandiganbayan violate not only the constitutional guarantees of due process as wen as equal protection of the law and against the enactment of ex post facto laws, but also the constitutional provisions on the power of supervision of the Supreme Court over inferior courts as well as its rule-making authority. All the relevant cases on due process, equal protection of the law and ex post facto laws, have been cited by the petitioner, the Solicitor General, and the majority opinion; hence, there is no need to repeat them here. It should be noted that petitioner does not challenge the constitutionality of P.D. No. 1606 on the ground that it impairs the rule-making authority of the Supreme Court and its power of supervision over inferior courts. It should likewise be emphasized that in the opinion of the Writer, the provisions of P.D. No. 1606 which he does not impugn, remain valid and complete as a statute and

therefore can be given effect minus the challenged portions, which are separable from the valid provisions. The basic caveat for the embattled citizen is obsta principiis - resist from the very beginning any attempt to assault his constitutional liberties. I PARAGRAPH 3, SECTION 7 OF P.D. NO. 1606 DENIES PETITIONER DUE PROCESS AND EQUAL PROTECTION OF THE LAW. 1. Persons who are charged with estafa or malversation of funds not belonging to the government or any of its instrumentalities or agencies are guaranteed the right to appeal to two appellate courts - first, to the Court of Appeals, and thereafter to the Supreme Court. Estafa and malversation of private funds are on the same category as graft and corruption committed by public officers, who, under the Decree creating the Sandiganbayan. are only allowed one appeal - to the Supreme Court (par. 3, Sec. 7, P.D. No. 1606). The fact that the Sandiganbayan is a collegiate trial court does not generate any substantial distinction to validate this invidious discrimination Three judges sitting on the same case does not ensure a quality of justice better than that meted out by a trial court presided by one judge. The ultimate decisive factors are the intellectual competence, industry and integrity of the trial judge. But a review by two appellate tribunals of the same case certainly ensures better justice to the accused and to the people. It should be stressed that the Constitution merely authorizes the law-making authority to create the Sandiganbayan with a specific limited jurisdiction only over graft and corruption committed by officers and employees of the government, government instrumentalities and government-owned and -controlled corporations. The Constitution does not authorize the lawmaker to limit the right of appeal of the accused convicted by the Sandiganbayan to only the Supreme Court. The Bill of Rights remains as restrictions on the lawmaker in creating the Sandiganbayan pursuant to the constitutional directive. It is also clear that paragraph 3, Section 7 of P.D. No. 1606 trenches upon the due process clause of the Constitution, because the right to appeal to the Court of Appeals and thereafter to the Supreme Court was already secured under Sections 17 and 29 of the Judiciary Act of 1948, otherwise known as R.A. No. 296, as amended, and therefore also already part of procedural due process to which the petitioner was entitled at the time of the alleged commission of the crime charged against him. (Marcos vs. Cruz, 68 Phil. 96, 104 [1939]; People vs. Moreno, 77 Phil. 548, 555; People vs. Casiano, 1 SCRA 478 [1961]; People vs. Sierra, 46 SCRA 717; Fernando, Phil. Constitution, 1974 ed., pp. 674-675). This is also reiterated in Our discussion hereunder concerning the violation of the constitutional prohibition against the passage of ex post facto laws. 2. Then again, paragraph 3 of Section 7 of P.D. No. 1606, by providing that the decisions of the Sandiganbayan can only be reviewed by the Supreme Court through certiorari, likewise limits the reviewing power of the Supreme Court only to question of jurisdiction or grave abuse of discretion, and not questions of fact nor findings or conclusions of the trial court. In other criminal cases involving offenses not as serious as graft and corruption, all questions of fact and of law are reviewed, first by the Court of Appeals, and then by the Supreme Court. To repeat, there is greater guarantee of justice in criminal cases when the trial court's judgment is subject to review by two appellate tribunals, which can appraise the evidence and the law with greater objectivity, detachment and impartiality unaffected as they are by views and prejudices that may be engendered during the trial. 3. Limiting the power of review by the Supreme Court of convictions by the Sandiganbayan only to issues of jurisdiction or grave abuse of discretion, likewise violates the constitutional presumption of innocence of the accused, which presumption can only be overcome by proof beyond reasonable doubt (See. 19, Art. IV, 1973 Constitution).

Even if in certiorari proceedings, the Supreme Court, to determine whether the trial court gravely abused its discretion, can inquire into whether the judgment of the Sandiganbayan is supported by the substantial evidence, the presumption of innocence is still violated; because proof beyond reasonable doubt cannot be equated with substantial evidence. Because the Supreme Court under P.D. No. 1606 is precluded from reviewing questions of fact and the evidence submitted before the Sandiganbayan, the Supreme Court is thereby deprived of the constitutional power to determine whether the guilt of the accused has been established by proof beyond reasonable doubt - by proof generating moral certainty as to his culpability -- and therefore subverts the constitutional presumption of innocence in his favor which is enjoyed by all other defendants in other criminal cases, including defendants accused of only light felonies, which are less serious than graft and corruption. 4. Furthermore, the Sandiganbayan is composed of a presiding Justice and 8 associate Justices, sitting in three divisions of 3 Justices each (Sec. 3, P.D. No. 1606). Under Section 5 thereof, the unanimous vote of three Justices in a division shall be necessary for the pronouncement of the judgment. In the event that the three Justices do not reach a unanimous vote, the Presiding Justice shall designate two other Justices from among the members of the Court to sit temporarily with them, forming a division of five Justices, and the concurrence of the majority of such division shall be necessary for rendering judgment. At present, there are only 6 members of the Sandiganbayan or two divisions actually operating. Consequently, when a member of the Division dissents, two other members may be designated by the Presiding Justice to sit temporarily with the Division to constitute a special division of five members. The fact that there are only 6 members now composing the Sandiganbayan limits the choice of the Presiding Justice to only three, instead of 6 members from whom to select the two other Justices to compose a special division of five in case a member of the division dissents. This situation patently diminishes to an appreciable degree the chances of an accused for an acquittal. Applied to the petitioner, Section 5 of P.D. No. 1606 denies him the equal protection of the law as against those who will be prosecuted when three more members of the Sandiganbayan will be appointed to complete its membership of nine. P.D. No. 1606 therefore denies the accused advantages and privileges accorded to other defendants indicted before other trial courts. 5. Section 1 of P.D. No. 1606 further displays such arbitrary classification; because it places expressly the Sandiganbayan on "the same level as the Court of Appeals." As heretofore stated, the Sandiganbayan is a collegiate trial court and not an appellate court; its jurisdiction is purely limited to criminal and civil cases involving graft and corruption as well as violation of the prohibited drug law committed by public officers and employees of the government, its instrumentalities and government-owned or -controlled corporations. The Court of Appeals is an appellate tribunal exercising appellate jurisdiction over all cases - criminal cases, civil cases, special civil actions, special proceedings, and administrative cases appealable from the trial courts or quasijudicial bodies. The disparity between the Court of Appeals and the Sandiganbayan is too patent to require extended demonstration. 6. Even the Supreme Court is not spared from such odious discrimination as it is being down-graded by Section 14 of P.D. No. 1606, which effectively makes the Sandiganbayan superior to the Supreme Court; because said Section 14 expressly provides that "the appropriation for the Sandiganbayan shall be automatically released in accordance with the schedule submitted by the Sandiganbayan" (emphasis supplied). There is no such provision in any law or in the. annual appropriations act in favor of the Supreme Court. Under the 1982 Appropriations Act, the funds for the Supreme Court and the entire Judiciary can only be released by the Budget Ministry upon request therefor by the Supreme Court. Sometimes compliance with such request is hampered by bureaucratic procedures. Such discrimination against the Supreme Court - the highest tribunal of the land and the only other Branch of our modified parliamentary-presidential government the first Branch being constituted by the merger or union of the Executive and the Batasang Pambansa - emphasizes the peril to the independence of the Judiciary, whose

operations can be jeopardized and the administration of justice consequently obstructed or impeded by the delay or refusal on the part of the Budget Ministry to release the needed funds for the operation of the courts. II P.D. NO. 1606 VIOLATES THE GUARANTEE AGAINST EX POST FACTO LAWS 1. WE ruled in Kay Villegas Kami (Oct. 22, 1970, 35 SCRA 429) that an ex post facto law is one which alters the rules of evidence and authorizes conviction upon less testimony than the law required at the time the crime was committed, or deprives a person accused of a crime of some lawful protection to which he has become entitled. The indictment against herein petitioner accused him of graft and corruption committed "from July 20, 1977 up to and including January 12, 1978" (Annex A, p. 24, rec.), long before the creation of the Sandiganbayan on December 10, 1978 by P.D. No. 1606 which expressly repealed P.D. No. 1486, the original charter of the Sandiganbayan promulgated on June 11, 1978. As heretofore stated, before the creation of the Sandiganbayan on December 10, 1978, all persons accused of malversation of public funds or graft and corruption and estafa were entitled to a review of a trial court's judgment of conviction by the Court of Appeals on all questions of fact and law, and thereafter by the Supreme Court also on both questions of fact and law. This right to a review of the judgment of conviction by two appellate tribunals on both factual and legal issues, was already part of the constitutional right of due process enjoyed by the petitioner in 1977. This vital right of the accused has been taken away on December 10, 1978 by P.D. No. 1606, thus placing herein petitioner under a great disadvantage for crimes he allegedly committed prior to 1978. 2. As a necessary consequence, review by certiorari impairs the constitutional presumption of innocence in favor of the accused, which requires proof beyond reasonable doubt to rebut the presumption (Sec. 19, Art. IV, 1973 Constitution). P.D. No. 1606 thus in effect reduces the quality and quantity of the evidence requisite for a criminal conviction. The conviction of petitioner is thus facilitated or made easier by P.D. No. 1606, which was not so prior to its promulgation. The Sandiganbayan could not be likened to the People's Court exclusively trying cases against national security whose decisions were appealable directly only to the Supreme Court (Sec. 13, CA 682); because at the time the People's Court Act or C.A. No. 682 was enacted on September 25. 1945, the Court of Appeals was no longer existing then as it was abolished on March 10, 1945 by Executive Order No. 37 issued by President Sergio Osmena soon after the Liberation. Consequently, the People's Court Act could not provide for appeal to the Court of Appeals which was revived only on October 4, 1946 by R.A. No. 52. But even under Section 13 of the People's Court Act appeal to the Supreme Court is not limited to the review by certiorari. The Supreme Court can review all judgments of the People's Court both on questions of fact and of law. III SECTION 9 OF P.D. NO. 1606 CLASHES WITH THE CONSTITUTIONAL RULE-MAKING AUTHORITY OF THE SUPREME COURT Section 9 of P.D. No. 1606 authorizing the Sandiganbayan to promulgate its own rules of procedure without requiring the approval thereof by the Supreme Court, collides with the constitutional rule-making authority of the Supreme Court. to pro- promulgate rules of court for all courts of the land (par. 5, Sec. 5 of Art. X of the New Constitution). IV P.D. NO. 1606 SUBVERTS THE CONSTITUTIONAL POWER OF SUPERVISION OVER INFERIOR

COURTS INCLUDING THE SANDIGANBAYAN Section 10 of P.D. No. 1606 authorizing the Sandiganbayan to "administer its own internal affairs, to adopt such rules governing the constitution of its divisions, the allocation of cases among them and other matters relating to its business," without requiring the approval of the Supreme Court also contravenes the constitutional power of supervision over the Sandiganbayan as an inferior trial court. It cannot be disputed that the Sandiganbayan is an inferior court. 2. Likewise, Section 12 of P.D. No. 1606 vesting the Sandiganbayan with the power to select and appoint its personnel including a clerk of court and three deputy clerks of court and to remove them for cause without reserving to the Supreme Court the authority to approve or disapprove such appointments and to review such removals, aggravates the violation of the constitutional power of supervision of the Supreme Court over inferior courts. 3. Section 13 of P.D. 1606 also contravenes the constitutional power of the Supreme Court to supervise inferior courts; because said Section 13 requires the Sandiganbayan to submit an annual report directly to the President without coursing the same to the Supreme Court for review' and approval. That the Sandiganbayan is a specially favored court is further shown by the General Appropriations Act of 1982 which states that "all appropriations provided herein for the Sandiganbayan shall be administered solely by the Presiding Justice, ..." (par. 1, Sp. Provisions XXV on the Judiciary, p. 538, Gen. Appropriations Act of 1982). This particular provision impairs likewise the constitutional power of administrative supervision vested in the Supreme Court over all inferior courts (Sec. 6, Art. X, 1972 Constitution). It should be emphasized that the same General Appropriations Act of 1982 expressly provides that the disposition of all the appropriations for the Court of Appeals, Court of Tax Appeals, Circuit Criminal Courts, and the Court of Agrarian Relations is expressly subject to the approval of the Chief Justice of the Supreme Court (pp. 539-541, General Appropriations Act of 1982). The authority delegated expressly by the Constitution to the law-maker to create the Sandiganbayan does not include the authority to exempt the Sandiganbayan from the constitutional supervision of the Supreme Court. All the challenged provisions of P.D. No. 1606, namely, Sections 7 (par. 3), 9, 10, 12 and 13 are separable from the rest of its provisions without affecting the completeness thereof, and can therefore be declared unconstitutional without necessarily nullifying the entire P.D. No. 1606. The valid provisions amply determine what is to be done, who is to do it, and now to do it - the test for a complete and intelligible law (Barrameda vs. Moir, 25 Phil. 44; Edu vs. Ericta, Oct. 20, 1970, 35 SCRA 481, 496-497). As a matter of fact, Section 15 acknowledges such separability although under the jurisprudence it is merely a guide for and persuasive, but not necessarily binding on, the Supreme Court which can declare an entire law unconstitutional if the challenged portions are inseparable from the valid portions. Section1 of P.D. No. 1606 can be considered valid by just considering as not written therein the phrase "of the same level as the Court of Appeals. Section 5 of P.D. No. 1606 could likewise be validated by simply appointing three more members of the Sandiganbayan to complete its membership. Paragraph 3 of Section 7 of P.D. No. 1606 can be declared unconstitutional without affecting the completeness and validity of the remaining provisions of P.D. No. 1606; because in the absence of said Paragraph 3, Section 17 and 29 of the Judiciary Act of 1984, as amended,can apply. However, the challenged provisions, especially Sections 9, 10, 12 and 13 could remain valid provided it is understood that the powers delegated thereunder to the Sandiganbayan are deemed subject to the approval of the Supreme Court.

Separate Opinions BARREDO, J., concuring: I have read with great care the concurring and dissenting opinion of our learned colleague, Mr. Justice Makasiar, and I fully agree with the view that P.D. 1606 has unduly and improperly placed the Sandiganbayan on a higher plane than the Supreme Court insofar as the matter of automatic releases of appropriations is concerned, which definitely should not be the case. I must say emphatically that if such a provision was conceived to guarantee the Sandigan's independence, it is certainly unwise to assume that the Supreme Court's independence is unworthy of similar protection. Strong as my feeling in this respect is, I am aware that my objection to the provision in question is not ground enough to render the same unconstitutional. In expressing myself as I do, I am just adding my little voice of protest in order that hopefully those concerned may hear it loud and clear and thus give the Supreme Court its deserved superior status over the Sandiganbayan. I regret, however, I cannot agree with the constitutional structures expressed by Justice Makasiar. I am more inclined to agree with our honored and distinguished Chief Justice, whose learning in constitutional law is duly respected here and abroad, that the arguments against the constitutionality of P.D. 1606 advanced by its critics lack sufficient persuavity. It should not be surprising nor unusual that the composition of and procedure in the Sandiganbayan should be designed and allowed to be different from the ordinary courts. Constitutionally speaking, I view the Sandiganbayan as sui generis in the judicial structure designed by the makers of the 1971 Constitution. To be particularly noted must be the fact that the mandate of the Constitution that the National Assembly "shall create", it is not under the Article on the Judiciary (Article X) but under the article on Accountability of Public Officers. More, the Constitution ordains it to be "a special court." To my mind, such "special" character endowed to the Sandiganbayan carries with it certain concomittants which compel that it should be treated differently from the ordinary courts. Of course, as a court it exercises judicial power, and so under Section 1 of Article X, it must be subordinate to the Supreme Court. And in this respect, I agree with Justice Makasiar that the rule-making power granted to it by P.D. 1606 must of constitutional necessity be understood as signifying that any rule it may promulgate cannot have force and effect unless approved by the Supreme Court, as if they have originated therefrom. Section 5(5) of the Constitution empowers the Supreme Court to promulgate rules concerning pleading, practice and procedure in all courts, and the Sandiganbayan is one of those courts, "special" as it may be. I am of the considered opinion, nonetheless, that the special composition of the Sandiganbayan and the special procedure of appeal provided for it in P.D. 1606 does not infringe the constitutional injunction against ex-post facto laws. The creation of a special court to take cognizance of, try and decide crimes already committed is not a constitutional abnormality. Otherwise, there would be chaos in the prosecution of offenses which in the public interest must be dealt with more expeditiously in order to curtail any fast surging tide of evil-doing against the social order. Since the Sandiganbayan is a collegiate trial court, it is obviously improper to make appeals therefrom appealable to another collegiate court with the same number of judges composing it. We must bear in mind that the Sandiganbayan's primary and primordial reason for being is to insure the people's faith and confidence in our public officers more than it used to be. We have only to recall that the activism and restlessness in the later '60's and the early '70's particularly of the youth who are always concerned with the future of the country were caused by their conviction that graft and corruption was already intolerably pervasive in the government and naturally they demanded and expected effective and faster and more expeditious remedies. Thus, the Tanodbayan or Ombudsman was conceived and as its necessary counterpart, the Sandiganbayan.

It must be against the backdrop of recent historical events that I feel We must view the Sandiganbayan. At this point, I must emphasize that P.D. 1606 is a legislative measure, and the rule-making power of the Supreme Court is not insulated by the Charter against legislature's attribute of alteration, amendment or repeal. Indeed, it is the Supreme Court that cannot modify or amend, much less repeal, a rule of court originated by the legislative power. Accordingly, the method of appeal provided by P.D. 1606 from decisions of the Sandiganbayan cannot be unconstitutional. If a new or special court can be legitimately created to try offenses already committed, like the People's Court of Collaboration times, I cannot see how the new procedure of appeal from such courts can be faulted as violative of the Charter. True, in criminal cases, the Constitution mandates that the guilt of the accused must be proved beyond reasonable doubt. But once the Sandiganbayan makes such a pronouncement, the constitutional requirement is complied with. That the Supreme Court may review the decisions of the Sandiganbayan only on questions of law does not, in my opinion, alter the fact that the conviction of the accused from the factual point of view was beyond reasonable doubt, as long as the evidence relied upon by the Sandiganbayan in arriving at such conclusion is substantial. Since the creation of the Court of Appeals, the Supreme Court's power of review over decisions of the former even in criminal cases has been limited statutorily or by the rules only to legal questions. We have never been supposed to exercise the power to reweigh the evidence but only to determine its substantiality. If that was proper and legal, and no one has yet been heard to say the contrary, why should We wonder about the method of review of the decisions of the Sandiganbayan under P.D. 1606? With all due respect to the observation of Justice Makasiar, I believe that the accused has a better guarantee of a real and full consideration of the evidence and the determination of the facts where there are three judges actually seeing and observing the demeanor and conduct of the witnesses. It is Our constant jurisprudence that the appellate courts should rely on the evaluation of the evidence by the trial judges, except in cases where pivotal points are shown to have been overlooked by them. With more reason should this rule apply to the review of the decision of a collegiate trial court. Moreover, when the Court of Appeals passes on an appeal in a criminal cases, it has only the records to rely on, and yet the Supreme Court has no power to reverse its findings of fact, with only the usual exceptions already known to all lawyers and judges. I strongly believe that the review of the decisions of the Sandiganbayan, whose three justices have actually seen and observed the witnesses as provided for in P.D. 1606 is a more iron-clad guarantee that no person accused before such special court will ever be finally convicted without his guilt appearing beyond reasonable doubt as mandated by the Constitution. MAKASIAR, J., concurring and dissenting: Some provisions in the Sandiganbayan violate not only the constitutional guarantees of due process as wen as equal protection of the law and against the enactment of ex post facto laws, but also the constitutional provisions on the power of supervision of the Supreme Court over inferior courts as well as its rule-making authority. All the relevant cases on due process, equal protection of the law and ex post facto laws, have been cited by the petitioner, the Solicitor General, and the majority opinion; hence, there is no need to repeat them here. It should be noted that petitioner does not challenge the constitutionality of P.D. No. 1606 on the ground that it impairs the rule-making authority of the Supreme Court and its power of supervision over inferior courts. It should likewise be emphasized that in the opinion of the Writer, the provisions of P.D. No. 1606 which he does not impugn, remain valid and complete as a statute and therefore can be given effect minus the challenged portions, which are separable from the valid provisions.

The basic caveat for the embattled citizen is obsta principiis - resist from the very beginning any attempt to assault his constitutional liberties. I PARAGRAPH 3, SECTION 7 OF P.D. NO. 1606 DENIES PETITIONER DUE PROCESS AND EQUAL PROTECTION OF THE LAW. 1. Persons who are charged with estafa or malversation of funds not belonging to the government or any of its instrumentalities or agencies are guaranteed the right to appeal to two appellate courts - first, to the Court of Appeals, and thereafter to the Supreme Court. Estafa and malversation of private funds are on the same category as graft and corruption committed by public officers, who, under the Decree creating the Sandiganbayan. are only allowed one appeal - to the Supreme Court (par. 3, Sec. 7, P.D. No. 1606). The fact that the Sandiganbayan is a collegiate trial court does not generate any substantial distinction to validate this invidious discrimination Three judges sitting on the same case does not ensure a quality of justice better than that meted out by a trial court presided by one judge. The ultimate decisive factors are the intellectual competence, industry and integrity of the trial judge. But a review by two appellate tribunals of the same case certainly ensures better justice to the accused and to the people. It should be stressed that the Constitution merely authorizes the law-making authority to create the Sandiganbayan with a specific limited jurisdiction only over graft and corruption committed by officers and employees of the government, government instrumentalities and government-owned and -controlled corporations. The Constitution does not authorize the lawmaker to limit the right of appeal of the accused convicted by the Sandiganbayan to only the Supreme Court. The Bill of Rights remains as restrictions on the lawmaker in creating the Sandiganbayan pursuant to the constitutional directive. It is also clear that paragraph 3, Section 7 of P.D. No. 1606 trenches upon the due process clause of the Constitution, because the right to appeal to the Court of Appeals and thereafter to the Supreme Court was already secured under Sections 17 and 29 of the Judiciary Act of 1948, otherwise known as R.A. No. 296, as amended, and therefore also already part of procedural due process to which the petitioner was entitled at the time of the alleged commission of the crime charged against him. (Marcos vs. Cruz, 68 Phil. 96, 104 [1939]; People vs. Moreno, 77 Phil. 548, 555; People vs. Casiano, 1 SCRA 478 [1961]; People vs. Sierra, 46 SCRA 717; Fernando, Phil. Constitution, 1974 ed., pp. 674-675). This is also reiterated in Our discussion hereunder concerning the violation of the constitutional prohibition against the passage of ex post facto laws. 2. Then again, paragraph 3 of Section 7 of P.D. No. 1606, by providing that the decisions of the Sandiganbayan can only be reviewed by the Supreme Court through certiorari, likewise limits the reviewing power of the Supreme Court only to question of jurisdiction or grave abuse of discretion, and not questions of fact nor findings or conclusions of the trial court. In other criminal cases involving offenses not as serious as graft and corruption, all questions of fact and of law are reviewed, first by the Court of Appeals, and then by the Supreme Court. To repeat, there is greater guarantee of justice in criminal cases when the trial court's judgment is subject to review by two appellate tribunals, which can appraise the evidence and the law with greater objectivity, detachment and impartiality unaffected as they are by views and prejudices that may be engendered during the trial. 3. Limiting the power of review by the Supreme Court of convictions by the Sandiganbayan only to issues of jurisdiction or grave abuse of discretion, likewise violates the constitutional presumption of innocence of the accused, which presumption can only be overcome by proof beyond reasonable doubt (See. 19, Art. IV, 1973 Constitution). Even if in certiorari proceedings, the Supreme Court, to determine whether the trial court gravely abused its discretion, can inquire into whether the judgment of the Sandiganbayan is supported by the substantial evidence, the presumption of innocence

is still violated; because proof beyond reasonable doubt cannot be equated with substantial evidence. Because the Supreme Court under P.D. No. 1606 is precluded from reviewing questions of fact and the evidence submitted before the Sandiganbayan, the Supreme Court is thereby deprived of the constitutional power to determine whether the guilt of the accused has been established by proof beyond reasonable doubt - by proof generating moral certainty as to his culpability -- and therefore subverts the constitutional presumption of innocence in his favor which is enjoyed by all other defendants in other criminal cases, including defendants accused of only light felonies, which are less serious than graft and corruption. 4. Furthermore, the Sandiganbayan is composed of a presiding Justice and 8 associate Justices, sitting in three divisions of 3 Justices each (Sec. 3, P.D. No. 1606). Under Section 5 thereof, the unanimous vote of three Justices in a division shall be necessary for the pronouncement of the judgment. In the event that the three Justices do not reach a unanimous vote, the Presiding Justice shall designate two other Justices from among the members of the Court to sit temporarily with them, forming a division of five Justices, and the concurrence of the majority of such division shall be necessary for rendering judgment. At present, there are only 6 members of the Sandiganbayan or two divisions actually operating. Consequently, when a member of the Division dissents, two other members may be designated by the Presiding Justice to sit temporarily with the Division to constitute a special division of five members. The fact that there are only 6 members now composing the Sandiganbayan limits the choice of the Presiding Justice to only three, instead of 6 members from whom to select the two other Justices to compose a special division of five in case a member of the division dissents. This situation patently diminishes to an appreciable degree the chances of an accused for an acquittal. Applied to the petitioner, Section 5 of P.D. No. 1606 denies him the equal protection of the law as against those who will be prosecuted when three more members of the Sandiganbayan will be appointed to complete its membership of nine. P.D. No. 1606 therefore denies the accused advantages and privileges accorded to other defendants indicted before other trial courts. 5. Section 1 of P.D. No. 1606 further displays such arbitrary classification; because it places expressly the Sandiganbayan on "the same level as the Court of Appeals." As heretofore stated, the Sandiganbayan is a collegiate trial court and not an appellate court; its jurisdiction is purely limited to criminal and civil cases involving graft and corruption as well as violation of the prohibited drug law committed by public officers and employees of the government, its instrumentalities and government-owned or -controlled corporations. The Court of Appeals is an appellate tribunal exercising appellate jurisdiction over all cases - criminal cases, civil cases, special civil actions, special proceedings, and administrative cases appealable from the trial courts or quasijudicial bodies. The disparity between the Court of Appeals and the Sandiganbayan is too patent to require extended demonstration. 6. Even the Supreme Court is not spared from such odious discrimination as it is being down-graded by Section 14 of P.D. No. 1606, which effectively makes the Sandiganbayan superior to the Supreme Court; because said Section 14 expressly provides that "the appropriation for the Sandiganbayan shall be automatically released in accordance with the schedule submitted by the Sandiganbayan" (emphasis supplied). There is no such provision in any law or in the. annual appropriations act in favor of the Supreme Court. Under the 1982 Appropriations Act, the funds for the Supreme Court and the entire Judiciary can only be released by the Budget Ministry upon request therefor by the Supreme Court. Sometimes compliance with such request is hampered by bureaucratic procedures. Such discrimination against the Supreme Court - the highest tribunal of the land and the only other Branch of our modified parliamentary-presidential government the first Branch being constituted by the merger or union of the Executive and the Batasang Pambansa - emphasizes the peril to the independence of the Judiciary, whose operations can be jeopardized and the administration of justice consequently obstructed or impeded by the delay or refusal on the part of the Budget Ministry to release the needed funds for the operation of the courts.

II P.D. NO. 1606 VIOLATES THE GUARANTEE AGAINST EX POST FACTO LAWS 1. WE ruled in Kay Villegas Kami (Oct. 22, 1970, 35 SCRA 429) that an ex post facto law is one which alters the rules of evidence and authorizes conviction upon less testimony than the law required at the time the crime was committed, or deprives a person accused of a crime of some lawful protection to which he has become entitled. The indictment against herein petitioner accused him of graft and corruption committed "from July 20, 1977 up to and including January 12, 1978" (Annex A, p. 24, rec.), long before the creation of the Sandiganbayan on December 10, 1978 by P.D. No. 1606 which expressly repealed P.D. No. 1486, the original charter of the Sandiganbayan promulgated on June 11, 1978. As heretofore stated, before the creation of the Sandiganbayan on December 10, 1978, all persons accused of malversation of public funds or graft and corruption and estafa were entitled to a review of a trial court's judgment of conviction by the Court of Appeals on all questions of fact and law, and thereafter by the Supreme Court also on both questions of fact and law. This right to a review of the judgment of conviction by two appellate tribunals on both factual and legal issues, was already part of the constitutional right of due process enjoyed by the petitioner in 1977. This vital right of the accused has been taken away on December 10, 1978 by P.D. No. 1606, thus placing herein petitioner under a great disadvantage for crimes he allegedly committed prior to 1978. 2. As a necessary consequence, review by certiorari impairs the constitutional presumption of innocence in favor of the accused, which requires proof beyond reasonable doubt to rebut the presumption (Sec. 19, Art. IV, 1973 Constitution). P.D. No. 1606 thus in effect reduces the quality and quantity of the evidence requisite for a criminal conviction. The conviction of petitioner is thus facilitated or made easier by P.D. No. 1606, which was not so prior to its promulgation. The Sandiganbayan could not be likened to the People's Court exclusively trying cases against national security whose decisions were appealable directly only to the Supreme Court (Sec. 13, CA 682); because at the time the People's Court Act or C.A. No. 682 was enacted on September 25. 1945, the Court of Appeals was no longer existing then as it was abolished on March 10, 1945 by Executive Order No. 37 issued by President Sergio Osmena soon after the Liberation. Consequently, the People's Court Act could not provide for appeal to the Court of Appeals which was revived only on October 4, 1946 by R.A. No. 52. But even under Section 13 of the People's Court Act appeal to the Supreme Court is not limited to the review by certiorari. The Supreme Court can review all judgments of the People's Court both on questions of fact and of law. III SECTION 9 OF P.D. NO. 1606 CLASHES WITH THE CONSTITUTIONAL RULE-MAKING AUTHORITY OF THE SUPREME COURT Section 9 of P.D. No. 1606 authorizing the Sandiganbayan to promulgate its own rules of procedure without requiring the approval thereof by the Supreme Court, collides with the constitutional rule-making authority of the Supreme Court. to pro- promulgate rules of court for all courts of the land (par. 5, Sec. 5 of Art. X of the New Constitution). IV P.D. NO. 1606 SUBVERTS THE CONSTITUTIONAL POWER OF SUPERVISION OVER INFERIOR COURTS INCLUDING THE SANDIGANBAYAN Section 10 of P.D. No. 1606 authorizing the Sandiganbayan to "administer its own internal affairs, to adopt such rules governing the constitution of its divisions, the

allocation of cases among them and other matters relating to its business," without requiring the approval of the Supreme Court also contravenes the constitutional power of supervision over the Sandiganbayan as an inferior trial court. It cannot be disputed that the Sandiganbayan is an inferior court. 2. Likewise, Section 12 of P.D. No. 1606 vesting the Sandiganbayan with the power to select and appoint its personnel including a clerk of court and three deputy clerks of court and to remove them for cause without reserving to the Supreme Court the authority to approve or disapprove such appointments and to review such removals, aggravates the violation of the constitutional power of supervision of the Supreme Court over inferior courts. 3. Section 13 of P.D. 1606 also contravenes the constitutional power of the Supreme Court to supervise inferior courts; because said Section 13 requires the Sandiganbayan to submit an annual report directly to the President without coursing the same to the Supreme Court for review' and approval. That the Sandiganbayan is a specially favored court is further shown by the General Appropriations Act of 1982 which states that "all appropriations provided herein for the Sandiganbayan shall be administered solely by the Presiding Justice, ..." (par. 1, Sp. Provisions XXV on the Judiciary, p. 538, Gen. Appropriations Act of 1982). This particular provision impairs likewise the constitutional power of administrative supervision vested in the Supreme Court over all inferior courts (Sec. 6, Art. X, 1972 Constitution). It should be emphasized that the same General Appropriations Act of 1982 expressly provides that the disposition of all the appropriations for the Court of Appeals, Court of Tax Appeals, Circuit Criminal Courts, and the Court of Agrarian Relations is expressly subject to the approval of the Chief Justice of the Supreme Court (pp. 539-541, General Appropriations Act of 1982). The authority delegated expressly by the Constitution to the law-maker to create the Sandiganbayan does not include the authority to exempt the Sandiganbayan from the constitutional supervision of the Supreme Court. All the challenged provisions of P.D. No. 1606, namely, Sections 7 (par. 3), 9, 10, 12 and 13 are separable from the rest of its provisions without affecting the completeness thereof, and can therefore be declared unconstitutional without necessarily nullifying the entire P.D. No. 1606. The valid provisions amply determine what is to be done, who is to do it, and now to do it - the test for a complete and intelligible law (Barrameda vs. Moir, 25 Phil. 44; Edu vs. Ericta, Oct. 20, 1970, 35 SCRA 481, 496-497). As a matter of fact, Section 15 acknowledges such separability although under the jurisprudence it is merely a guide for and persuasive, but not necessarily binding on, the Supreme Court which can declare an entire law unconstitutional if the challenged portions are inseparable from the valid portions. Section- 1 of P.D. No. 1606 can be considered valid by just considering as not written therein the phrase "of the same level as the Court of Appeals. Section 5 of P.D. No. 1606 could likewise be validated by simply appointing three more members of the Sandiganbayan to complete its membership. Paragraph 3 of Section 7 of P.D. No. 1606 can be declared unconstitutional without affecting the completeness and validity of the remaining provisions of P.D. No. 1606; because in the absence of said Paragraph 3, Section 17 and 29 of the Judiciary Act of 1984, as amended,can apply. However, the challenged provisions, especially Sections 9, 10, 12 and 13 could remain valid provided it is understood that the powers delegated thereunder to the Sandiganbayan are deemed subject to the approval of the Supreme Court. Teehankee and De Castro, JJ., concur. Fernandez, J., concurs and dissent

EN BANC G.R. No. L-59431 July 25, 1984 ANTERO M. SISON, JR., petitioner, vs.RUBEN B. ANCHETA, Acting Commissioner, Bureau of Internal Revenue; ROMULO VILLA, Deputy Commissioner, Bureau of Internal Revenue; TOMAS TOLEDO Deputy Commissioner, Bureau of Internal Revenue; MANUEL ALBA, Minister of Budget, FRANCISCO TANTUICO, Chairman, Commissioner on Audit, and CESAR E. A. VIRATA, Minister of Finance, respondents. Antero Sison for petitioner and for his own behalf. The Solicitor General for respondents.

FERNANDO, C.J.: The success of the challenge posed in this suit for declaratory relief or prohibition proceeding 1 on the validity of Section I of Batas Pambansa Blg. 135 depends upon a showing of its constitutional infirmity. The assailed provision further amends Section 21 of the National Internal Revenue Code of 1977, which provides for rates of tax on citizens or residents on (a) taxable compensation income, (b) taxable net income, (c) royalties, prizes, and other winnings, (d) interest from bank deposits and yield or any other monetary benefit from deposit substitutes and from trust fund and similar arrangements, (e) dividends and share of individual partner in the net profits of taxable partnership, (f) adjusted gross income. 2 Petitioner 3 as taxpayer alleges that by virtue thereof, "he would be unduly discriminated against by the imposition of higher rates of tax upon his income arising from the exercise of his profession vis-a-vis those which are imposed upon fixed income or salaried individual taxpayers. 4 He characterizes the above sction as arbitrary amounting to class legislation, oppressive and capricious in character 5 For petitioner, therefore, there is a transgression of both the equal protection and due process clauses 6 of the Constitution as well as of the rule requiring uniformity in taxation. 7 The Court, in a resolution of January 26, 1982, required respondents to file an answer within 10 days from notice. Such an answer, after two extensions were granted the Office of the Solicitor General, was filed on May 28, 1982. 8 The facts as alleged were admitted but not the allegations which to their mind are "mere arguments, opinions or conclusions on the part of the petitioner, the truth [for them] being those stated [in their] Special and Affirmative Defenses." 9 The answer then affirmed: "Batas Pambansa Big. 135 is a valid exercise of the State's power to tax. The authorities and cases cited while correctly quoted or paraghraph do not support petitioner's stand." 10 The prayer is for the dismissal of the petition for lack of merit. This Court finds such a plea more than justified. The petition must be dismissed. 1. It is manifest that the field of state activity has assumed a much wider scope, The reason was so clearly set forth by retired Chief Justice Makalintal thus: "The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only 'because it was better equipped to administer for the public welfare than is any private individual or group of individuals,' continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times." 11 Hence the need for more revenues. The power to tax, an inherent prerogative, has to be availed of to assure the performance of vital state functions. It is the source of the bulk of public funds. To praphrase a recent decision, taxes being the lifeblood of the government, their prompt and certain availability is of the essence. 12 2. The power to tax moreover, to borrow from Justice Malcolm, "is an attribute of sovereignty. It is the strongest of all the powers of of government." 13 It is, of course, to

be admitted that for all its plenitude 'the power to tax is not unconfined. There are restrictions. The Constitution sets forth such limits . Adversely affecting as it does properly rights, both the due process and equal protection clauses inay properly be invoked, all petitioner does, to invalidate in appropriate cases a revenue measure. if it were otherwise, there would -be truth to the 1803 dictum of Chief Justice Marshall that "the power to tax involves the power to destroy." 14 In a separate opinion in Graves v. New York, 15 Justice Frankfurter, after referring to it as an 1, unfortunate remark characterized it as "a flourish of rhetoric [attributable to] the intellectual fashion of the times following] a free use of absolutes." 16 This is merely to emphasize that it is riot and there cannot be such a constitutional mandate. Justice Frankfurter could rightfully conclude: "The web of unreality spun from Marshall's famous dictum was brushed away by one stroke of Mr. Justice Holmess pen: 'The power to tax is not the power to destroy while this Court sits." 17 So it is in the Philippines. 3. This Court then is left with no choice. The Constitution as the fundamental law overrides any legislative or executive, act that runs counter to it. In any case therefore where it can be demonstrated that the challenged statutory provision as petitioner here alleges fails to abide by its command, then this Court must so declare and adjudge it null. The injury thus is centered on the question of whether the imposition of a higher tax rate on taxable net income derived from business or profession than on compensation is constitutionally infirm. 4, The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere allegation, as here. does not suffice. There must be a factual foundation of such unconstitutional taint. Considering that petitioner here would condemn such a provision as void or its face, he has not made out a case. This is merely to adhere to the authoritative doctrine that were the due process and equal protection clauses are invoked, considering that they arc not fixed rules but rather broad standards, there is a need for of such persuasive character as would lead to such a conclusion. Absent such a showing, the presumption of validity must prevail. 18 5. It is undoubted that the due process clause may be invoked where a taxing statute is so arbitrary that it finds no support in the Constitution. An obvious example is where it can be shown to amount to the confiscation of property. That would be a clear abuse of power. It then becomes the duty of this Court to say that such an arbitrary act amounted to the exercise of an authority not conferred. That properly calls for the application of the Holmes dictum. It has also been held that where the assailed tax measure is beyond the jurisdiction of the state, or is not for a public purpose, or, in case of a retroactive statute is so harsh and unreasonable, it is subject to attack on due process grounds. 19 6. Now for equal protection. The applicable standard to avoid the charge that there is a denial of this constitutional mandate whether the assailed act is in the exercise of the lice power or the power of eminent domain is to demonstrated that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumtances which if not Identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 20 That same formulation applies as well to taxation measures. The equal protection clause is, of course, inspired by the noble concept of approximating the Ideal of the laws benefits being available to all and the affairs of men being governed by that serene and impartial uniformity, which is of the very essence of the Idea of law. There is, however, wisdom, as well as realism in these words of Justice Frankfurter: "The equality at which the 'equal protection' clause aims is not a disembodied equality. The Fourteenth Amendment enjoins 'the equal protection of the laws,' and laws are not abstract propositions. They do not relate to abstract units A, B and C, but are expressions of policy arising out of specific difficulties, address to the attainment of specific ends by the use of specific remedies. The Constitution does not

require things which are different in fact or opinion to be treated in law as though they were the same." 21 Hence the constant reiteration of the view that classification if rational in character is allowable. As a matter of fact, in a leading case of Lutz V. Araneta, 22 this Court, through Justice J.B.L. Reyes, went so far as to hold "at any rate, 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 'inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation.'" 23 7. Petitioner likewise invoked the kindred concept of uniformity. According to the Constitution: "The rule of taxation shag be uniform and equitable." 24 This requirement is met according to Justice Laurel in Philippine Trust Company v. Yatco, 25 decided in 1940, when the tax "operates with the same force and effect in every place where the subject may be found. " 26 He likewise added: "The rule of uniformity does not call for perfect uniformity or perfect equality, because this is hardly attainable." 27 The problem of classification did not present itself in that case. It did not arise until nine years later, when the Supreme Court held: "Equality and uniformity in taxation means that all taxable articles or kinds of property of the same class shall be taxed at the same rate. The taxing power has the authority to make reasonable and natural classifications for purposes of taxation, ... . 28 As clarified by Justice Tuason, where "the differentiation" complained of "conforms to the practical dictates of justice and equity" it "is not discriminatory within the meaning of this clause and is therefore uniform." 29 There is quite a similarity then to the standard of equal protection for all that is required is that the tax "applies equally to all persons, firms and corporations placed in similar situation."
30

8. Further on this point. Apparently, what misled petitioner is his failure to take into consideration the distinction between a tax rate and a tax base. There is no legal objection to a broader tax base or taxable income by eliminating all deductible items and at the same time reducing the applicable tax rate. Taxpayers may be classified into different categories. To repeat, it. is enough that the classification must rest upon substantial distinctions that make real differences. In the case of the gross income taxation embodied in Batas Pambansa Blg. 135, the, discernible basis of classification is the susceptibility of the income to the application of generalized rules removing all deductible items for all taxpayers within the class and fixing a set of reduced tax rates to be applied to all of them. Taxpayers who are recipients of compensation income are set apart as a class. As there is practically no overhead expense, these taxpayers are e not entitled to make deductions for income tax purposes because they are in the same situation more or less. On the other hand, in the case of professionals in the practice of their calling and businessmen, there is no uniformity in the costs or expenses necessary to produce their income. It would not be just then to disregard the disparities by giving all of them zero deduction and indiscriminately impose on all alike the same tax rates on the basis of gross income. There is ample justification then for the Batasang Pambansa to adopt the gross system of income taxation to compensation income, while continuing the system of net income taxation as regards professional and business income. 9. Nothing can be clearer, therefore, than that the petition is without merit, considering the (1) lack of factual foundation to show the arbitrary character of the assailed provision; 31 (2) the force of controlling doctrines on due process, equal protection, and uniformity in taxation and (3) the reasonableness of the distinction between compensation and taxable net income of professionals and businessman certainly not a suspect classification, WHEREFORE, the petition is dismissed. Costs against petitioner. Makasiar, Concepcion, Jr., Guerero, Melencio-Herrera, Escolin, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur. Teehankee, J., concurs in the result. Plana, J., took no part.

Separate Opinions

AQUINO, J., concurring: I concur in the result. The petitioner has no cause of action for prohibition. ABAD SANTOS, J., dissenting: This is a frivolous suit. While the tax rates for compensation income are lower than those for net income such circumtance does not necessarily result in lower tax payments for these receiving compensation income. In fact, the reverse will most likely be the case; those who file returns on the basis of net income will pay less taxes because they claim all sort of deduction justified or not I vote for dismissal.

Separate Opinions AQUINO, J., concurring: I concur in the result. The petitioner has no cause of action for prohibition. ABAD SANTOS, J., dissenting: This is a frivolous suit. While the tax rates for compensation income are lower than those for net income such circumtance does not necessarily result in lower tax payments for these receiving compensation income. In fact, the reverse will most likely be the case; those who file returns on the basis of net income will pay less taxes because they claim all sort of deduction justified or not I vote for dismissal. EN BANC G.R. No. L-34669 December 15, 1982 CITIZENS SURETY AND INSURANCE CO., INC., petitioner,vs.THE HON. JUDGE RICARDO C. PUNO, THE REGISTER OF DEEDS OF THE CITY OF MANILA AND THE CITY OF MANILA, respondents. ABAD SANTOS, J.: This is an appeal by certiorari where it is prayed that judgment be rendered declaring the aforesaid Resolution No. 542, Series of 1956, of the City of Manila null and void and ordering the Register of Deeds of the City of Manila to register the petitioners affidavit of consolidation and to issue to the latter a new transfer certificate of title. (Rollo, pp. 1112.) Maria Barcelon owned a piece of land measuring 108 square meters located in Barrio Obrero, Tondo, Manila. It was covered by TCT No. 79798. It appears that Barrio Obrero was acquired by the City of Manila pursuant to its Charter; it was subdivided into lots of 108 sq. m. each for residential houses; and the sale of the lots was regulated by Resolution No. 168, series of 1922, which was amended several times, the last by Resolution No. 542, stipulate of 1956. Paragraph 4 of Resolution No. 542 stipulates that: 4. Only Filipino laborers who are bona fide residents in Manila whose wages do not

exceed P180.00 per month, or P6.00 per day, according as they receive monthly or daily compensation shall have the privilege of buying lots in the Barrio. (Rollo, p. 18.). On October 10, 1966, Maria Barcelon mortgaged the land to Citizens Surety and Insurance Co., The purchaser was the lender. After the expiration of the period of redemption, the purchaser sought to consolidate its ownership but the Register of Deeds of Manila refused to register the consolidation. On April 6, 1971, the corporation instituted Civil Case No. 82820 in the Court of First Instance of Manila against the Register of Deeds of Manila and the City of Manila. It prayed that Resolution No. 542 be declared nun and void and that the Register of Deeds be ordered to register the consolidation of title. Judge Ricardo C. Puno dismissed the case. In this appeal, the petitioner insists, as it did in the court below, that Resolution No. 542 is unconstitutional and that it is not applicable to forced sales. The petition is devoid of merit and should be dismiss. Put simply, the petitioner claims that Resolution No. 542 is unconstitutional because it is unreasonable and violates the equal protection clause of the Constitution. It argues as follows: As may be seen from Sec. 4 of Res. No. 542, only laborers earning not more than P180.00 a month or P6.00 a day are qualified to buy lands in Barrio Obrero, Tondo, Manila- Employees working in offices or establishments and earning as much but who are not laborers cannot buy lands in that area. Also persons who are engaged in some calling or occupation earning as much are not also qualified. It should not be overlooked that the intention of the pertinent provisions of the Charter of the City of Manila contained in Sections 97, 98 and 100 of said lands on easy terms. xxx xxx xxx Res. No. 542 includes laborers but does not include low-salaried employees. Laborers are not the only poor people in the City of Manila. There are also others who are the lowsalaried employees and those engaged in some calling or occupation where their income is limited. Are these people to be considered more fortunate and, therefore, should have less in law? The classification resorted to in Sec. 4 of the aforesaid Resolution does not come within the meaning of the principle of equal protection of the laws. A classification to come within such principle must fulfill the following requisites: the classification must not be capricious or arbitrary, but must be natural and reasonable. And to be reasonable (1) it must rest on substantial distinction; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only; and (4) must apply equally to all members of the same class. (Political Law Reviewer, Aruego & Laguio 1954 Ed., p. 764, citing the cases of PPI v. Cayat 38 O.G. March 9, 1940; Ruby vs. Provincial Board of Mindoro, 39 Phil. 660; People & Hongkong & Shanghai Banking Corp. vs. Vera & CoUnjeng , 37 O.G. 187.) An analysis of the provision of Sec. 4 of Resolution No. 542 will show that the classification made thereby does not fulfill the above mentioned requisites. The classification of laborer does not have a substantial distinction from low-salaried employees or persons engaged in some calling with a limited income, because all of them are under like circumstances in their lives, in their liberty, in their property, and in the pursuit of happiness. (Brief, pp. 12-14.) The lot in question is situated in Barrio Obrero. Obrero means laborer or manual worker. There is, therefore, a justifiable and reasonable basis to limit the sale of the lots in the barrio to obreros only they are birds of the same feather. The petitioner also claims that the resolution is unreasonable because it bars a nonlaborer to buy a lot in Barrio Obrero even if he does not earn more than P180.00 a month or P6.00 a day. The petitioner, which is a corporation and not a lowly paid worker, is not competent to raise this claim. For even if We sustain it no benefit can accrue to the

petitioner who will nonetheless be disqualified to acquire the lot. Moreover, in the absence of manifest abuse of power, We are not prepared to substitute Our judgment for that of the City of Manila which is tasked by its Charter to acquire private lands in the city and to subdivide the same into home lots for sale on easy terms to residents, giving first priority to the bona-fide tenants or occupants of said lands, and second priority to laborers and low-salaried employees. (Sec. 100, R.A. No. 409, as amended.) Obviously, the questioned resolution merely seeks to implement the Charter provision. Anent the claim that the questioned resolution does not apply to force sales, Judge Puno said it all as follows: There is no merit in the pretension that the questioned resolution does not apply to forced sales. It is implemented in sales upon foreclosure or on execution by limiting bids to those persons legally qualified to purchase. The legal intent and purpose of the resolution would be rendered utterly nugatory if the same be restricted in its application to voluntary sales. (Rollo, pp. 21-22.) Also, the resolution does not distinguish between voluntary and forced sales. It is hornbook law expounded by Professor Gerardo Florendo when he taught in the College of Law, University of the Philippines, that when the law does not distinguish we should not distinguish. WHEREFORE, the petition is dismissed without any special pronouncement as to costs. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Aquino, Guerrero, Plana, Escolin, Relova and Gutierrez, JJ., concur. De Castro, Melencio-Herrera and Vasquez, JJ., concur in the result. Concepcion, Jr., J., is on leave. EN BANC G.R. No. L-47771 March 11, 1978 PEDRO G. PERALTA, petitioner, vs.HON. COMMISSION ON ELECTIONS, HON. NATIONAL TREASURER, and KILUSANG BAGONG LIPUNAN, respondents. G.R. No. L-47803 March 11, 1978 JUAN T. DAVID, petitioner, vs.COMMISSION ON ELECTIONS (COMELEC); LEONARDO B. PEREZ, Chairman-COMELEC; VENANCIO S. DUQUE, FLORES A. BAYOT, CASIMIRO R. MADARANG, VENANCIO L. YANEZA, CommissionersCOMELEC; JAIME LAYA, Budget Commissioner; and GREGORIO G. MENDOZA, National Treasurer, respondents. G.R. No. L-47816 March 11, 1978 YOUTH DEMOCRATIC MOVEMENT, RAMON PAGUIRIGAN, and ALFREDO SALAPANTAN, JR., petitioners, vs.THE COMMISSION ON ELECTIONS, respondent. G.R. No. L-47767 March 11, 1978 IN THE MATTER OF PETITION FOR THE DECLARATION OF CERTAIN PROVISIONS OF THE ELECTION CODE OF 1978 AS UNCONSTITUTIONAL. GUALBERTO J. DE LA LLANA, petitioner. G.R. No. L-47791 March 11, 1978 B. ASUNCION BUENAFE, petitioner, vs.COMMISSION ON ELECTIONS, respondent.

G.R. No. L-47827 March 11, 1978 REYNALDO T. FAJARDO, petitioner, vs.COMMISSION ON ELECTIONS, JAIME LAYA, as the BUDGET COMMISSIONER, GREGORIO G. MENDOZA, as the NATIONAL TREASURER, KILUSANG BAGONG LIPUNAN, and LAKAS NG BAYAN, respondents. Pedro G. Peralta in his own behalf. Nemesio C. Garcia, Jr., Rodrigo H. Melchor, Dante, S. David, Julie David-Feliciano & Juan T. David for petitioner Juan T. David. Raul M. Gonzalez & Associates for petitioners Youth Democractic Movement, et al. Gualberto J. de la Llana in his own behalf. B. Asuncion Buenafe in his own behalf Binay Cueva, Fernandez & Associates for petitioner Reynaldo T. Fajardo. Tolentino Law Office for respondent Kilusang Bagong Lipunan. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Vicente V. Mendoza and Assistant Solicitor General Reynato S. Puno for Commission of Elections (COMELEC).

ANTONIO, J.: These six (6) consolidated petitions pose for the determination of this Court the constitutionality of specific provisions of the 1978 Election Code (Presidential Decree No. 1269). I The first issue posed for resolution is: Whether or not the voting system provided for in Sections 140 and 155, subparagraphs 26 to 28, of the 1978 Election Code, granting to the voter the option to vote either for individual candidates by filling in the proper spaces in the ballot the names of candidates he desires to elect, or to vote for all the candidates of a political party, group or aggrupation by simply waiting in the space provided for in the ballot the name of the political party, group or aggrupation, violates Section 1 of Article IV and Section 9(1) of article XII-C of the Constitution. The specific provisions of the 1978 Election Code which are assailed as being in violation of the equal protection clause are the following: SEC. 140. Manner of preparing the ballot. The voter upon receiving his folded ballot shall forthwith proceed to one of the empty voting booths and shall there fill his ballot by writing in the proper space for each office the name of the candidate for whom he desires to vote: Provided, That in the election of regional representatives to the interim Batasang Pambansa, the voter may choose to vote for individual candidates by filling in the proper spaces of the ballot the names of candidates he desires to elect, but if for any reason he chooses to vote for all the candidates of a political party, group or aggrupation, by writing in the space provided for in the ballot the name of the political party, group or aggrupation: Provided further, That the ballots for the election of regional representatives to the interim Batasang Pambansa shall be prepared by the Commission in such manner that the voter may vote for the straight ticket of a political party, group or aggrupation or for individual candidates, and for this purpose, the ticket of a regularly organized political party, group or aggrupation as certified under oath by their respective directorates or duly authorized representatives as wen as candidates not belonging to any particular political party, group or aggrupation, shall be printed in the upper portion of said ballots in a manner which does not give undue advantage to any political party,

group or aggrupation or candidate, and there shall also be a column containing blank spaces for the names of such candidates which spaces are to be filled by the voter who does not desire to vote for a straight ticket: Provided, finally, That a candidate may be in the ticket of only one political party, group or aggrupation; if he is included in the ticket of more than one political party, group or aggrupation presenting different sets of candidates, he shall immediately inform the Commission as to which ticket he chooses to be included, and if he fails to do so, he shall cease to be considered to belong to any ticket. The following notice shall be printed on the ballot: "If you want to vote for all the official candidates of a political party, group or aggrupation to the exclusion of all other candidates, write the name of such political party, group or aggrupation in the space indicated. It shag then be unnecessary for you to write the names of Candidates you vote for. On the other hand, if you want to vote for candidates belonging to different parties, groups or aggrupations and/or for individual candidates, write in the respective blank spaces the names of the candidates you vote for and the names written by you in the respective blank spaces in the ballot shall then be considered as validly voted for. xxx xxx xxx SEC. 155. Rules for the appreciation of ballots. In the reading and appreciation of ballots, the committee shall observe the following rules: xxx xxx xxx 26. If a voter has written in the proper space of the ballot the name of a political party, group or aggrupation which has nominated official candidates, a vote shall be counted for each of the official candidates of such party, group or aggrupation. 27. If a voter has written in the proper space of the ballot the name of a political party, group or aggrupation which has nominated official candidates and the names of individual candidates belonging to the ticket of the same political party, group or aggrupation in the spaces provided therefor, a vote shall be counted for each of the official candidates of such party, group or aggrupation and the votes for the individual candidates written on the ballot shall be considered as stray votes. 28. If a voter has written in the proper space of his ballot the name of a political party, group or aggrupation which has nominated official candidates and the names of individual candidates not belonging to the ticket of the same political party, group or aggrupation in the spaces provided therefor, an of the votes indicated in the ballot shall be considered as stray votes and shall not be counted. Provided, however, That if the number of candidates nominated by the political party, group or aggrupation written by the voter in the ballot is less than the number of seats to be filled in the election and the voter also writes the names of individual candidates in the spaces provided therefor not belonging to the ticket of the political party, group or aggrupation he has written in the ballot, the ballot shall be counted as votes in favor of the candidates of the political party, group or aggrupation concerned and the individual candidates whose names were firstly written by the voter in the spaces provided therefor, until the authorized number of seats is fined. The system which allows straight party voting is not unique in the Philippine experience. As early as 1941, the Second National Assembly of the Philippines enacted Commonwealth Act No. 666, entitled "An Act to Provide for the First Election for President and Vice-President of the Philippines, Senators, and Members of the House of Representatives, Under the Constitution and the Amendments Thereof." Said Commonwealth Act enabled the voter to vote for individual candidates or for a straight party ticket by writing either the names of the candidates of his choice or of the political party he favored on designated blank spaces on the ballot. 1 While the original Election Code, Commonwealth Act No. 357, dated August 22, 1938, did not carry provisions for optional straight party voting, 2 the system was, however, substantially reinstituted in Republic Act No. 180, or the Revised Election Code, enacted on June 21, 1947. 3 The only im portent difference introduced was that in appreciating ballots on which the voter had written both the name of a political party and the names

of candidates not members of said party, Republic Act No. 180 provided that the individual candidates whose names were written shall be considered voted for, 4 whereas Commonwealth Act No. 666 provided that the vote shall be counted in favor of the political party. 5 Likewise, it should be noted that in other jurisdictions, ballots providing for optional straight party voting have been accepted as a standard form, in addition to the "officeblock" ballots in which all candidates for each office grouped together. Among the different states of the United States, for example, the following has been observed: The party-column ballot, used in about 30 states, is sometimes called the Indiana-type ballot because the Indiana law of 1889 has served as a model for other states. In most states using the party column ballot, it is possible to vote for the candidates of a single party for all offices by making a single cross in the circle at the head of the column containing the party's candidates. In some states, the party emblem is carried at the top of its column, a feature which, in less literate days, was of some utility in guiding the voter to the right column on the ballot. To vote a split ticket on a party-column ballot usually requires the recording of a choice for each office, path the voter will presumably hesitate to follow when he has the alternative of making a single crossmark. Professional party workers generally favor the use of the party-column ballot because it encourages straight ticket voting. ... In contrast with the party-column ballot is the office-block ballot, or, as it is sometimes called by virtue of its origin, the Massachussetts ballot. Names of all candidates, by whatever party nominated, for each office are grouped together on the office-block ballot, usually with an indication alongside each name of the party affiliation. The supposition is that the voter will be compelled to consider separately the candidates for each ballot, in contrast with the encouragement given to straight-ticket voting by the party column ballot. Pennsylvania uses a variation of the office-block ballot: the candidates are grouped according to office but provision is made for straight-ticket voting by a single mark. 6 Election laws providing for the Indiana-type ballot, as aforementioned, have been held constitutional as against the contention that they interfere with the freedom and equality of elections. Thus, in Oughton, et al. v. Black, et al., 7 assailed as unconstitutional was a statutory proviso which required that ballots should be printed with the following instructions: "To vote a straight party ticket, mark a cross (x) in the square opposite the name of the party of your choice, in the first column. a crossmark in the square opposite the name of any candidate indicates a vote for that candidate." It was contended that such provision interferes with the freedom and equality of elections, and authorizes a method of voting for political parties and not 'or men. It was alleged that the special privilege given to straight ticket voters and denied to others injured appellants, who, as candidates, were opposed by other candidates who can much more easily be voted for. In resolving such question and declaring the law valid, the Supreme Court of Pennsylvania held that the "free and equal exercises of the elective franchise by every elector is not impaired by the statute, but simply regulated. The regulation is for the convenience of the electors. The constitutionality of the law is not to be tested by the fact that one voter can cast his ballot by making one mark while another may be required to make two or more to express his will. When each has been afforded the opportunity and been provided with reasonable facilities to vote, the Constitution, and lies in the sound discretion of the Legislature." 8 The Pennsylvania Court further emphasized that elections are equal when the vote of every candidate is equal in its influence on the result, to the vote of every candidate; when each ballot is as effective as every other ballot. 9 To the same effect is the holding in Ritchie v. Richards, which sustained the validity of a statute containing a similar provisional. 10 At any rate, voting by party has been accepted in various states as a form of democratic electoral process. In Israel, for example, where the election system is one of proportional

representation in which each political party presents a list of candidates to the citizenry, the voter selects a party, not a candidate, and each party is then represented in the Knesset in proportion to its strength on the polls. The head of the largest party is asked to form a government. 11 In France, on the other hand, under the electoral law of October 5, 1946, providing for the selection of National Assembly members, a list system of proportional representation was set up, whereby each electoral area elected several candidates in proportion to its voting strength. The voter was required to vote only for one party list; he could not split his vote among several candidates on different party lists, but could depart from the order of preference set up by the party. Commissioners then count the ballots for each party list and distribute the total number of seats among the different successful parties. 12 In Italy and West Germany, party voting is likewise in practice, and proportional representation seats are distributed on the basis of the number of votes received by the successful parties. Petitioners in the cases at bar invoke the constitutional mandate that no person shag be denied the equal protection of the laws (Article IV, Section 1) and the provision that "bona fide candidates for any public office shall be free from any form of harassment or discrimination" (Article XII-C, Section 9[l]). The word "discrmination" in the latter provision should be construed in relation to the equal protection clause and in the manner and degree in which it is taken therein, since said provision "is in line with the provision of the Bill of Rights that no 'person shall be denied the equal protection of the laws' ". 13 The main objection of petitioners against the optional straight party' voting provided for in the Code is that an independent candidate would be discriminated against because by merely writing on his ballot the name of a political party, a voter would have voted for all the candidates of that party, an advantage which the independent candidate does not enjoy. In effect, it discontended that the candidate who is not a party member is deprived of the equal protection of the laws, as provided in Section 1 of Article IV, in relation to Section 9 of Article XII, of the Constitution. The equal protection clause does not forbid all legal classifications. What is proscribes is a classification which is arbitrary and unreasonable. It is not violated by a reasonable classification based upon substantial distinctions, where the classification is germane to the purpose of the law and applies equally to all those belonging to the same class. 14 The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within the class and those who do not. 15 There is, of course, no concise or easy answer as to what an arbitrary classification is. No definite rule has been or can be laid down on the basis of which such question may be resolved. The determination must be made in accordance with the facts presented by the particular case. The general rule, which is well-settled by the authorities, is that a classification, to be valid, must rest upon material differences between the persons, activities or things included and those excluded.' There must, in other words, be a basis for distinction. Furthermore, such classification must be germane and pertinent to the purpose of the law. And, finally, the basis of classification must, in general, be so drawn that those who stand in substantially the same position with respect to the law are treated alike. It is, however, conceded that it is almost impossible in some matters to foresee and provide for every imaginable and exceptional case. Exactness in division is impossible and never looked for in applying the legal test. All that is required is that there must be, in general, some reasonable basis on general lines for the division. 16 Classification which has some reasonable basis does not offend the equal protection clause merely because it is not made with mathematical nicety. 17 In the cases at bar, the assailed classification springs from the alleged differential treatment afforded to candidates who are party members as against those who run as independents. It must be emphasized in the election law must carry the burden of showing that it does not rest upon a reasonable basis, but is essentially arbitrary. 18 The factual foundation to demonstrate invalidity must be established by the litigant challenging its constitutionality. 19 These principles are predicated upon the presumption

in favor of constitutionality. This has to be so because of "the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. The question of the validity of every statute is first determined by the legislative department of the government itself. 20 Thus, to justify the nullification of a law, there must be "a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication." 21 There is practical unanimity among the courts in the pronouncement "that laws shag not be declared invalid unless the conflict with the Constitution is clear beyond a reasonable doubt. 22 We shall now test the validity of petitioners' arguments on the basis of these principles. In the challenged provision of the electoral law, unlike the previous block- voting statutes, all the names of the candidates, whether of parties, groups or independent candidates, are printed on the ballot. Before he prepares his ballot, the voter will be able to read all the names of the candidates. No candidate will receive more than one vote, whether he is voted individually or as a candidate of a party group or aggrupation. The voter is free to vote for the individual candidates or to vote by party, group or aggrupation. The choice is His. No one can compel him to do otherwise. In the case of candidates, the decision on whether to run as an independent candidate or to join a political party, group or aggrupation is left entirely to their discretion. Certainly, before filing his certificate of candidacy, a candidate is aware of the advantages under the law accruing to candidates of a political party or group. If he wishes to avail hihiself of such alleged advantages as an official candidate of a party, he is free to do so by joining a political party group or aggrupation. In other words, the choice is his. In making his decision, it must be assumed that the candidate had carefully weighed and considered the relative advantages and disavantages of either alternative. So long as the application of the rule depends on his voluntary action or decision, he cannot, after exercising his discretion, claim that he was the victim of discrimination. In the ordinary course of things, those who join or become members of associations, such as political parties or any other lawful groups or organizations, necessarily enjoy certain benefits and privileges which are incident to, or are consequences of such membership. Freedom of association has been enshrined in the Constitution to enable individuals to join others of like persuasion to pursue common objectives and to engage in lawful activities. Membership in associations is considered as an extension of individual freedom. Effective advocacy of both public and private views or opinions is undeniably enhanced by group association. Freedom to engage in associations for the advancement of beliefs and Ideas is, therefore, an inseparable aspect of the liberty guaranteed by the fundamental law. Therefore, if, as an incident of joining a political party, group or aggrupation, the candidate is given certain privileges, this is constitutionally Permissible. Thus, under the provisions of the previous election laws, only the parties who polled the largest and the next largest number of votes in the last preceding presidential elections were entitled to representation in the Board of Election Inspectors. 23 Independent candidates had no representation in the Board; and yet it was never contended that the independent candidates were denied the equal protection of the laws. The official candidates of an organized political party may be distinguished from an independent candidate. The former are bound by the party's rules. They owe loyalty to the party, its tenets, its policies, its platform and programmes of government. To the electorate, they represent the party, its principles, ideals and objectives. This is not true of an independent candidate. If the electoral law has bias in favor of political parties, it is because political parties constitute a basic element of the democractic institutional apparatus. Government derives its strength from the support, activity or passive, of a coalition of elements of society. In modern nines the political party has become the instrument for the organization of societies. This is predicated on the doctrine that government exists with the consent of the governed. Political parties per. form an

"essential function in the management of succession to power, as well as in the process of obtaining popular consent to the course of public policy. They amass sufficient support to buttress the authority of governments; or, on the contrary, they attract or organize discontent and dissatisfaction sufficient to oust the government. In either case they perform the function of the articulation of the interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be promotive of the national weal." 24 The Constitution establishes a parliamentary system of government. Such a system implies the existence of responsible political parties with distinct programmes of government. The parliamentary system works best when party distinctions are well defined by differences in principle. As observed by a noted authority on political law, under a parliamentary system; "the maintenance and development party system becomes not only necessary but indispensable for the enforcement of the idea and the rule of government responsibility and accountability to the people in the political management of the country." 25 Indeed, the extent to which political parties can become effective instruments of self-government depends, in the final analysis, on the degree of the citizens' competence in politics and their willingness to contribute political resources to the parties. It is also contended that the system of optional straight party voting is anathema to free, orderly and honest elections or that it encourages laziness or political irresponsibility. These are objections that go to the wisdom of the statute. It is well to remember that this Court does not pass upon questions of wisdom or expediency of legislation. We have reiterated in a previous case that: "It is ... settled ... that only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid." 26 This notwithstanding, We deem it necessary, for the information of everyone concerned, to explain why such fears, in a growing climate of political maturity and social responsibility appear conjectural. There are no data to show that the system herein assailed was the proximate cause of all the frauds in the 1941, 1947 and 1949 elections. Besides, all procedures or manners of voting are susceptible to fraud. The important thing to consider is that the 1978 Election Code is replete with new provisions designed to guarantee the sanctity and secrecy of the people's vote. As demonstrated in the experience of other democratic states, such a system has its advantages. It may enable deserving young candidates but without adequate financial resources of their own to win, with party support, in countrywide or regional elections. Since candidates of a party or group may pool their resources, it will tend to make elections less expensive. As this system of voting favors the strongly organized parties or groups, it tends to prevent the proliferation of political parties or groups. It thus results in the formation of stable and responsible political parties. On the part of the electorate, such a system of voting facilitates the exercise of their right of suffrage. It enables the laborer, the farmer and the voter of ordinary education to vote with greater facility for all the official candidates of the party of his choice. It thus broadens the ways and means by which the sovereign will can be expressed. Nor could it be true, as petitioners contend, that a system which allows straight ticket voting encourages laziness and political irresponsibility. While there may be those who may be moved to vote straight party by reason of lack of interest, nevertheless, there are still those sufficiently interested to cast an intelligent vote. It has been observed that in a straight ticket the motivated voter is more likely to organize his ballot in a highly structure pattern. His motivation may derive from an interest in parties, candidates, or issues or any combination of those. As observed by a survey research group: "Motivated straight ticket voting appears to reflect an intention on the part of the voter to accomplish his political purpose as fully as possible. Such a voter does not scatter his choices casually, he has a political direction in mind and he implements it through the choice of one party or the other on the ballot. The more highly motivated he is toward this political objective, the less willing he is to dilute his vote by crossing party lines." 27

II The second issue before Us is: Whether or not the provisions of Sections 11, 12 and 14 of the 1978 Election Code, which authorize the elections of the members of the interim Batasang Pambansa by regions, violate Section 2 of Article VIII of the Constitution which provides that the members of the National Assembly shall be apportioned among the provinces, representative districts and cities. Assailed as unconstitutional are the following provisions of the 1978 Election Code: SEC. 11. Composition. The interim Batasang Pambansa shall be composed of the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shag not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the members of the Cabinet." SEC. 12. Apportionment of regional representatives. There shall be 160 regional representatives to the interim Batasang Pambansa apportioned among the thirteen regions of the nation in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio ... : xxx xxx xxx The foregoing apportionment shall be not considered a precedent in connection with the re-apportionment of representative districts for the regular National Assembly under Section 2, Article VIII and Section 6, Article XVI I of the Constitution. Notwithstanding the foregoing provisions, the number of regional representative for any region shall not be less than the number of representative districts therein existing at the time of the ratification of the Constitution. There are also allotted two additional seats for regional representatives to Region IV in view of inhabitants, such as students, in the region not taken into account in the 1975 census. SEC. 14. Voting by region. Each region shall be entitled to such number of regional representatives as are allotted to it in Section 12 of Article II hereof. All candidates for region representatives shall be voted upon at large by the registered voters of their respective regions. The candidates receiving the highest number of votes from the entire region shall be declared elected. The constitutional provision relied upon is Section 2 of Article VIII, which provides: SEC. 2. The National Assembly shall be composed of as many Members as may be provided by law to be apportioned among the provinces, representative districts and cities in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio. Each district shall Comprise, as far as practicable, contiguous, compact, and adjacent territory. Representative districts or provinces already created or existing at the time of the ratification of this Constitution shag have at least one Member each. In resolving the issue, the provisions of Amendment No. 1 to the Constitution, which took effect on October 27, 1976, should be considered and not, as pointed out by petitioner Juan T. David, those of Section 2 of Article VIII of the Constitution, which deal with the composition of the regular National Assembly. It should be recalled that under the term of the Transitory Provisions of the Constitution, 28 the membership of the interim National Assembly would consists of the Incumbent President and Vice-President, the Senators and the Representatives of the old Congress and the Delegates to the Constitutional Convention who have opted to serve therein. The Filipino people rejected the convening of the interim National Assembly, and for a perfectly justifiable reason.

By September of 1976, the consensus had emerged for a referendum partaking of the character of a plebiscite which would be held to establish the solid foundation for the next step towards normalizing the political process. By the will of the people, as expressed overwhelmingly in the plebiscite of October 15 and 16, 1976, Amendments Nos. 1 to 9 were approved, abolishing the interim National Assembly and creating in its stead an interim Batasang Pambansa. T was intended as a preparatory and experimental step toward the establishment of full parliamentary government as provided for in the Constitution. Amendment No. 1 provides: 1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa, Members of the interim Batasang Pambansa, which shall not be more than 120, unless otherwise provided by law, shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the Members of the Cabinet. Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio, while the sectors shall be determined by law. The number of representatives from each region or sector and the manner of their election shall be prescribed and regulated by law. (Emphasis supplied.) The provisions of the Above Amendment are clear. Instead of providing that representation in the interim Batasang Pambansa shall be by representative districts, it specifically provides that; (1) the representatives shall be elected from the different regions of the nation; and (2) the "Regional representatives shall be apportioned among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio while the sector shall be determined by law. " No mention whatsoever is made of 4 provinces, representative districts and cities". Where the intent is to relate to the regular National Assembly, the Constitution made it clear and manifest, as indicated in Amendment No. 2 of the Constitution. 29 It is significant to note that nowhere in the said amendment is it provided that the members of the interim Batasang Pambansa shall be apportioned among the representative districts, in the same manner as the regular National Assembly. The clear import and intent of the Constitutional Amendment is, therefore, the election of the representatives from the different regions of the nation, and such regional representatives shall be alloted or distributed among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio. Neither does the Amendment provide that the members of the interim Batasang Pambansa "shall be elected by the qualified electors in their respective district for term of six years ..." as provided in Section 3[l] of Article VIII of the Constitution. To hold that Section 3[l] of Article VIII is applicable to the interim Batasang Pambansa would lead to the conclusion that the members of the Batasan shall have a term of six years, which is of course inconsistent with its transitory character. That the interim Batasang Pambansa is a distinct and special body, which, by reason of its transitory nature should be governed by specifically formulated rules, is apparent from the constitutional amendment which created it. Thus, its membership "shall not be more than 120, unless otherwise provided by law. " Furthermore, it "shall include the incumbent President of the Philippines, representatives elected from the different regions of the nation, those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by the incumbent President from the Members of the Cabinet." The regular National Assembly, on the other hand, is limited in its membership to representatives to be apportioned among the provinces, representative districts and cities. By reason of its provisional character, the interim Batasang Pambansa has to be more flexible, both in its representation and the manner of election of its members. There is no denying the fact that as wide a range of representation as possible is required in order to hasten the nation's return to normalcy. It is for t reason that sectors are given adequate representation 30 and are considered as "national aggrupations. " Elections of sectoral representatives are specially provided for in the 1978 Election Code. 31 It should be emphasized that the regular National Assembly is distinct and different in composition, powers and manner of elections of its members from the interim Batasang Pambansa is

to function during the period of transition while the regular National Assembly is to operate upon the restoration of normalcy. The composition of the interim Batasang Pambansa is indeed experimental. It is an experiment in size, form and distribution of constituencies in the hope of securing a legislature most truly representative of the views of the electorate. It would, therefore, be ludicrous to confine the members of such body within the strictures of the representative districts of the regular National Assembly. The fear of petitioner Juan T. David that several representative districts will be deprived of representation misconstrues the concept of regional elections. The representatives are to be elected by the voters of the entire region. They will represent the whole region and not merely its integral provinces, districts or cities. Moreover, Section 12 of the Code ensures that there shall be sufficient representatives for each region by providing that "the number of regional representatives for any region shall not be less than the number of representative districts therein existing at the time of the ratification of the Constitution." III The following two issues raised by petitioners are interrelated and must be jointly discussed herein. They are: (a) Whether or not the Kilusang Bagong Lipunan (KBL) and the Lakas ng Bayan (LABAN) may be registered and accredited as political parties under Section 8 of Article XII-C of the Constitution, so that their respective candidates for membership in the interim Batasang Pambansa may be voted for as a group under the 1978 Election Code; and (b) Whether or not members of a political party in the l971 elections may run under the ticket sponsored by any other party, group or aggrupation, considering the provisions of Section 10 of Article XII-C of the Constitution which prohibition candidates for any elective public office from changing party affiliation within six months s immediately preceding or following an election The resolution of the foregoing issues calls for the determination of the constitutionality of Section 199 of the 1978 Election Code, questioned by petitioners. Said section provides: SEC. 199. Registration of political parties. Pending the promulgation of rules and regulations to govern the registration and accreditation of political parties by the Commission in accordance with Article XII[C] of the Constitution, the registration with the Commission previous to 1972 of the Nacionalista Party, Liberal Party, Citizens' Party, and other national parties shall be deemed to continue and they may, upon notice to the Commission through their respective presidents or duly authorized representatives, amend or change their names, constitutions, by-laws, or other organizational papers, platfor, officers and members, and shag be entitled to nominate and support their respective candidates for representatives in the interim Batasang Pambansa. Similarly, any other group of persons pursuing the same political Ideals in government may register with the Commission and be entitled to the same rights and privileges. Invoked by petitioner are Sections 8 and 10 of Article XII-C of the Constitution, which provide: SEC. 8. A political party shall be entitled to accreditation by the Commission if, in the immediately preceding election, such party has obtained at least the third highest number of votes cast in the constituency to which it seeks accreditation. No religious sect shall be registered as political party, and no political party which seeks to achieve its goals through violence or subversion shall be entitled to accreditation. SEC. 10. No elective public officer may change political party affiliation during term of office, and no candidate for any elective public office may change political party affiliation within six months immediately preceding g or following an election. It should be recalled that the object of the afore-quoted provisions of the Constitution

was to develop a third party and break the heretofore dominant hold on the political system by the two major political parties which have been in existence since the birth of the republic. These two major parties were considered as "in fact a one party system with two factions openly disagreeing on fringe issues but tacitly united by one common aim: alternate monopoly of power through a pattern of patronage politics." 32 The framers of the Constitution examined the weaknesses of the party system and saw the need "for discarding the old party system as a political farce that has been largely responsible for many of the country's ills ...". 33 They envisioned, therefore, a new era in Philippine politics, where elections were to be decided on issues rather than on personalities, and where the electoral process was to be free, less expensive government depends on an organized and vigorous citizenry. Such can only exist if citizens can increase their effectiveness in politics by modernizing and using political parties to set the general directions of public policy and to influence the specific decisions of public institutions that affect their daily lives. It was intended, however, that some of these provisions would not operate during the interim period. Thus, from the wording of Section 8, it is obvious that said section is incapable of application during the first election because it states that no political party shall be entitled to accreditation unless in the immediately preceding election, it obtained at least the third highest number of votes cast in the constituency to which it seeks accreditation. That there cannot be any accreditation during the first election under the 1973 Constitution is evident from the sponsorship speech of the proponent of t constitutional provision. 34 Although their members are united by common policies and principles of government and apparently impelled by the same political Ideals, neither the Kilusang Bagong Lipunan (KBL) nor the Lakas ng Bayan (LABAN) professes to be a political party in the sense of a stable organization with a degree of permanence, imposing strict discipline among the members, and with a party platform drafted and ratified in a party convention. It does not follow, however, that the KBL and LABAN are not political parties, in a generic sense, since a political party has been generally defined as "an association of voters believing in certain principles of government, formed to urge the adoption and execution of such principles in governmental affairs through officers of like belief." 35. Political parties "result from the voluntary association of electors, and do not exist by operation of law. The element of time is not essential to the formation of a legal party; it may spring into existence from the exigencies of a particular election, and with no intention of continuing after the exigency has passed." 36 As a matter of fact, it is only the Kilusang Bagong Lipunan (KBL) and the Lakas ng Bayan (LABAN) that have polarized the major differences on vital public issues affecting the nation. And, during t first election in t period of transition when, obviously, no political party can be accredited, does the Constitution, in Article XII-C, Sections 2[5] and 8 limit registration to political parties as strictly understood by withholding it from aggrupations of persons pursuing the same political Ideals of government as provided in Section 199 of the 1978 Election Code? It clearly does not. The listing of political parties appears to have a dual aspect registration and accreditation Registration is a means by which the government is enabled to supervise and regulate the activities of various elements participating in an election. It would appear from Section 8 of Article XII-C that the only groups which cannot be registered are: (a) religious groups or sects; and (b) those political parties or groups who seek "to achieve its goals through violence and subversion". Accreditation is the means by which the registration requirement is made effective by conferring benefits to registered political parties. The condition for accreditation, aside from those mentioned, is that the political party must have obtained, in the immediately preceding election, at least "the third highest number of votes cast in the constituency to which it seeks accreditation. " The Constitution, however, does not state what are the effects of accreditation. There is, therefore, necessity for legislation. Moreover, to construe the term "political party" restrictively would delimit the supervisory authority of the Commission on Elections. More specifically, it would exempt aggrupations or other political groups from certain requirements. Under Section 199, the 1978 Election Code allows the registration of aggrupations or groups of persons "pursuing the same political Ideals in government"; consequently, they are subjected to the regulation of propaganda

materials (Sec. 41) and the limitation of expenses for candidates (Sec. 52). From another point of view, a narrow construction may discourage the robust exercise of the right of association guaranteed by the Bill of Rights, which at t stage of our political tory appears, necessary. The facts that the coming polls will be the first that we shall hold since the proclamation of martial law on September 21, 1972 makes it an event of no ordinary significance. "The Filipino society has outgrown its age of innocence. Today the acts of Filipino politicians must be judged by more mature standards and the test of national allegiance has become more strict and more demanding, even more binding." 37 By t election, we shall inaugurate a new stage in our political life, and commence our fateful transition from crisis government to a parliamentary system. But as President Ferdinand E. Marcos has significantly observed: ... this step, I repeat, is no mere restoration of electoral processes and representative government. The coming elections would be a perilous exercise indeed if they would merely return us to elections and representative institutions as we had known them in the past, and compromise what had taken us so much time and effort to construct over the last five years. What we envision in t initiative is the permanence and continuity of the refor that we have launched under the aegis of crisis government. We envision in it the full emergence of a new political order that will give life and sustenance to our national vision of a new society. And it will have permanence and continuity because by the grace of suffrage and representative government, we shag thereby attain a formal mechanism for the exercise of participation and involvement by our people in nation-building and national development. 38 It is, therefore, necessary at t stage to encourage the emergence or growth of political parties that will truly reflect the opinions and aspirations of our people. The right of individuals to form associations as guaranteed by the fundamental law, includes the freedom to associate or refrain from association. 39 In accord with t constitutional precept, it is recognized that no man is compelled by law to become a member of a political party, or, after having become such, to remain a member. 40 The existence of responsible political parties with distinct programs of government is essential to the effectiveness of a parliamentary system of government. It is in recognition of t fact that Section 199 of the 1978 Election Code allows or sanctions the registration of groups of persons "pursuing the same political ideals in government" with the Commission on Elections. Moreover, to what extent the rights of organized political parties should be regulated by law is a matter of public policy to be determined by the lawmaker a matter which does not concern the courts. 41 T brings us to the next point raised by petitioners, namely, that under Section 10 of Article XII-C of the Constitution, no candidate for elective office may change party affiliation within six months immediately preceding or following an election. In the cases at bar, We understand that no candidate voluntarily changed party affiliation. On the contrary, the claim that the KBL and the LABAN are not political parties" is based partly on the fact that the candidates running under their banners have retained their party affiliation. Section 10 is a statement of a basic principle against political opportunism. To begin with, no legislation has been enacted to implement t constitutional prohibition. Indeed, it is difficult to conceive how the courts may apply the prohibition, in all the varied facts and circutances under which it may be invoked, without the aid of supplementary legislation. For instance, the provision in question states that no elective public officer may change political party affiliation during term of office. Suppose an elected representative in the legislature, belonging to one party, shall always vote and side with another political party. Will he be considered a "turncoat" even if he does not formally change party affiliation? Suppose it be decided that he is a "turncoat". What sanctions should be adopted? Should he be suspended or ousted from the legislature?

When one turns to political candidates, the same questions as to what should be considered "political opportunism" or "turncoatism" will be encountered. But the problem of procedure for hearing and deciding infringements of the prohibition or the determination of the appropriate sanction becomes more acute. Is the sanction to be found in the refusal by the Commission on Elections to register the party or group, or in the denial of certificate of candidacy, or are there other ways? Should political parties be prevented from "adopting" candidates? Or from forming coalitions? All of these are questions of policy, in resolving winch many immensurable factors have to be considered. The afore-cited constitutional provisions are commands to the legislature to enact laws to carry out the constitutional purpose. They are, therefore, addressed initially to the lawmaking department of the government. It is not part of the judicial department to deal with such questions without their authoritative solutions by the legislative department. It may be relevant to emphasize here that the jurisdiction of t Court is "limited to cases and controversies, presented in such form, with adverse litigants, that the judicial power is capable of acting upon them, and pronouncing and carrying into effect a judgment between the parties, and does not extend to the determination of abstract questions or issues framed for the purpose of invoking the advice of the court without real parties or a real case." 42 In any event, We cannot perceive how such constitutional prohibition could be applied in t first election. Precisely, the overriding constitutional purpose is to remove the dominant hold of the two major political parties and encourage the formation of new political parties. The intention is not to rebuild old party coalitions but to define new political means and instruments, within the parties or beyond them, that will allow the Filipino people to express their deeper concerns and aspirations through popular government. IV The fourth issue is: whether or not the forty-five-day period of campaign prescribed in the 1978 Election Code violates the Constitution because. (a) it was decreed by the President and not by the Commission on Elections as provided by Section 6 of Article XIIC; and (b) the period should cover at least ninety (90) days. Petitioners question the constitutionality of Section 4 of the 1978 Election Code, which provides: SEC. 4. Election and campaign periods. The election period shall be fixed by the Commission on Elections in accordance with Section 6, Article XII-C of the Constitution. The period of campaign shall not be more than forty- five days immediately preceding the election, excluding the day before and the day of the election: Provided, That for the election of representatives to the interim Batasang Pambansa, the period of campaign shall commence on February 17, 1978 except that no election campaign or partisan political activity may be conducted on March 23 and 24, 1978. In support of the allegation of unconstitutionality, petitioners rely on Section 6 of Article XII-C of the Constitution, thus: SEC. 6. Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter. At the outset, it should be considered that Amendment No. 1 provides that the "number of representatives from each region and the manner of their election shall be prescribed and regulated by law " (emphasis supplied). Under Amendment No. 5, "the incumbent President shall continue to exercise legislative powers until martial law shall have been lifted." The power conferred by these Amendment upon the lawmaker necessarily included the authority to prescribe the date and procedure for the holding of such elections. It should be borne in mind that the forthcoming election for members in the interim Batasang Pambansa will be a special election during a regime of martial law. It is, therefore, an election in a state of emergency. The exigencies of the situation require that it be governed by special rules. At t point, the objective is to hasten the

normalization of government and, at the same time, to ensure that the nation is not exposed to the same critical proble that necessitated the declaration of martial law. In conferring upon the incumbent President the authority to determine the date of the election, those who drafted the Amendments must have realized that it is only the incumbent President who has the authority and the means of obtaining, through the various facilities in the civil and military agencies of the government, information on the peace and order condition of the country, and to determine the period within which an electoral campaign may be adequately conducted in all the regions of the nation. Thus, the 1978 Election Code was formulated to meet a special need, and t is emphasized by the fact that the Code itself limits its application. 43 Even assuming that it should be the Commission on Elections that should fix the period for campaign, the constitutional mandate is complied with by the fact that the Commission on Elections has adopted and is enforcing the period fixed in Section 4, Article I of the 1978 Election Code. At any rate, insofar as objections to the fixing of the campaign period for elections in general are concerned, it is apparent that there is a distinction between the ter "election period" and "campaign period". Thus, Section 4, Article I of the 1978 Election Code provides that the "election period shag be fixed by the Commission on Elections in accordance with Section 6, Article XII (C) of the Constitution." The "campaign period", however, has been fixed so that "it shall not be more than forty-five days immediately preceding the election: Provided, That for the election of representatives to the interim Batasang Pambansa, the period of campaign shag commence on February 17, 1978 except that no election campaign or partisan political activity may be conducted on March 23 and 24, 1978." The distinction is further made apparent by the fact that the "election period" under Section 5 of Article XII-C of the Constitution extends even beyond the day of the election itself, while the "campaign period", by reason of its nature and purpose, must necessarily be before the elections are held. There is, therefore, no conflict with the constitutional provision. At t juncture, it may be relevant to note the efforts of the Commission on Elections to give more substance and meaning to the intent and spirit of the Constitution and the 1978 Election Code by giving the same practicable opportunities to candidates, groups or parties involved in the April 7, 1978 interim Batasang Pambansa elections. Thus, in Resolution No. 1289, the COMELEC removed the so-called undue advantage which the Nacionalista Party and the Kilusang Bagong Lipunan (KBL) had over the Lakas ng Bayan (LABAN) in ter of authorized election expenses, appointment of election watchers and use of print and broadcast media. T circutance, contrary to the clai of petitioners, shows that the Commission on Elections, as a constitutional body charged with the enforcement and administration of all laws relative to the conduct of elections, and with broad powers, functions and duties under the 1973 Constitution, can give candidates, irrespective of parties, equal opportunities under equal circutances. WHEREFORE, in view of the foregoing, the instant petitions are hereby DISMISSED, without costs. Castro, C.J., Makasiar, Aquino, Concepcion, Jr., Santos, Fernandez, and Guerrero, JJ., concur.

EN BANC G.R. No. L-26344 June 30, 1987 HAWAIIAN-PHILIPPINE COMPANY, appellant,-versus-ASOCIACION DE HACENDEROS DE SILAY-SARAVIA, INC., ARSENIO J. JISON, CONRADO MANALANSAN, in his capacity as Acting Administrator, Sugar Quota Administration, RENATO MALIJAN, LETICIA GOLEZ ARANETA, FELIX GOLEZ, TRINIDAD SONORA, JULIAN F. GONZAGA, ROMEO S. GAMBOA, AQUILES V. ASCALON, PEDRO M. SAJO, BENJAMIN SAJO, FRANCISCO SAJO, JR., JOSE H.

TANPINCO, POMPEYO H. LOPEZ, SERAFIN R. GAMBOA, EDILBERTO L. GOLEZ, GREGORIO V. ASCALON, SEVERINO DE LA CRUZ, JULIO JAVELOSA, NIMFA JAVELOSA SOLINAP, NATIVIDAD JUNTADO, OSCAR LEDESMA, CIRIO LOCSIN, GUILLERMO LOCSIN, CESAR D. CUAYCONG, JOSE D. CUAYCONG, JESUS D. CUAYCONG, EDUARDO LEDESMA, GENARO G. LEDESMA, FRANCISCA M. VDA. DE LOCSIN, RAMONA M. SOLATORIO, JESUS JALBUENA, VICTORINO FERMIN, MONTSERRAT G. VDA. DE HECHANOVA, LORETO SOLINAP, FELIX LEDESMA, ARSENIO J. JISON, FERNANDO JALBUENA, DOMINADOR C. HERNAEZ, HONORATO GAMBOA, ADRIANO L. LOCSIN, AGUINALDO S. GAMBOA, JOSE L. GOLEZ, DOROTEO S. HUGO, MANUEL S. HOFILENA, JOSEFA LACSON, ROMEO G. LACSON, GREGORIO M. SAJO, PABLO L. JISON, LUIS GAMBOA,CONCEPCION A. DE GAMBOA, AUGUSTO H. SEVERINO, TARCILA VDA. DE ARSAGON, JOSEFINA T. VDA. D E LACSON, LADISLAO SAJO, CARLOS J. JALANDONI, AQUILES SAJO, ANTONIO C. SANCHEZ, BENJAMIN L. LOCSIN, SERAFIN L. GOLEZ, ROMEO S. LEDESMA, SALVADOR J. ASCALON, MARCELINO PAVIERA, FERNANDO SOBERANO, JOSE MA. LOCSIN, JOSE C. LOCSIN, GERMAN L. UNSON, FERNANDO F. GONZAGA, EDGARDO O. LEDESMA, ALICIA SAJO MELLIZAR, ALFREDO L. NAVAS, BENJAMIN J. BAUTISTA, RODOLFO N. PISON, NATALIO G. VELEZ, AND FRANCISCO Q. MARAVILLA, RAMIRO L. GOLEZ, appellees. ASOCIACION DE HACENDEROS DE SILAY-SARAVIA, INC ET AL., appellants,-versusHAWAIIAN-PHILIPPINE COMPANY, appellee. RESOLUTION PARAS, J.: These are appeals taken by both parties from a decision of the then Court of First Instance of Manila (Branch II) in Civil Case No. 50760, * entitled, HAWAIIAN-PHILIPPINE COMPANY v. ASOCIACION DE HACENDEROS DE SILAY-SARAVIA, INC., et al., which upheld the constitutionality of Republic Acts Nos. 809, 1825 and 1072, as well as from its Order dated February 11, 1966, denying the separate motions for reconsideration filed by both parties. Hawaiian-Philippine Company, Inc. (hereinafter referred to as Central) is a corporation duly organized and existing under and by virtue of the laws of the Philippines. It owns and operates a sugar mill situated at Silay-Hawaiian Central, in the Silay-Saravia Mill District, Negros Occidental. Asociacion de Hacenderos de Silay-Saravia, Inc. (hereinafter referred to as the Association) is a corporation duly organized and existing under the laws of the Philippines and is the bargaining representative of some sugar cane planters. A plantation is adherent by virtue of sugar cane being delivered therefrom to a mill regardless of contract relations between the mill company and the plantation owner and/or any other person cultivating sugar cane on the plantation (Act 4166, Sec. 1, par. 4 [c]). The facts of this case are as follows: On March 30, 1953, Central and the association, acting in behalf of the individual sugarcane planters of the Silay-Saravia District adherent to the petitioner, entered into a memorandum agreement (Joint Record on Appeal, Vol. I, pp. 35-36) wherein it was agreed that: (a) the period of the individual milling contract shall cover twelve (12) crops up to and including the 1963-1964 crop; (b) the sharing of the sugar and molasses between the Planter and the Mill for the first six sugar crops will be 63% for the Planter and 37% for the Mill and from the seventh crop (1958-1959) up to and including the twelfth crop, (1963-1964) 36 1/2% for the Planter and 63 1/2% for the Mill; and (c) in the event that the total production for any one crop reaches 1,200,000 piculs or more, the sharing will be 64% for the Planter and 36% for the Mill. It was also agreed that the Central recognizes the Asociacion de Hacenderos de SilaySaravia or its successors in interest as the sole agent of the planters of the Silay-Saravia Mill District and that the mill binds itself not to enter into milling contracts with any

individual planter except through the Asociacion de Hacenderos de Silay-Saravia. In 1961, the Association made it known to the petitioner that respondents Jison, et al., wanted to open negotiations for a new milling contract. Central was at first reluctant to enter into any negotiation because the milling contract had still three (3) years to run, but finally acceded to the wishes of the Association, et al. In the course of the negotiations, the Association acting for the sugar planters adherent to Central, demanded a new milling contract on the basis of 70% participation for the planters and 30% for the sugar mill, and eventual purchase by the Association, et al. of the Central. At first, Central made it known to the Association et al that its majority stockholders were not willing to sell. Later, however, Central made a counter offer and expressed willingness to sell for $14,000,000.00. The planters finally agreed on the price of $14,000,000 which is well above their original offer of P30,000,000. However, they could not agree on the terms of payment and the negotiations finally collapsed. In April, 1962, the Association et al. pressed its demand for a 70-30 participation and eventual purchase of the Central and made it known to Central that unless the sale pushed through, the planters would purchase and install a new mill in the Silay-Saravia District to be operated by the sugar planters. Thereafter, the Association et al organized the Agricultural Industrial Development Company of Silay-Saravia District to be operated by the sugar planters with the primary purpose of establishing and operating a sugar mill and the utilization of its by-products, as well as the acquisition and maintenance and operation of such equipment to carry out its purposes. A 15-year milling contract starting from the 1964-1965 crop between the Agricultural Industrial Development Company of the SilaySaravia and the planters was prepared and the latter negotiated for the purchase of a sugar mill abroad. The planters then addressed a letter dated May 14, 1962 to the Acting Administrator of the Sugar Quota Administration informing him of their intention to construct and operate their own central. The Sugar Quota Administrator endorsed the said letter to the Philippine Sugar Association for its comment and recommendation CFI Joint Record on Appeal, pp. 831-833). However, before the Philippine Sugar Association could give its comment, Civil Case No. 50760, for Declaratory Relief, was filed by petitioner Hawaiian-Philippine Company, Inc. against the Asociacion de Hacenderos de Silay-Saravia, Inc., Arsenio J. Jison and other individual sugar cane planter adherent to the Central members of respondent Association in the Court of First Instance of Manila on June 20, 1962, later amended on July 27, 1962, praying for judgment: (1) Declaring Section 1 and related ones of Republic Act No. 809 and Section 4 and concordant ones of Republic Act No. 1825 unconstitutional and hence, null and void; (2) In any event, defining the rights and obligations of Central and Arsenio J. Jison, et al. and other sugar cane planters similarly situated under the statutory provisions herein referred to, more particularly declaring that, under said provisions: (a) the sugar cane planter or plantation owner is not the owner of the totality of the sugar production allowance or quota; (b) the sugar production allowance, or sugar production coefficient (totality of the quota as to each plantation) is indivisible and intransferable except as a whole and with the consent of both mill and plantation owner or planter; (c) the plantation owner or sugar cane planters can not establish a new central in a district where there is a milling contract in force and the existing central can satisfactorily meet the milling needs of planters therein; (d) the plantation owner or sugar cane planter can not transfer the production allowance and coefficient or quota to a central which did not produce sugar during the pre-war years specified under Philippine and American sugar quota legislations; (e) the plantation owner or sugar cane planter can not transfer the quota to any other central, so long as the existing central in the district is willing to grant him the sharing participations establish under Section 1 of Republic Act No. 809 in the absence of a written milling contract, assuming the constitutionality and effectiveness of said Act (Amended Petition, Joint Record on Appeal, Vol. 1, pp. 116-117). Still later on February 10, 1964, the petition was further amended reiterating the above prayer and praying further that Section 9 of Act 4166 as amended by Section 3 of R.A. 1072 be declared constitutional and that it has not been modified, repealed or replaced by Section 4 or any other provision of R.A. 1825 (Ibid, pp. 457-458). On July 30, 1965, the lower court rendered its Decision declaring the constitutionality of the assailed laws. The dispositive portion of said decision reads: WHEREFORE, judgment is hereby rendered declaring that Sections 1 and 2, Republic Act 809, Section 4, Republic Act 1825, and Section 3, Republic Act 1072, are valid and

constitutional; that the respondent planters cannot transfer their export sugar, or A and AA sugar to a central which did not produce sugar in 1940; and that the respondent planters cannot transfer their export quota, or A and AA sugar to any other central as long as the petitioner is willing to grant them the participations provided for in Section 1, Republic Act 809 in the absence of a milling contract, without pronouncement as to costs. SO ORDERED. (Joint Records on Appeal, Vol. II, p. 873) Both parties moved for the reconsideration of the above decision. With the denial of the Motion, both parties appealed. In brief, Central as appellant raised the following issues: (1) Constitutionality of: Sections 1, 4 and 9 of Republic Act 809, Sections 4 and 5 of Republic Act 1825 and Section 3 of Republic Act 1072 amending Section 9 of Act 4166, for being violative of the constitutional guarantees against impairment of the freedom of contracts, denial of equal protection of the laws, taking of private property for public use without due process and without just compensation and impairment of vested rights and (2) validity of: aforesaid laws for being violative of treaty commitments previously entered into by the Govemment of the Republic of the Philippines. On the other hand, the Association et al as appellants raised as their main issue: whether or not planters whose 1953 memorandum agreement or milling contract with petitioner has already expired with the 1963-64 Crop and have no new milling contract with Central, may validly adhere their plantations to their own central and thereby transfer the quotas attached to such plantations to the new central without the consent of petitioner Hawaiian Philippines. As incidents thereto, the Association et al raised the following qqqig issues: (a) whether or not they as planters may transfer their export and domestic quotas despite Centrals willingness to give them the participation under Republic Act 809; (b) whether or not the planters in the absence of, or upon termination of written milling contracts, establish and operate their own central, adhere their plantation thereto and transfer their quotas to the same without the consent of the old Central; (c) whether or not the export production allowance which may be transferred from one mill district to another under Section 4 of Republic Act 1825 includes not only the planter marketing allotment but also the mill marketing allotment and (d) whether or not Central, in entering into a memorandum agreement where it is required to tear down its railway tracks within two years after the expiration of the agreement, waived its absolute right to mill the planters sugarcane. The main issue raised by Central in this case is the constitutionality of the sugar laws above enumerated. The question of constitutionality of Republic Act 809 was laid to rest in the case of Asociacion de Agricultores de Talisay-Silay, Inc. vs. Talisay-Silay Milling Co., Inc. (88 SCRA 294 [1979]) where the Supreme Court squarely ruled that: Republic Act 809 is a social justice and police power measure for the promotion of labor conditions in sugar plantations, hence whatever rational degree of constraint it exerts on freedom of contract and existing contractual obligations is constitutionally permissible. Anent the indictment that Republic Act 809 violates the equal protection clause of the Constitution, the Supreme Court in ruling in favor of the constitutionality of the law, upheld the standard used by the legislature which is the amount of production in each district. Republic Act 1825 and Republic Act 1072 amending Act 4166 covering as they do the same subject, i.e. sugar production partake of the same nature as Republic Act 809 and for the same reasons as above stated, cannot be considered constitutionally objectionable. In fact, the Supreme Court ruled in Lutz v. Araneta (52 Off. Gaz., p. 1997 Nos. 4-6 [1956])

as follows: This Court can take judicial notice of the fact that sugar production is one of the great industries of our nation, sugar occupying a leading position among its export products, that it gives employment to thousands of laborers in field and factories, that it is a great source of the states wealth, is one of the important sources of foreign-exchange needed by our government, and is thus pivotal in the plans of a regime committed to a policy of currency stability. Its promotion, protection and advancement therefore, redounds greatly to the general welfare. Hence it was competent for the legislature to find that the general welfare demanded that the sugar industry should be stabilized in turn, and in the wide field of its police power, the lawmaking body could provide that the distribution of benefits therefrombereadjustedamongitscomponents. Once it is conceded as it must, that the protection and promotion of the sugar industry is a matter of public concern it follows that the legislature may determine within reasonable bounds what is necessary for its protection and expedient for its promotion. Here the legislative discretion must be allowed full play, subject only to the test of reasonableness. Republic Act 1825, Section 4 refers to the transfer of export production allowances (quota) from one mill district to another which may be done under two conditions, namely: (a) when there is no milling contract between the planter and miller or when said contract shall have expired; and (b) when the mill of the district in which the land of the planter lies is not willing to give him the participation laid down in Section one of Republic Act Numbered Eight hundred nine regarding the division of shares between the sugar mill and plantation owner. On the other hand, Section 9 of Act 4166 as amended by Republic Act 1072 refers to the transfer of domestic quotas which may be done under the sole condition of absence or expiration of a milling contract. It is Centrals view that aforesaid legislations are a deprivation of its vested rights without due process of law and without just compensation as well as a denial of equal protection of the laws. It claims that it has property rights in the sugar production allowance or quota appertaining to the Silay-Saravia Milling District which had become vested long before Republic Act 1825 went into effect. This is not correct. There is no vested right in sugar quotas, because they depend on future contingencies. And even granting that quotas can be considered as vested rights, it is beyond dispute that they, like any property rights, are subject to the regulation and control of the State under its police power. In recognition of this power of the State, the Supreme Court in Suarez v. Mt. Arayat Sugar Co., (96 Phil. 722) held that in case the central and the planter cannot agree on the disposition of the quota, it is within the competence of the Sugar Quota Administrator, now the Sugar Quota Board, to re-allocate the quota without compensation. In case the mill and the planters cannot agree, as in the case at bar, no plausible reason can be found why the State cannot legislate and provide the sharing system that will prevent an impasse which is disastrous to the sugar industry. Likewise, there can be no argument, that in the absence of a milling contract or the expiration of one, planters may transfer their quotas for domestic sugar to the AID SISA Mill established by them even without the consent of Central. On the other hand, the Association et als contention that as planters they can adhere their plantations with their corresponding quotas to the new central they established in the same district, despite Centrals willingness to give them the participation provided in Republic Act 809, is untenable. To allow this would be less than fair, eminently less than just. Finally, the memorandum agreement between the Mill and the plantation owners where the former is required to tear down its railway tracks after the expiration of the

agreement cannot be taken as a waiver of its absolute right to mill the planters sugarcane. Nowhere has it been shown that Central had abandoned its right and obligation to mill the sugarcane of the planters. On the contrary, it has manifested that it would abide by the terms of the agreed sharing basis, if the Court finds the same valid and enforceable. PREMISES CONSIDERED, the Court RESOLVED to DISMISS both appeals, and to AFFIRM the assailed decision. Yap, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Teehankee, C.J., and Fernan, JJ., took no part. EN BANC G.R. No. L-23794 February 17, 1968

ORMOC SUGAR COMPANY, INC., plaintiff-appellant, vs.THE TREASURER OF ORMOC CITY, THE MUNICIPAL BOARD OF ORMOC CITY, HON. ESTEBAN C. CONEJOS as Mayor of Ormoc City and ORMOC CITY, defendants-appellees. Ponce Enrile, Siguion Reyna, Montecillo & Belo and Teehankee, Carreon & Taada for plaintiff-appellant. Ramon O. de Veyra for defendants-appellees. BENGZON, J.P., J.: On January 29, 1964, the Municipal Board of Ormoc City passed 1 Ordinance No. 4, Series of 1964, imposing "on any and all productions of centrifugal sugar milled at the Ormoc Sugar Company, Inc., in Ormoc City a municipal tax equivalent to one per centum (1%) per export sale to the United States of America and other foreign countries." 2 Payments for said tax were made, under protest, by Ormoc Sugar Company, Inc. on March 20, 1964 for P7,087.50 and on April 20, 1964 for P5,000, or a total of P12,087.50. On June 1, 1964, Ormoc Sugar Company, Inc. filed before the Court of First Instance of Leyte, with service of a copy upon the Solicitor General, a complaint 3 against the City of Ormoc as well as its Treasurer, Municipal Board and Mayor, alleging that the afore-stated ordinance is unconstitutional for being violative of the equal protection clause (Sec. 1[1], Art. III, Constitution) and the rule of uniformity of taxation (Sec. 22[1]), Art. VI, Constitution), aside from being an export tax forbidden under Section 2287 of the Revised Administrative Code. It further alleged that the tax is neither a production nor a license tax which Ormoc City under Section 15-kk of its charter and under Section 2 of Republic Act 2264, otherwise known as the Local Autonomy Act, is authorized to impose; and that the tax amounts to a customs duty, fee or charge in violation of paragraph 1 of Section 2 of Republic Act 2264 because the tax is on both the sale and export of sugar. Answering, the defendants asserted that the tax ordinance was within defendant city's power to enact under the Local Autonomy Act and that the same did not violate the afore-cited constitutional limitations. After pre-trial and submission of the case on memoranda, the Court of First Instance, on August 6, 1964, rendered a decision that upheld the constitutionality of the ordinance and declared the taxing power of defendant chartered city broadened by the Local Autonomy Act to include all other forms of taxes, licenses or fees not excluded in its charter. Appeal therefrom was directly taken to Us by plaintiff Ormoc Sugar Company, Inc. Appellant alleges the same statutory and constitutional violations in the aforesaid taxing ordinance mentioned earlier. Section 1 of the ordinance states: "There shall be paid to the City Treasurer on any and all productions of centrifugal sugar milled at the Ormoc Sugar Company,

Incorporated, in Ormoc City, a municipal tax equivalent to one per centum (1%) per export sale to the United States of America and other foreign countries." Though referred to as a tax on the export of centrifugal sugar produced at Ormoc Sugar Company, Inc. For production of sugar alone is not taxable; the only time the tax applies is when the sugar produced is exported. Appellant questions the authority of the defendant Municipal Board to levy such an export tax, in view of Section 2287 of the Revised Administrative Code which denies from municipal councils the power to impose an export tax. Section 2287 in part states: "It shall not be in the power of the municipal council to impose a tax in any form whatever, upon goods and merchandise carried into the municipality, or out of the same, and any attempt to impose an import or export tax upon such goods in the guise of an unreasonable charge for wharfage use of bridges or otherwise, shall be void." Subsequently, however, Section 2 of Republic Act 2264 effective June 19, 1959, gave chartered cities, municipalities and municipal districts authority to levy for public purposes just and uniform taxes, licenses or fees. Anent the inconsistency between Section 2287 of the Revised Administrative Code and Section 2 of Republic Act 2264, this Court, in Nin Bay Mining Co. v. Municipality of Roxas 4 held the former to have been repealed by the latter. And expressing Our awareness of the transcendental effects that municipal export or import taxes or licenses will have on the national economy, due to Section 2 of Republic Act 2264, We stated that there was no other alternative until Congress acts to provide remedial measures to forestall any unfavorable results. The point remains to be determined, however, whether constitutional limits on the power of taxation, specifically the equal protection clause and rule of uniformity of taxation, were infringed. The Constitution in the bill of rights provides: ". . . nor shall any person be denied the equal protection of the laws." (Sec. 1 [1], Art. III) In Felwa vs. Salas, 5 We ruled that the equal protection clause applies only to persons or things identically situated and does not bar a reasonable classification of the subject of legislation, and a classification is reasonable where (1) it is based on substantial distinctions which make real differences; (2) these are germane to the purpose of the law; (3) the classification applies not only to present conditions but also to future conditions which are substantially identical to those of the present; (4) the classification applies only to those who belong to the same class. A perusal of the requisites instantly shows that the questioned ordinance does not meet them, for it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company, Inc. and none other. At the time of the taxing ordinance's enactment, Ormoc Sugar Company, Inc., it is true, was the only sugar central in the city of Ormoc. Still, the classification, to be reasonable, should be in terms applicable to future conditions as well. The taxing ordinance should not be singular and exclusive as to exclude any subsequently established sugar central, of the same class as plaintiff, for the coverage of the tax. As it is now, even if later a similar company is set up, it cannot be subject to the tax because the ordinance expressly points only to Ormoc City Sugar Company, Inc. as the entity to be levied upon. Appellant, however, is not entitled to interest; on the refund because the taxes were not arbitrarily collected (Collector of Internal Revenue v. Binalbagan). 6 At the time of collection, the ordinance provided a sufficient basis to preclude arbitrariness, the same being then presumed constitutional until declared otherwise. WHEREFORE, the decision appealed from is hereby reversed, the challenged ordinance is declared unconstitutional and the defendants-appellees are hereby ordered to refund the P12,087.50 plaintiff-appellant paid under protest. No costs. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.1wph1.t EN BANC

G.R. No. 89604 April 20, 1990 ROQUE FLORES, petitioner, vs.COMMISSION ON ELECTIONS , NOBELITO RAPISORA, respondents. Felix B. Claustro for petitioner. Romeo B. Astudillo for private respondent.

CRUZ, J.: Petitioner Roque Flores was proclaimed by the board of canvassers as having received the highest number of votes for kagawad in the elections held on 28 March 1989, in Barangay Poblacion, Tayum, Abra, and thus became punong barangay in accordance with Section 5 of Rep. Act No. 6679, providing in part as follows Sec. 5. There shall be a sangguniang barangay in every duly constituted barangay which shall be the legislative body and shall be composed of seven (7) kagawads to be elected by the registered voters of the barangay. The candidate who obtains the highest number of votes shall be the punong barangay . . . . However, his election was protested by Nobelito Rapisora, herein private respondent, who placed second in the election with 463 votes, or one vote less than the petitioner. The Municipal Circuit Trial Court of Tayum, Abra, sustained Rapisora and installed him as punong barangay in place of the petitioner after deducting two votes as stray from the latter's total. 1 Flores appealed to the Regional Trial Court of Abra, which affirmed the challenged decision in toto. Judge Francisco O. Villarta, Jr. agreed that the four votes cast for "Flores" only, without any distinguishing first name or initial, should all have been considered invalid instead of being divided equally between the petitioner and Anastacio Flores, another candidate for kagawad. The judge held that the original total credited to the petitioner was correctly reduced by 2, to 462, demoting him to second place. 2 The petitioner then went to the Commission on Elections, but his appeal was dismissed on the ground that the public respondent had no power to review the decision of the regional trial court. This ruling, embodied in its resolution dated 3 August 1989, 3 was presumably based on Section 9 of Rep. Act No. 6679, which was quoted therein in full as follows: Sec. 9. A sworn petition contesting the election of a barangay official may be filed with the proper municipal or metropolitan trial court by any candidate who has duly filed a certificate of candidacy and has been voted for a barangay office within ten (10) days after the proclamation of the result of the election. The trial court shall decide the election protest within (30) days after the filing thereof. The decision of the municipal or metropolitan trial court may be appealed within ten (10) days from receipt of a copy thereof by the aggrieved party to the regional trial court which shall decide the issue within thirty (30) days from receipt of the appeal and whose decision on questions of fact shall be final and non-appealable. For purposes of the barangay elections, no preproclamation cases shall be allowed. In this petition for certiorari, the Commission on Elections is faulted for not taking cognizance of the petitioner's appeal and for not ruling that all the four questioned votes should have been credited to him under the equity of the incumbent rule in Section 211(2) of the Omnibus Election Code. The Commission on Elections was obviously of the opinion that it could not entertain the petitioner's appeal because of the provision in Rep. Act No. 6679 that the decision of the regional trial court in a protest appealed to it from the municipal trial court in barangay

elections "on questions of fact shall be final and non-appealable." While supporting the dismissal of the appeal, the Solicitor General justifies this action on an entirely different and more significant ground, to wit, Article IX-C, Section 2(2) of the Constitution, providing that the Commission on Elections shall: (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. (Emphasis supplied.) Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. His submission is that municipal or metropolitan courts being courts of limited jurisdiction, their decisions in barangay election contests are subject to the exclusive appellate jurisdiction of the Commission on Elections under the afore-quoted section. Hence, the decision rendered by the Municipal Circuit Trial Court of Tayum, Abra, should have been appealed directly to the Commission on Elections and not to the Regional Trial Court of Abra. It is recalled that in the case of Luison v. Garcia, 4 respondent Garcia's certificate of candidacy was declared invalid by the Commission on Elections for non-compliance with the statutory requirements. What he did was appeal to the court of first instance, which held that the certificate was merely defective but not altogether null and void. Garcia continued his candidacy on the strength of this ruling and was subsequently proclaimed elected, thereafter assuming office as municipal mayor. In sustaining the quo warranto petition filed against him by Luison, this Court declared that all the votes cast for Garcia should have been rejected as stray because he did not have a valid certificate of candidacy. The action of the Commission on Elections should have been appealed not to the court of first instance but to the Supreme Court as required by the 1935 Constitution. Since this was not done, the resolution of the Commission on Elections rejecting Garcia's certificate remained valid on the date of the election and rendered all votes cast for him as stray. The doctrine in that case, although laid down under the 1935 Constitution, is still controlling under the present charter as the interpretation by this Court of Article IX-C, Section 2(2). Accordingly, Section 9 of Rep. Act No. 6679, insofar as it provides that the decision of the municipal or metropolitan court in a barangay election case should be appealed to the regional trial court, must be declared unconstitutional. We make this declaration even if the law has not been squarely and properly challenged by the petitioner. Ordinarily, the Court requires compliance with the requisites of a judicial inquiry into a constitutional question. 5 In the case at bar, however, we feel there is no point in waiting to resolve the issue now already before us until it is raised anew, probably only in the next barangay elections. The time to resolve it is now, before such elections. We shall therefore disregard the technical obstacles in the case at bar so that the flaw in Rep. Act No. 6679 may be brought to the attention of Congress and the constitutional defect in Section 9 may be corrected. In taking this step, the Court does not disregard the fact that the petitioner was only acting in accordance with the said law when he appealed the decision of the Municipal Circuit Trial Court of Tayum to the Regional Trial Court of Abra. That is what the statute specifically directed in its Section 9 which, at the time the appeal was made, was considered constitutional. The petitioner had a light to rely on its presumed validity as everyone apparently did. Even the Congress and the Executive were satisfied that the measure was constitutional when they separately approved it after careful study. Indeed, no challenge to its validity had been lodged or even hinted not even by the public respondent as to suggest to the petitioner that he was following the wrong procedure. In fairness to him therefore, we shall consider his appeal to the Commission on Elections

as having been made directly from the Municipal Circuit Trial Court of Tayum, Abra, disregarding the detour to the Regional Trial Court. Accordingly, we hold that the petitioner's appeal was validly made to the Commission on Elections under its "exclusive appellate jurisdiction over all contests. . . involving elective barangay officials decided by trial courts of limited jurisdiction." Its decision was in turn also properly elevated to us pursuant to Article IX-A, Section 7, of the Constitution, stating 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." Obviously, the provision of Article IX-C, Section 2(2) of the Constitution that "decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable" applies only to questions of fact and not of law. That provision was not intended to divest the Supreme Court of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Constitution. 6 We eschew a literal reading of that provision that would contradict such authority. The issue the petitioner was raising was one of law, viz., whether he was entitled to the benefits of the equity-of-the-incumbent rule, and so subject to our review. This issue was not resolved by the public respondent because it apparently believed itself to be without appellate jurisdiction over the decision of the Regional Trial Court of Abra. Considering that the public respondent has already manifested its position on this issue, as will appear presently, the Court will now rule upon it directly instead of adopting the roundabout way of remanding the case to the Commission on Elections before its decision is elevated to this Court. Implementing Rep. Act No. 6679, the Commission on Elections promulgated Resolution No. 2022-A providing in Section 16(3) thereof that: Incumbent Barangay Captains, whether elected, appointed or designated shall be deemed resigned as such upon the filing of their certificates of candidacy for the office of "Kagawad," which is another office, for the March 28, 1989 barangay election. This was the reason why the Municipal Circuit Trial Court of Tayum, Abra, held that the four questioned votes cast for Flores could not be credited to either Roque Flores or Anastacio Flores and should have been regarded as stray under Section 211(1) 7 of the Omnibus Election Code. Rejecting the petitioner's claim, the court held that Roque Flores was not entitled to any of the four contested votes because he was not incumbent as punong barangay (or barangay captain, as the office was formerly called) on the date of the election. The petitioner insists on the application to him of Section 211(2) of the Code, stating pertinently that: 2. . . . If there are two or more candidates with the same full name, first name or surname and one of them is the incumbent, and on the ballot is written only such full name, first name or surname, the vote shall be counted in favor of the incumbent. because he should not have been considered resigned but continued to be entitled to the office of punong barangay under Section 8 of Rep. Act No. 6679, providing as follows: Sec. 8. Incumbent elective officials running for the same office shall not be considered resigned upon the filing of then, certificates of candidacy. They shall continue to hold office until their successors shall have been elected and qualified. The petitioner contends that the afore-quoted administrative regulation is inofficious because the forfeiture prescribed is not authorized by the statute itself and beyond the intentions of the legislature. Moreover, the enforcement of the rule would lead to discrimination against the punong barangay and in favor of the other kagawads, who, unlike him, could remain in office while running for re-election and, additionally, benefit

from the equity-of-the-incumbent rule. Alternatively, the petitioner argues that, assuming the regulation to be valid he was nonetheless basically also a kagawad as he was a member of the sangguniang barangay like the other six councilmen elected with him in 1982. In fact, Section 5 of the Rep. Act No. 6679 also speaks of seven kagawads, the foremost of whom shall again be the punong barangay. He concludes that he should thus be regarded as running for the same office and therefore not considered resigned when he filed his certificate of candidacy for kagawad. The Court does not agree. It seems to us that the challenged resolution quite clearly expresses the mandate of the above-quoted Section 8 that all incumbent elected officials should not be considered resigned upon the filing of their certificates of candidacy as long as they were running for the same position. The purpose of the resolution was merely to implement this intention, which was clearly applicable not only to the ordinary members of the sangguniang barangay but also to the punong barangay. As for the questioned authority, this is found in Section 52 of the Omnibus Election Code, which empowers the public respondent to "promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is required to enforce and administer. . . ." The justification given by the resolution is that the position of punong barangay is different from that of kagawad as in fact it is. There should be no question that the punong barangay is an essentially executive officer, as the enumeration of his functions in Section 88 of the Local Government Code will readily show, unlike the kagawad, who is vested with mainly legislative functions (although he does assist the punong barangay in the administration of the barangay). Under Rep. Act No. 6679, the person who wins the highest number of votes as a kagawad becomes by operation of law the punong barangay, or the executive of the political unit. In the particular case of the petitioner, it should be noted that he was in fact not even elected in 1982 as one of the six councilmen but separately as the barangay captain. He was thus correctly deemed resigned upon his filing of a certificate of candidacy for kagawad in 1989, as this was not the position he was holding, or was incumbent in, at the time he filed such certificate. It is worth stressing that under the original procedure followed in the 1982 barangay elections, the petitioner was elected barangay captain directly by the voters, separately from the candidates running for mere membership in the sangguniang barangay. The offices of the barangay captain and councilmen were both open to the candidates, but they could run only for one or the other position and not simultaneously for both. By contrast, the candidate under the present law may aspire for both offices, but can run only for one, to wit, that of kagawad. While campaigning for this position, he may hope and actually strive to win the highest number of votes as this would automatically make him the punong barangay. In this sense, it may be said that he is a candidate for both offices. Strictly speaking, however, the only office for which he may run and for which a certificate of candidacy may be admitted is that of kagawad. It follows that the petitioner cannot insist that he was running not for kagawad only but ultimately also for punong barangay in the 28 March 1989 election. In fact, his certificate of candidacy was for kagawad and not for punong barangay. As the basic position being disputed in the barangay election was that of kagawad, that of punong barangay being conferred only by operation of law on the candidate placing first, the petitioner had to forfeit his position of punong barangay, which he was holding when he presented his candidacy for kagawad. Consequently, he cannot be credited with the four contested votes for Flores on the erroneous ground that he was still incumbent as punong barangay on the day of the election. The petitioner argues that he could not have run for reelection as punong barangay because the office was no longer subject to separate or even direct election by the voters. That may be so, but this argument goes to the wisdom of the law, not its validity,

and is better addressed to the legislature. From the strictly legal viewpoint, the statute does not offend the equal protection clause, as there are, to repeat, substantial distinctions between the offices of punong barangay and kagawad. Precisely , the reason for divesting the punong barangay of his position was to place him on the same footing as the other candidates by removing the advantages he would enjoy if he were to continue as punong barangay while running for kagawad. In sum, we hold that Section 9 of Rep. Act No. 6679 is constitutionally defective and must be struck down, but the challenged resolution must be sustained as a reasonable and valid implementation of the said statute. The petitioner was no longer the incumbent punong barangay on election day and so was not entitled to the benefits of the equity-ofthe-incumbent rule. The consequence is that the four votes claimed by him were correctly considered stray, making the private respondent the punong barangay of Poblacion, Tayum, Abra, for having received the highest number of votes for kagawad. It remains to stress that although the elections involved herein pertain to the lowest level of our political organization, this fact has not deterred the highest tribunal from taking cognizance of this case and discussing it at length in this opinion. This only goes to show that as long as a constitutional issue is at stake, even the barangay and its officers, for all their humility in the political hierarchy, deserve and will get the full attention of this Court. WHEREFORE, the petition is DISMISSED. Judgment is hereby rendered: 1. Declaring Section 9 of Rep. Act No. 6679 UNCONSTITUTIONAL insofar as it provides that barangay election contests decided by the municipal or metropolitan trial court shall be appealable to the regional trial court; 2. Declaring valid Section 16(3) of Com. Res. No. 2022-A dated January 5, 1989; and 3. Declaring private respondent Nobelito Rapisora the duly elected punong barangay of Poblacion, Tayum, Abra. No pronouncement as to costs. SO ORDERED. Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado JJ., concur. Fernan, C.J., is on leave. Republic Act No. 9372 March 6, 2007

AN ACT TO SECURE THE STATE AND PROTECT OUR PEOPLE FROM TERRORISM

SEC. 18. Period of Detention Without Judicial Warrant of Arrest. - The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the AntiTerrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act.

The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter's residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. The judge shall forthwith submit his/her report within three calendar days from the time the suspect was brought to his/her residence or office. Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest: Provided ,That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify and judge as Provided in the preceding paragraph. SEC. 19. Period of Detention in the Event of an Actual or Imminent Terrorist Attack. - In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned: Provided, however, That within three days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately. SEC. 26. Restriction on Travel. - In cases where evidence of guilt is not strong, and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety, consistent with Article III, Section 6 of the Constitution. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court. He/she may also be placed under house arrest by order of the court at his or her usual place of residence. While under house arrest, he or she may not use telephones, cellphones, e-mails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court. The restrictions abovementioned shall be terminated upon the acquittal of the accused or of the dismissal of the case filed against him or earlier upon the discretion of the court on motion of the prosecutor or of the accused.