ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners,         COMMISSION ELECTIONS, Respondent

DECISION

NACHURA, J.:

“In our predisposition to discover the ‘original intent’ of a statute, courts become the unfeeling pillars of the status quo. Little do we

realize that statutes or even constitutions are bundles of compromises thrown our way by their framers. Unless we exercise vigilance, the statute

may already be out of tune and irrelevant to our day.” It is in this light that we should address the instant case.

Before the Court is a petition for prohibition and certiorari, with prayer for the issuance of a temporary restraining order and a writ of

preliminary injunction, assailing Section 4(a) of Resolution No. 8678 of the Commission on Elections (COMELEC). In view of pressing contemporary

events, the petition begs for immediate resolution.

The Antecedents

This controversy actually stems from the law authorizing the COMELEC to use an automated election system (AES).

On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled “AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS

TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL

ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.” Section 11 thereof reads:

SEC. 11. Official Ballot.—The Commission shall prescribe the size and form of the official ballot which shall contain the titles of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position, the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed space where the chairman of the Board of Election inspectors shall affix his/her signature to authenticate the official ballot shall be provided.

Both sides of the ballots may be used when necessary. For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to

participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent capacity, except for president and vice president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice President, Senators and candidates under the Party-List System as well as petitions for registration and/or manifestation to participate in the Party-List System shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on March 27, 1998.

The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price

comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens' arms of the Commission may assign watchers in the printing, storage and distribution of official ballots.

To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the

ballot stub shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on a photocopying machine and that identification marks, magnetic strips, bar codes and other technical and security markings, are provided on the ballot.

The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every

registered voter with a provision of additional four (4) ballots per precinct.

Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting R.A. No. 9369, entitled “AN ACT AMENDING

REPUBLIC ACT NO. 8436, ENTITLED ‘AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE

MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, TO ENCOURAGE

TRANSPARENCY, CREDIBILITY, FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE BATAS PAMPANSA BLG. 881, AS

AMEMDED, REPUBLIC ACT NO. 7166 AND OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.’” Section

13 of the amendatory law modified Section 11 of R.A. No. 8436, thus:

SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as follows: “Section 15. Official Ballot.—The Commission shall prescribe the format of the electronic display and/or the size and

form of the official ballot, which shall contain the titles of the position to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Where practicable, electronic displays must be constructed to present the names of all candidates for the same position in the same page or screen, otherwise, the electronic displays must be constructed to present the entire ballot to the voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot options on all pages before completing his or her vote and to allow the voter to review and change all ballot choices prior to completing and casting his or her ballot. Under each position to be filled, the names of candidates shall be arranged alphabetically by surname and uniformly indicated using the same type size. The maiden or married name shall be listed in the official ballot, as preferred by the female candidate. Under each proposition to be vote upon, the choices should be uniformly indicated using the same font and size.

“A fixed space where the chairman of the board of election inspectors shall affix his/her signature to authenticate the

official ballot shall be provided. “For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition of

registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.

“Political parties may hold political conventions to nominate their official candidates within thirty (30) days before the

start of the period for filing a certificate of candidacy. “With respect to a paper-based election system, the official ballots shall be printed by the National Printing Office

and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizens’ arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots.

“To prevent the use of fake ballots, the Commission through the Committee shall ensure that the necessary

safeguards, such as, but not limited to, bar codes, holograms, color shifting ink, microprinting, are provided on the ballot. “The official ballots shall be printed and distributed to each city/municipality at the rate of one ballot for every

registered voter with a provision of additional three ballots per precinct.”

Pursuant to its constitutional mandate to enforce and administer election laws, COMELEC issued Resolution No. 8678, the Guidelines on

the Filing of Certificates of Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties in Connection with the May 10,

2010 National and Local Elections. Sections 4 and 5 of Resolution No. 8678 provide:

SEC. 4. Effects of Filing Certificates of Candidacy.—a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other 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.

b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of

candidacy for the same or any other elective office or position.

SEC. 5. Period for filing Certificate of Candidacy.—The certificate of candidacy shall be filed on regular days, from

November 20 to 30, 2009, during office hours, except on the last day, which shall be until midnight.

Alarmed that they will be deemed ipso facto resigned from their offices the moment they file their CoCs, petitioners Eleazar P. Quinto and

Gerino A. Tolentino, Jr., who hold appointive positions in the government and who intend to run in the coming elections, filed the instant petition

for prohibition and certiorari, seeking the declaration of the afore-quoted Section 4(a) of Resolution No. 8678 as null and void.

The Petitioners’ Contention

Petitioners contend that the COMELEC gravely abused its discretion when it issued the assailed Resolution. They aver that the advance

filing of CoCs for the 2010 elections is intended merely for the purpose of early printing of the official ballots in order to cope with time limitations.

Such advance filing does not automatically make the person who filed the CoC a candidate at the moment of filing. In fact, the law considers him a

candidate only at the start of the campaign period. Petitioners then assert that this being so, they should not be deemed ipso facto resigned from

their government offices when they file their CoCs, because at such time they are not yet treated by law as candidates. They should be considered

resigned from their respective offices only at the start of the campaign period when they are, by law, already considered as candidates.

Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed COMELEC resolution, c

ontains two conflicting provisions. These must be harmonized or reconciled to give effect to both and to arrive at a declaration that they

are not ipso facto resigned from their positions upon the filing of their CoCs.

Petitioners further posit that the provision considering them as ipso facto resigned from office upon the filing of their CoCs is

discriminatory and violates the equal protection clause in the Constitution.

The Respondent’s Arguments

On the procedural aspect of the petition, the Office of the Solicitor General (OSG), representing respondent COMELEC, argues that petitioners

have no legal standing to institute the suit. Petitioners have not yet filed their CoCs, hence, they are not yet affected by the assailed provision in

the COMELEC resolution. The OSG further claims that the petition is premature or unripe for judicial determination. Petitioners have admitted that

they are merely planning to file their CoCs for the coming 2010 elections. Their interest in the present controversy is thus merely speculative and

contingent upon the filing of the same. The OSG likewise contends that petitioners availed of the wrong remedy. They are questioning an issuance

of the COMELEC made in the exercise of the latter’s rule-making power. Certiorari under Rule 65 is then an improper remedy.

On the substantive aspect, the OSG maintains that the COMELEC did not gravely abuse its discretion in phrasing Section 4(a) of Resolution No.

8678 for it merely copied what is in the law. The OSG, however, agrees with petitioners that there is a conflict in Section 13 of R.A. No. 9369 that

should be resolved. According to the OSG, there seems to be no basis to consider appointive officials as ipso facto resigned and to require them to

vacate their positions on the same day that they file their CoCs, because they are not yet considered as candidates at that time. Further, this

“deemed resigned” provision existed in Batas Pambansa Bilang (B.P. Blg.) 881, and no longer finds a place in our present election laws with the

innovations brought about by the automated system.

Our Ruling

I.

At first glance, the petition suffers from an incipient procedural defect. What petitioners assail in their petition is a resolution issued by

the COMELEC in the exercise of its quasi-legislative power. Certiorari under Rule 65, in relation to Rule 64, cannot be availed of, because it is a

remedy to question decisions, resolutions and issuances made in the exercise of a judicial or quasi-judicial function. Prohibition is also an

inappropriate remedy, because what petitioners actually seek from the Court is a determination of the proper construction of a statute and a

declaration of their rights thereunder. Obviously, their petition is one for declaratory relief, over which this Court does not exercise original

jurisdiction.

However, petitioners raise a challenge on the constitutionality of the questioned provisions of both the COMELEC resolution and the law.

Given this scenario, the Court may step in and resolve the instant petition.

The transcendental nature and paramount importance of the issues raised and the compelling state interest involved in their early

resolution—the period for the filing of CoCs for the 2010 elections has already started and hundreds of civil servants intending to run for elective

offices are to lose their employment, thereby causing imminent and irreparable damage to their means of livelihood and, at the same time,

crippling the government’s manpower—further dictate that the Court must, for propriety, if only from a sense of obligation, entertain the petition

so as to expedite the adjudication of all, especially the constitutional, issues.

In any event, the Court has ample authority to set aside errors of practice or technicalities of procedure and resolve the merits of a case.

Repeatedly stressed in our prior decisions is the principle that the Rules were promulgated to provide guidelines for the orderly administration of

justice, not to shackle the hand that dispenses it. Otherwise, the courts would be consigned to being mere slaves to technical rules, deprived of

their judicial discretion.

II.

To put things in their proper perspective, it is imperative that we trace the brief history of the assailed provision. Section 4(a) of COMELEC

Resolution No. 8678 is a reproduction of the second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for ready reference is

quoted as follows:

For this purpose, the Commission shall set the deadline for the filing of certificate of candidacy/petition for registration/manifestation to participate in the election. Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take effect only upon the start of the aforesaid campaign period: Provided, finally, That any person holding a public appointive office or position, including active members of the armed forces, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the filing of his/her certificate of candidacy.

Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by R.A. No. 9369. The proviso was lifted from Section

66 of B.P. Blg. 881 or the Omnibus Election Code (OEC) of the Philippines, which reads:

Sec. 66. Candidates holding appointive office or position.—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.

It may be recalled—in inverse chronology—that earlier, Presidential Decree No. 1296, or the 1978 Election Code, contained a similar

provision, thus—

SECTION 29. Candidates holding appointive office or position. — Every 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 ipso facto cease in his office or position on the date he files his certificate of candidacy. Members

of the Cabinet shall continue in the offices they presently hold notwithstanding the filing of certificate of candidacy, subject to the pleasure of the President of the Philippines.

Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section 23 the following:

SECTION 23. Candidates Holding Appointive Office or Position. — Every person holding a public appointive office or position, including active members of the Armed Forces of the Philippines and every officer or employee in government-owned or controlled corporations, shall ipso facto cease in his office or position on the date he files his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which he may have incurred.

Going further back in history, R.A. No. 180, or the Revised Election Code approved on June 21, 1947, also provided that—

SECTION 26. Automatic cessation of appointive officers and employees who are candidates. — Every person holding a public appointive office or position shall ipso facto cease in his office or position on the date he files his certificate of candidacy.

During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled “AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR

PRESIDENT AND VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE

NECESSARY FUNDS THEREFOR,” approved on January 5, 1946, contained, in the last paragraph of its Section 2, the following:

A person occupying any civil office by appointment in the government or any of its political subdivisions or agencies or government-owned or controlled corporations, whether such office by appointive or elective, shall be considered to have resigned from such office from the moment of the filing of such certificate of candidacy.

Significantly, however, C.A. 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,”

enacted without executive approval on June 22, 1941, the precursor of C.A. No. 725, only provided for automatic resignation of elective, but not

appointive, officials.

Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in its Section 22, the same verbatim provision as

Section 26 of R.A. No. 180.

The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law enacted by the Philippine Commission in 1907, the

last paragraph of Section 29 of which reads:

Sec. 29. Penalties upon officers.— x x x. No public officer shall offer himself as a candidate for election, nor shall he be eligible during the time that he holds

said public office to election, at any municipal, provincial or Assembly election, except for reelection to the position which he may be holding, and no judge of the Court of First Instance, justice of the peace, provincial fiscal, or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take any part in any municipal, provincial, or Assembly election under penalty of being deprived of his office and being disqualified to hold any public office whatever for a term of five years: Provided, however, That the foregoing provisions shall not be construed to deprive any person otherwise qualified of the right to vote at any election.

From this brief historical excursion, it may be gleaned that the second proviso in the third paragraph of Section 13 of R.A. No. 9369— that

any person holding a public appointive office or position, including active members of the armed forces, and officers, and employees in government-

owned or controlled corporations, shall be considered ipso facto resigned from his/her office and must vacate the same at the start of the day of the

filing of his/her certificate of candidacy—traces its roots to the period of the American occupation.

In fact, during the deliberations of Senate Bill No. 2231, the bill later to be consolidated with House Bill No. 5352 and enacted as R.A. No.

9369, Senator Richard Gordon, the principal author of the bill, acknowledged that the said proviso in the proposed legislative measure is an old

provision which was merely copied from earlier existing legislation, thus—

Senator Osmeña. May I just opine here and perhaps obtain the opinion of the good Sponsor. This reads like, “ANY PERSON HOLDING [means currently] A PUBLIC APPOINTIVE POSITION… SHALL BE CONSIDERED IPSO FACTO RESIGNED” [which means that the prohibition extends only to appointive officials] “INCLUDING ACTIVE MEMBERS OF THE ARMED FORCES, OFFICERS AND EMPLOYEES”… This is a prohibition, Mr. President. This means if one is chairman of SSS or PDIC, he is deemed ipso facto resigned when he files his certificate of candidacy. Is that the intention? Senator Gordon. This is really an old provision, Mr. President. Senator Osmeña. It is in bold letters, so I think it was a Committee amendment. Senator Gordon. No, it has always been there. Senator Osmeña. I see. Senator Gordon. I guess the intention is not to give them undue advantage, especially certain people. Senator Osmeña. All right.

In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her concern over the inclusion of the said provision in

the new law, given that the same would be disadvantageous and unfair to potential candidates holding appointive positions, while it grants a

consequent preferential treatment to elective officials, thus—

Senator Santiago. On page 15, line 31, I know that this is a losing cause, so I make this point more as a matter of record than of any feasible hope that it can possibly be either accepted or if we come to a division of the House, it will be upheld by the majority. I am referring to page 15, line 21. The proviso begins: “PROVIDED FINALLY, THAT ANY PERSON HOLDING A PUBLIC APPOINTIVE OFFICE…SHALL BE CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER OFFICE.” The point that I made during the appropriate debate in the past in this Hall is that there is, for me, no valid reason for exempting elective officials from this inhibition or disqualification imposed by the law. If we are going to consider appointive officers of the government, including AFP members and officers of government-owned and controlled corporations, or any other member of the appointive sector of the civil service, why should it not apply to the elective sector for, after all, even senators and congressmen are members of the civil service as well? Further, it is self-serving for the Senate, or for the Congress in general, to give an exception to itself which is not available to other similarly situated officials of government. Of course, the answer is, the reason why we are special is that we are elected. Since we are imposing a disqualification on all other government officials except ourselves, I think, it is the better part of delicadeza to inhibit ourselves as well, so that if we want to stay as senators, we wait until our term expires. But if we want to run for some other elective office during our term, then we have to be considered resigned just like everybody else. That is my proposed amendment. But if it is unacceptable to the distinguished Sponsor, because of sensitivity to the convictions of the rest of our colleagues, I will understand. Senator Gordon. Mr. President, I think the suggestion is well-thought of. It is a good policy. However, this is something that is already in the old law which was upheld by the Supreme court in a recent case that the rider was not upheld and that it was valid.

The obvious inequality brought about by the provision on automatic resignation of appointive civil servants must have been the reason

why Senator Recto proposed the inclusion of the following during the period of amendments: “ANY PERSON WHO FILES HIS CERTIFICATE OF

CANDIDACY WITHIN THIS PERIOD SHALL ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN PERIOD FOR WHICH HE FILED

HIS COC.” The said proviso seems to mitigate the situation of disadvantage afflicting appointive officials by considering persons who filed their CoCs

as candidates only at the start of the campaign period, thereby, conveying the tacit intent that persons holding appointive positions will only be

considered as resigned at the start of the campaign period when they are already treated by law as candidates.

Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A. No. 8436 contained a similar provision on

automatic resignation of elective officials upon the filing of their CoCs for any office other than that which they hold in a permanent capacity or for

President or Vice-President. However, with the enactment of R.A. No. 9006, or the Fair Election Act, in 2001, this provision was repealed by Section

14 of the said act. There was, thus, created a situation of obvious discrimination against appointive officials who were deemed ipso facto resigned

from their offices upon the filing of their CoCs, while elective officials were not.

This situation was incidentally addressed by the Court in Fariñas v. The Executive Secretary when it ruled that—

Section 14 of Rep. Act No. 9006Is Not Violative of the EqualProtection Clause of the Constitution

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 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-a-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.

However, it must be remembered that the Court, in Fariñas, was intently focused on the main issue of whether the repealing clause in

the Fair Election Act was a constitutionally proscribed rider, in that it unwittingly failed to ascertain with stricter scrutiny the impact of the retention

of the provision on automatic resignation of persons holding appointive positions (Section 66) in the OEC, vis-à-vis the equal protection clause.

Moreover, the Court’s vision in Fariñas was shrouded by the fact that petitioners therein, Fariñas et al., never posed a direct challenge to the

constitutionality of Section 66 of the OEC. Fariñas et al. rather merely questioned, on constitutional grounds, the repealing clause, or Section 14 of

the Fair Election Act. The Court’s afore-quoted declaration in Fariñas may then very well be considered as an obiter dictum.

III.

The instant case presents a rare opportunity for the Court, in view of the constitutional challenge advanced by petitioners, once and for

all, to settle the issue of whether the second proviso in the third paragraph of Section 13 of R.A. No. 9369, a reproduction of Section 66 of the OEC,

which, as shown above, was based on provisions dating back to the American occupation, is violative of the equal protection clause.

But before delving into the constitutional issue, we shall first address the issues on legal standing and on the existence of an actual

controversy.

Central to the determination of locus standi is the question of whether a party has alleged such a personal stake in the outcome of the

controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for

illumination of difficult constitutional questions. In this case, petitioners allege that they will be directly affected by COMELEC Resolution No. 8678

for they intend, and they all have the qualifications, to run in the 2010 elections. The OSG, for its part, contends that since petitioners have not yet

filed their CoCs, they are not yet candidates; hence, they are not yet directly affected by the assailed provision in the COMELEC resolution.

The Court, nevertheless, finds that, while petitioners are not yet candidates, they have the standing to raise the constitutional challenge,

simply because they are qualified voters. A restriction on candidacy, such as the challenged measure herein, affects the rights of voters to choose

their public officials. The rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always

have at least some theoretical, correlative effect on voters. The Court believes that both candidates and voters may challenge, on grounds of equal

protection, the assailed measure because of its impact on voting rights.

In any event, in recent cases, this Court has relaxed the stringent direct injury test and has observed a liberal policy allowing ordinary

citizens, members of Congress, and civil organizations to prosecute actions involving the constitutionality or validity of laws, regulations and rulings.

We have also stressed in our prior decisions that the exercise by this Court of judicial power is limited to the determination and

resolution of actual cases and controversies. The Court, in this case, finds that an actual case or controversy exists between the petitioners and the

COMELEC, the body charged with the enforcement and administration of all election laws. Petitioners have alleged in a precise manner that they

would engage in the very acts that would trigger the enforcement of the provision—they would file their CoCs and run in the 2010 elections. Given

that the assailed provision provides for ipso facto resignation upon the filing of the CoC, it cannot be said that it presents only a speculative or

hypothetical obstacle to petitioners’ candidacy.

IV.

Having hurdled what the OSG posed as obstacles to judicial review, the Court now delves into the constitutional challenge.

It is noteworthy to point out that the right to run for public office touches on two fundamental freedoms, those of expression and of

association. This premise is best explained in Mancuso v. Taft, viz.:

Freedom of expression guarantees to the individual the opportunity to write a letter to the local newspaper, speak out in a public park, distribute handbills advocating radical reform, or picket an official building to seek redress of grievances. All of these activities are protected by the First Amendment if done in a manner consistent with a narrowly defined concept of public order and safety. The choice of means will likely depend on the amount of time and energy the individual wishes to expend and on his perception as to the most effective method of projecting his message to the public. But interest and commitment are evolving phenomena. What is an effective means for protest at one point in time may not seem so effective at a later date. The dilettante who participates in a picket line may decide to devote additional time and resources to his expressive activity. As his commitment increases, the means of effective expression changes, but the expressive quality remains constant. He may decide to lead the picket line, or to publish the newspaper. At one point in time he may decide that the most effective way to give expression to his views and to get the attention of an appropriate audience is to become a candidate for public office-means generally considered among the most appropriate for those desiring to effect change in our governmental

systems. He may seek to become a candidate by filing in a general election as an independent or by seeking the nomination of a political party. And in the latter instance, the individual's expressive activity has two dimensions: besides urging that his views be the views of the elected public official, he is also attempting to become a spokesman for a political party whose substantive program extends beyond the particular office in question. But Cranston has said that a certain type of its citizenry, the public employee, may not become a candidate and may not engage in any campaign activity that promotes himself as a candidate for public office. Thus the city has stifled what may be the most important expression an individual can summon, namely that which he would be willing to effectuate, by means of concrete public action, were he to be selected by the voters.

It is impossible to ignore the additional fact that the right to run for office also affects the freedom to associate. In

Williams v. Rhodes, supra, the Court used strict review to invalidate an Ohio election system that made it virtually impossible for third parties to secure a place on the ballot. The Court found that the First Amendment protected the freedom to associate by forming and promoting a political party and that that freedom was infringed when the state effectively denied a party access to its electoral machinery. The Cranston charter provision before us also affects associational rights, albeit in a slightly different way. An individual may decide to join or participate in an organization or political party that shares his beliefs. He may even form a new group to forward his ideas. And at some juncture his supporters and fellow party members may decide that he is the ideal person to carry the group's standard into the electoral fray. To thus restrict the options available to political organization as the Cranston charter provision has done is to limit the effectiveness of association; and the freedom to associate is intimately related with the concept of making expression effective. Party access to the ballot becomes less meaningful if some of those selected by party machinery to carry the party's programs to the people are precluded from doing so because those nominees are civil servants.

Whether the right to run for office is looked at from the point of view of individual expression or associational

effectiveness, wide opportunities exist for the individual who seeks public office. The fact of candidacy alone may open previously closed doors of the media. The candidate may be invited to discuss his views on radio talk shows; he may be able to secure equal time on television to elaborate his campaign program; the newspapers may cover his candidacy; he may be invited to debate before various groups that had theretofore never heard of him or his views. In short, the fact of candidacy opens up a variety of communicative possibilities that are not available to even the most diligent of picketers or the most loyal of party followers. A view today, that running for public office is not an interest protected by the First Amendment, seems to us an outlook stemming from an earlier era when public office was the preserve of the professional and the wealthy. Consequently we hold that candidacy is both a protected First Amendment right and a fundamental interest. Hence any legislative classification that significantly burdens that interest must be subjected to strict equal protection review.

Here, petitioners’ interest in running for public office, an interest protected by Sections 4 and 8 of Article III of the Constitution, is breached

by the proviso in Section 13 of R.A. No. 9369. It is now the opportune time for the Court to strike down the said proviso for being violative of the

equal protection clause and for being overbroad.

In considering persons holding appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not considering as

resigned all other civil servants, specifically the elective ones, the law unduly discriminates against the first class. The fact alone that there is

substantial distinction between those who hold appointive positions and those occupying elective posts, does not justify such differential

treatment.

In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal protection,

it is necessary that the four (4) requisites of valid classification be complied with, namely:

(1) It must be based upon substantial distinctions;

(2) It must be germane to the purposes of the law;

(3) It must not be limited to existing conditions only; and

(4) It must apply equally to all members of the class.

The first requirement means that there must be real and substantial differences between the classes treated differently. As illustrated in

the fairly recent Mirasol v. Department of Public Works and Highways, a real and substantial distinction exists between a motorcycle and other

motor vehicles sufficient to justify its classification among those prohibited from plying the toll ways. Not all motorized vehicles are created equal—

a two-wheeled vehicle is less stable and more easily overturned than a four-wheel vehicle.

Nevertheless, the classification would still be invalid if it does not comply with the second requirement—if it is not germane to the

purpose of the law. Justice Isagani A. Cruz (Ret.), in his treatise on constitutional law, explains,

The classification, even if based on substantial distinctions, will still be invalid if it is not germane to the purpose of the law. To illustrate, the accepted difference in physical stamina between men and women will justify the prohibition of the latter from employment as miners or stevedores or in other heavy and strenuous work. On the basis of this same classification, however, the law cannot provide for a lower passing average for women in the bar examinations because physical strength is not the test for admission to the legal profession. Imported cars may be taxed at a higher rate than locally assembled automobiles for the protection of the national economy, but their difference in origin is no justification for treating them differently when it comes to punishing violations of traffic regulations. The source of the vehicle has no relation to the observance of these rules.

The third requirement means that the classification must be enforced not only for the present but as long as the problem sought to be

corrected continues to exist. And, under the last requirement, the classification would be regarded as invalid if all the members of the class are not

treated similarly, both as to rights conferred and obligations imposed.

Applying the four requisites to the instant case, the Court finds that the differential treatment of persons holding appointive offices as

opposed to those holding elective ones is not germane to the purposes of the law.

The obvious reason for the challenged provision is to prevent the use of a governmental position to promote one’s candidacy, or even to

wield a dangerous or coercive influence on the electorate. The measure is further aimed at promoting the efficiency, integrity, and discipline of the

public service by eliminating the danger that the discharge of official duty would be motivated by political considerations rather than the welfare of

the public. The restriction is also justified by the proposition that the entry of civil servants to the electoral arena, while still in office, could result in

neglect or inefficiency in the performance of duty because they would be attending to their campaign rather than to their office work.

If we accept these as the underlying objectives of the law, then the assailed provision cannot be constitutionally rescued on the ground of

valid classification. Glaringly absent is the requisite that the classification must be germane to the purposes of the law. Indeed, whether one holds

an appointive office or an elective one, the evils sought to be prevented by the measure remain. 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 CoCs 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.

As to the danger of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the inverse could be just

as true and compelling. The public officer who files his certificate of candidacy would be driven by a greater impetus for excellent performance to

show his fitness for the position aspired for.

Mancuso v. Taft, cited above, explains that the measure on automatic resignation, which restricts the rights of civil servants to run for office—

a right inextricably linked to their freedom of expression and association, is not reasonably necessary to the satisfaction of the state interest. Thus,

in striking down a similar measure in the United States, Mancuso succinctly declares—

In proceeding to the second stage of active equal protection review, however, we do see some contemporary relevance of the Mitchell decision. National Ass'n of Letter Carriers, supra. In order for the Cranston charter provision to withstand strict scrutiny, the city must show that the exclusion of all government employees from candidacy is necessary to

achieve a compelling state interest. And, as stated in Mitchell and other cases dealing with similar statutes, see Wisconsin State Employees, supra; Broadrick, supra, government at all levels has a substantial interest in protecting the integrity of its civil service. It is obviously conceivable that the impartial character of the civil service would be seriously jeopardized if people in positions of authority used their discretion to forward their electoral ambitions rather than the public welfare. Similarly if a public employee pressured other fellow employees to engage in corrupt practices in return for promises of post-election reward, or if an employee invoked the power of the office he was seeking to extract special favors from his superiors, the civil service would be done irreparable injury. Conversely, members of the public, fellow-employees, or supervisors might themselves request favors from the candidate or might improperly adjust their own official behavior towards him. Even if none of these abuses actually materialize, the possibility of their occurrence might seriously erode the public's confidence in its public employees. For the reputation of impartiality is probably as crucial as the impartiality itself; the knowledge that a clerk in the assessor's office who is running for the local zoning board has access to confidential files which could provide “pressure” points for furthering his campaign is destructive regardless of whether the clerk actually takes advantage of his opportunities. For all of these reasons we find that the state indeed has a compelling interest in maintaining the honesty and impartiality of its public work force.

We do not, however, consider the exclusionary measure taken by Cranston-a flat prohibition on office-seeking of all

kinds by all kinds of public employees-as even reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out in Dunn v. Blumstein, “[s]tatutes affecting constitutional rights must be drawn with ‘precision.’” For three sets of reasons we conclude that the Cranston charter provision pursues its objective in a far too heavy-handed manner and hence must fall under the equal protection clause. First, we think the nature of the regulation-a broad prophylactic rule-may be unnecessary to fulfillment of the city's objective. Second, even granting some sort of prophylactic rule may be required, the provision here prohibits candidacies for all types of public office, including many which would pose none of the problems at which the law is aimed. Third, the provision excludes the candidacies of all types of public employees, without any attempt to limit exclusion to those employees whose positions make them vulnerable to corruption and conflicts of interest.

There is thus no valid justification to treat appointive officials differently from the elective ones. The classification simply fails to meet the

test that it should be germane to the purposes of the law. The measure encapsulated in the second proviso of the third paragraph of Section 13 of

R.A. No. 9369 and in Section 66 of the OEC violates the equal protection clause.

V.

The challenged provision also suffers from the infirmity of being overbroad.

First, the provision pertains to all civil servants holding appointive posts without distinction as to whether they occupy high positions in

government or not. Certainly, a utility worker in the government will also be considered as ipso facto resigned once he files his CoC for the 2010

elections. This scenario is absurd for, indeed, it is unimaginable how he can use his position in the government to wield influence in the political

world.

While it may be admitted that most appointive officials who seek public elective office are those who occupy relatively high positions in

government, laws cannot be legislated for them alone, or with them alone in mind. For the right to seek public elective office is universal, open and

unrestrained, subject only to the qualification standards prescribed in the Constitution and in the laws. These qualifications are, as we all know,

general and basic so as to allow the widest participation of the citizenry and to give free rein for the pursuit of one’s highest aspirations to public

office. Such is the essence of democracy.

Second, the provision is directed to the activity of seeking any and all public offices, whether they be partisan or nonpartisan in character,

whether they be in the national, municipal or barangay level. Congress has not shown a compelling state interest to restrict the fundamental right

involved on such a sweeping scale.

Specific evils require specific treatments, not through overly broad measures that unduly restrict guaranteed freedoms of the citizenry.

After all, sovereignty resides in the people, and all governmental power emanates from them.

Mancuso v. Taft, on this point, instructs—

As to approaches less restrictive than a prophylactic rule, there exists the device of the leave of absence. Some

system of leaves of absence would permit the public employee to take time off to pursue his candidacy while assuring him his old job should his candidacy be unsuccessful. Moreover, a leave of absence policy would eliminate many of the opportunities for engaging in the questionable practices that the statute is designed to prevent. While campaigning, the candidate would feel no conflict between his desire for election and his publicly entrusted discretion, nor any conflict between his efforts to persuade the public and his access to confidential documents. But instead of adopting a reasonable leave of absence policy, Cranston has chosen a provision that makes the public employee cast off the security of hard-won public employment should he desire to compete for elected office.

The city might also promote its interest in the integrity of the civil service by enforcing, through dismissal, discipline,

or criminal prosecution, rules or statutes that treat conflict of interests, bribery, or other forms of official corruption. By thus attacking the problem directly, instead of using a broad prophylactic rule, the city could pursue its objective without unduly burdening the First Amendment rights of its employees and the voting rights of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an analogous question when the State of Tennessee asserted that the interest of “ballot box purity” justified its imposition of one year and three month residency requirements before a citizen could vote. Justice Marshall stated, inter alia, that Tennessee had available a number of criminal statutes that could be used to punish voter fraud without unnecessary infringement on the newcomer's right to vote. Similarly, it appears from the record in this case that the Cranston charter contains some provisions that might be used against opportunistic public employees.

Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put much effort into tailoring a

narrow provision that attempts to match the prohibition with the problem. The charter forbids a Cranston public employee from running for any office, anywhere. The prohibition is not limited to the local offices of Cranston, but rather extends to statewide offices and even to national offices. It is difficult for us to see that a public employee running for the United States Congress poses quite the same threat to the civil service as would the same employee if he were running for a local office where the contacts and information provided by his job related directly to the position he was seeking, and hence where the potential for various abuses was greater. Nor does the Cranston charter except the public employee who works in Cranston but aspires to office in another local jurisdiction, most probably his town of residence. Here again the charter precludes candidacies which can pose only a remote threat to the civil service. Finally, the charter does not limit its prohibition to partisan office-seeking, but sterilizes also those public employees who would seek nonpartisan elective office. The statute reviewed in Mitchell was limited to partisan political activity, and since that time other courts have found the partisan-nonpartisan distinction a material one. See Kinnear, supra; Wisconsin State Employees, supra; Gray v. Toledo, supra. While the line between nonpartisan and partisan can often be blurred by systems whose true characters are disguised by the names given them by their architects, it seems clear 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 to warrant distinctive treatment in a charter of this sort.

The third and last area of excessive and overinclusive coverage of the Cranston charter relates not to the type of

office sought, but to the type of employee seeking the office. As Justice Douglas pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556, restrictions on administrative employees who either participate in decision-making or at least have some access to information concerning policy matters are much more justifiable than restrictions on industrial employees, who, but for the fact that the government owns the plant they work in, are, for purposes of access to official information, identically situated to all other industrial workers. Thus, a worker in the Philadelphia mint could be distinguished from a secretary in an office of the Department of Agriculture; so also could a janitor in the public schools of Cranston be distinguished from an assistant comptroller of the same city. A second line of distinction that focuses on the type of employee is illustrated by the cases of Kinnear and Minielly, supra. In both of these cases a civil service deputy decided to run for the elected office of sheriff. The courts in both cases felt that the no-candidacy laws in question were much too broad and indicated that perhaps the only situation sensitive enough to justify a flat rule was one in which an inferior in a public office electorally challenged his immediate superior. Given all these considerations, we think Cranston has not given adequate attention to the problem of narrowing the terms of its charter to deal with the specific kinds of conflict-of-interest problems it seeks to avoid.

We also do not find convincing the arguments that after-hours campaigning will drain the energy of the public

employee to the extent that he is incapable of performing his job effectively and that inevitable on-the-job campaigning and discussion of his candidacy will disrupt the work of others. Although it is indisputable that the city has a compelling interest in the performance of official work, the exclusion is not well-tailored to effectuate that interest. Presumably the city could fire the individual if he clearly shirks his employment responsibilities or disrupts the work of others. Also, the efficiency rationale common to both arguments is significantly underinclusive. It applies equally well to a number of non-political, extracurricular activities that are not prohibited by the Cranston charter. Finally, the connection between after-hours campaigning and the state interest seems tenuous; in many cases a public employee would be able to campaign aggressively and still continue to do his job well.

Incidentally, Clements v. Fashing sustained as constitutional a provision on the automatic resignation of District Clerks, County Clerks,

County Judges, County Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and Animals, County Commissioners, Justices

of the Peace, Sheriffs, Assessors and Collectors of Taxes, District Attorneys, County Attorneys, Public Weighers, and Constables if they announce

their candidacy or if they become candidates in any general, special or primary election.

In Clements, it may be readily observed that a provision treating differently particular officials, as distinguished from all others, under a

classification that is germane to the purposes of the law, merits the stamp of approval from American courts. Not, however, a general and

sweeping provision, and more so one violative of the second requisite for a valid classification, which is on its face unconstitutional.

On a final note, it may not be amiss to state that 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 and, thus, uphold fundamental liberties over age-

old, but barren, restrictions to such freedoms.

WHEREFORE, premises considered, the petition is GRANTED. The second proviso in the third paragraph of Section 13 of Republic Act No.

9369, Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678 are declared as UNCONSTITUTIONAL.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

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-IN-FACT, 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.

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G.R. No. 159007

ESTRELLITA C. AMPONIN, JUDITH A. CUDAL, ROMEO A. PAGALAN, MARISSA F. PARIÑAS, 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.

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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.

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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.

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G.R. No. 172713

NATIONAL HOUSING AUTHORITY, Petitioner, vs.EPIFANIO P. RECANA, MERCEDES AMURAO, ERASMO APOSTOL, FLORENDO ASUNCION, FIORELLO JOSEFINA BALTAZAR, ET AL., Respondents.

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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.

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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.

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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.

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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,

D E C I S I O N

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 Court’s 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 Court’s 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 Malacañang 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 authorized under the General Appropriations Act and Section 33 of P.D. 807.

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 common—they 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 Villareña 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 employee’s 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 employee’s 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. 06-4-02-SB.

SO ORDERED.

ROBERTO A. ABADAssociate Justice

WE CONCUR:

Republic of the PhilippinesSUPREME COURT

Manila

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.

D E C I S I O N

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 Philippine-registered 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 people’s 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 non-commercial 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 SLCO’s 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 prohibitum–or 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 people’s 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

WE CONCUR:

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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 in which the respective provincial boards have provided for the salary of a probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.)

In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void in so far as it undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make the sale of it in violation of the proclamation a crime. (See and cf. Compañia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R. C. L., pp. 177-179.)

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

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

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

It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the legislature. It is true that laws may be made effective on certain contingencies, as by proclamation of the executive or the adoption by the people of a particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is a mental process common to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup.

Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority on account of the complexity arising from social and economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in the following language — speaking of declaration of legislative power to administrative agencies: "The principle which permits the legislature to provide that the administrative agent may determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the legislature. In other words, the legislature, as it its duty to do, determines that, under given circumstances, certain executive or administrative action is to be taken, and that, under other circumstances, different of no action at all is to be taken. What is thus left to the administrative official is not the legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require to be done according to the terms of the law by which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies leaving to some other person or body the power to determine when the specified contingencies has arisen. But, in the case at bar, the legislature has not made the operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by the provincial board. It leaves, as we have already said, the entire operation or non-operation of the law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A provincial board need not investigate conditions or find any fact, or await the happening of any specified contingency. It is bound by no rule, — limited by no principle of expendiency announced by the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at its pleasure. The fact that at some future time — we cannot say when — the provincial boards may appropriate funds for the salaries of probation officers and thus put the law into operation in the various provinces will not save the statute. The time of its taking into effect, we reiterate, would yet be based solely upon the will of the provincial boards and not upon the happening of a certain specified contingency, or upon the ascertainment of certain facts or conditions by a person or body other than legislature itself.

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

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

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

To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals wounded by it for the damages without proving a knowledge of it vicious disposition. By a provision of the act, power was given to the board of supervisors to determine whether or not during the current year their county should be governed by the provisions of the act of which that section constituted a part. It was held that the legislature could not confer that power. The court observed that it could no more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the statute of limitations.

(Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system contained a provision that "if the county court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be enforce in their county. The act does not submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation within the county; but it became by its own terms a law in every county not excepted by name in the act. It did not, then, require the county court to do any act in order to give it effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of previous laws, the county court is . . . empowered, to suspend this act and revive the repealed provisions of the former act. When the question is before the county court for that tribunal to determine which law shall be in force, it is urge before us that the power then to be exercised by the court is strictly legislative power, which under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented in the abstract; for the county court of Saline county, after the act had been for several months in force in that county, did by order suspend its operation; and during that suspension the offense was committed which is the subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)

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

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

We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority to the provincial boards and is, for this reason, unconstitutional and void.

3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.)

This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our government and on the subordinate instrumentalities and subdivision thereof, and on many constitutional power, like the police power, taxation and eminent domain. The equal protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a denial of the equal protection of the laws in a question not always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.)

In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative power, although perhaps this is not necessarily the result in every case. Adopting the example given by one of the counsel for the petitioners in the course of his oral argument, one province may appropriate the necessary fund to defray the salary of a probation officer, while another province may refuse or fail to do so. In such a case, the Probation Act would be in operation in the former province but not in the latter. This means that a person otherwise coming within the purview of the law would be liable to enjoy the benefits of probation in one province while another person similarly situated in another province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation officers in their respective provinces, in which case no inequality would result for the obvious reason that probation would be in operation in each and every province by the affirmative action of appropriation by all the provincial boards. On that hypothesis, every person coming within the purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province, through its provincial board, should appropriate any amount for the salary of the probation officer — which is the situation now — and, also, if we accept the contention that, for the purpose of the Probation Act, the City of Manila should be considered as a province and that the municipal board of said city has not made any appropriation for the salary of the probation officer. These different situations suggested show, indeed, that while inequality may result in the application of the law and in the conferment of the benefits therein provided, inequality is not in all cases the necessary result. But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in which discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities requiring actual denial of the equal protection of the law before court should assume the task of setting aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that account bad. We see no difference between a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may said Act be in force in one or several provinces and not be in force in other provinces, but one province may appropriate for the salary of the probation officer of a given year — and have probation during that year — and thereafter decline to make further appropriation, and have no probation is subsequent years. While this situation goes rather to the abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in a government of laws, and to prove how easy it is, under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net

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

Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the constitution of Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court, except those in certain counties for which counties the constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision complained of, then, is found in the constitution itself and it is the constitution that makes the apportionment of territorial jurisdiction.

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

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

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

. . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in so far independent of the invalid portion that it is fair to presume that the Legislative would have enacted it by itself if they had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated without causing results affecting the main purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will, independently of the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which the respective provincial boards provided for the salaries of probation officers were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our opinion, is inseparably linked with the other portions of the Act that with the elimination of the section what would be left is the bare idealism of the system, devoid of any practical benefit to a large number of people who may be deserving of the intended beneficial result of that system. The clear policy of the law, as may be gleaned from a careful examination of the whole context, is to make the application of the system dependent entirely upon the affirmative action of the different provincial boards through appropriation of the salaries for probation officers at rates not lower than those provided for provincial fiscals. Without such action on the part of the various boards, no probation officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is divided or subdivided into provinces and it needs no argument to show that if not one of the provinces — and this is the actual situation now — appropriate the necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There can be no probation without a probation officer. Neither can there be a probation officer without the probation system.

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

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

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

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

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

(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or locality;

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

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

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

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

designated by the Secretary of Justice shall act as parole officer of persons released on parole under Act Number Forty-one Hundred and Three, without additional compensation."

It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10 of Act which provides as follows:

There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office under the direction of a Chief Probation Officer to be appointed by the Governor-General with the advise and consent of the Senate who shall receive a salary of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint probation officers and the administrative personnel of the probation officer under civil service regulations from among those who possess the qualifications, training and experience prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation officers and administrative personnel until such positions shall have been included in the Appropriation Act.

But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis, that the probation officers referred to in section 10 above-quoted are to act as such, not in the various provinces, but in the central office known as the Probation Office established in the Department of Justice, under the supervision of the Chief Probation Officer. When the law provides that "the probation officer" shall investigate and make reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation (sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a particular province. It never could have been intention of the legislature, for instance, to require the probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a probation officer in Manila to visit the probationer in the said province of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to perform such other functions as are assigned to him by law.

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

Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the salaries of probation officers in the provinces but to make the provinces defray them should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation officers in the central office at Manila. These probation officers are to receive such compensations as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers in the provinces or later on to include said salaries in an appropriation act. Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other things, the salaries of the administrative personnel of the Probation Office, what would be left of the amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do not think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in each province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the contention that without section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in our case there can be a system of probation in the provinces without probation officers.

Probation as a development of a modern penology is a commendable system. Probation laws have been enacted, here and in other countries, to permit what modern criminologist call the "individualization of the punishment", the adjustment of the penalty to the character of the criminal and the circumstances of his particular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The benefit to the individual convict is merely incidental. But while we believe that probation is commendable as a system and its implantation into the Philippines should be welcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental law.

In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for both parties, as well in their memorandums as in their oral argument. We have examined the cases brought to our attention, and others we have been able to reach in the short time at our command for the study and deliberation of this case. In the examination of the cases and in then analysis of the legal principles involved we have inclined to adopt the line of action which in our opinion, is supported better reasoned authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain

adjudicated cases brought to our attention, except where the point or principle is settled directly or by clear implication by the more authoritative pronouncements of the Supreme Court of the United States. This line of approach is justified because:

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

(b) The situation of s state of the American Union of the District of Columbia with reference to the Federal Government of the United States is not the situation of the province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871),

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

(d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view existing local conditions and environment.

Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted. Without any pronouncement regarding costs. So ordered.

Avanceña, C.J., Imperial, Diaz and Concepcion, JJ., concur.Villa-real and Abad Santos, JJ., concur in the result.

SECOND DIVISION

[G.R. No. 126594. September 5, 1997]

IMELDA 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.

R E S O L U T I O N

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.

Preliminary, her motion for extension of time to file this petition was denied for non-compliance 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.

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 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 appeals 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.

x x x

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, association, 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 Malacañang 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.

x x x

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. (Italics 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 informations filed against her in Criminal Case Nos. 91-101732 to 91-101739 and 91-101879 to 91-101892. Respondent People of the Philippines opposed the same on June 2, 1994.

Petitioners 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 trust, not the Marcoses, opened and maintained the subject Swiss accounts and earned and received the interest 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.

x x x

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.”

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 actions 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 (Italics 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 (Italics 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.

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. 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 issuance of the Monetary Board necessary for the effective discharged 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:

x x x In no uncertain terms, the corresponding informations clearly state that the accused, in conspiracy with the late president x x x 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 therof although camouflaged in the name of foundations.

x x x

x x x 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. (Words in parenthesis 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.

Republic of the PhilippinesSUPREME COURT

Manila

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.

KAPUNAN, J.: chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

We find the petition devoid of merit.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

We disagree.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 chanrobles virtual law library

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." chanrobles virtual law library

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 chanrobles virtual law library

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? chanrobles virtual law library

REP. ZAMORA. In case they are charged with crimes.chanroblesvirtualawlibrary chanrobles virtual law library

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

SEN. GONZALES. Ano, the courts mismo ang magsasabing . . .chanroblesvirtualawlibrary chanrobles virtual law library

THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction.chanroblesvirtualawlibrary chanrobles virtual law library

REP. ZAMORA. The jurisdiction if there is robbery.chanroblesvirtualawlibrary chanrobles virtual law library

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." chanrobles virtual law library

REP. ALBANO. Where are we now Mr. Chairman.chanroblesvirtualawlibrary chanrobles virtual law library

THE CHAIRMAN (SEN. MACEDA). Grave felonies ito e. Six years and one day or more.chanroblesvirtualawlibrary chanrobles virtual law library

SEN. SAGUISAG. Kung five years and litigation ng Supreme Court, ganoon ba and . . .? chanrobles virtual law library

THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong iba panay disciplinary iyon e.chanroblesvirtualawlibrary chanrobles virtual law library

SEN. PIMENTEL. Anong page iyan, Rene? chanrobles virtual law library

THE CHAIRMAN (SEN. MACEDA). Page 29 - Preventive Suspension.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

SEN. GONZALES. Anyway, kung ma-exempt na rito naman siya e.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

REP. ZAMORA. Twenty days, okay na.chanroblesvirtualawlibrary chanrobles virtual law library

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. . .chanroblesvirtualawlibrary chanrobles virtual law library

REP. ZAMORA. Continuous hearing.chanroblesvirtualawlibrary chanrobles virtual law library

SEN. PIMENTEL. Not only that, but the case must be terminated within a period.chanroblesvirtualawlibrary chanrobles virtual law library

REP. ALBANO. Ninety days na ho sa Supreme Court the trial.chanroblesvirtualawlibrary chanrobles virtual law library

SEN. PIMENTEL. Ha? chanrobles virtual law library

REP. ALBANO. The trial must be done within ninety days, chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

REP. ALBANO. One solution, Mr. Chairman.chanroblesvirtualawlibrary chanrobles virtual law library

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

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

SEN. ANGARA. Let's have continuous hearing and be terminated not later than ninety days.chanroblesvirtualawlibrary chanrobles virtual law library

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

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.chanroblesvirtualawlibrary chanrobles virtual law library

SEN. PIMENTEL. Swift justice.chanroblesvirtualawlibrary chanrobles virtual law library

REP. ALBANO. Mr. Chairman.chanroblesvirtualawlibrary chanrobles virtual law library

THE CHAIRMAN. (SEN. MACEDA). Yes.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

SEN. PIMENTEL. No, because you can legislate at least.chanroblesvirtualawlibrary chanrobles virtual law library

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

SEN. PIMENTEL. Correct, correct, but is that a constitutional provision? Is it? chanrobles virtual law library

REP. ALBANO. No, but as a standard procedure.chanroblesvirtualawlibrary chanrobles virtual law library

SEN. PIMENTEL. Then you can legislate.chanroblesvirtualawlibrary chanrobles virtual law library

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. . . .chanroblesvirtualawlibrary chanrobles virtual law library

What I mean to say is, preventive suspension, we can use the Veloso case.chanroblesvirtualawlibrary chanrobles virtual law library

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 . . .chanroblesvirtualawlibrary chanrobles virtual law library

SEN. ANGARA. Can I suggest a language that may reflect. . .chanroblesvirtualawlibrary chanrobles virtual law library

THE CHAIRMAN (SEN. MACEDA). Okay, please.chanroblesvirtualawlibrary chanrobles virtual law library

SEN. ANGARA. "Such case shall be subject to continuous trial and be terminated not later than . . ." whatever we agree.chanroblesvirtualawlibrary chanrobles virtual law library

THE CHAIRMAN (SEN. MACEDA). Okay, so let's study that.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

ACCORDINGLY, the petition is hereby DISMISSED.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and Mendoza, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library

Feliciano, Padilla and Bidin, JJ., are on leave.

Republic of the PhilippinesSUPREME COURT

Manila

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.

Republic of the PhilippinesSUPREME COURT

Manila

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 Avanceña, 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 well-known 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.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

The petitioners at bar, three of whom pleaded guilty1 and two of whom stood trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of rebellion with multiple murder and other crimes, and have served or are now entering into their 17th year of imprisonment, save for petitioner Epifanio Padua who was sentenced on December 15, 1955 and is completing his 15th year of imprisonment, (excluding the periods they were under pre-conviction detention). The leaders of the rebellion who were meted out death and life sentences for the same charge by the Court of First Instance of Manila had their sentences reduced last near to ten years of prision mayor by the Court in People v. Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down in 1956 in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with other common crimes since such common crimes "assume the political complexion of the main crime of which they are mere ingredients and consequently cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty." The Court rejected therein the State's plea for the reexamination and setting aside of such doctrine, declaring that "(T)his Court has given this plea of the Solicitor General a very serious consideration, but after a mature deliberation the members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what this Court said in that case." The said leaders have since been duly freed as having served out their penalty, but their followers, herein petitioners, are still serving their life sentences.

I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference to persons in custody pursuant to a final judgment, the rule is that the writ of habeas corpus can issue only for want of jurisdiction of the sentencing court, and cannot function as a writ of error." "I grant, too, that at the time of the Pomeroy decision in 1960, as noted therein, "the existence of the 'complexed' rebellion (was) still upheld by a sizable number of lawyers, prosecutors, judges and even justices of this Court." But with the doctrine first enunciated in 1956 in Hernandez by a bare six-to-four majority vote having withstood the test of time 6 and having been just last year unreservedly reaffirmed without a single dissent in Lava, it cannot now be gainsaid that it is now part of our legal system that the crime of "complexed" rebellion does not exist in our Revised Penal Code. No prosecutor would now file an information for "complexed" rebellion but simply for the offense of simple rebellion as defined in Article 134 of the Revised Penal Code, and even if such an information for "complexed" rebellion to be so filed, the trial courts would be bound to quash such information as not charging an offense on the strength of Lava and Hernandez.

Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the Revised Penal Code that:

ART. 22. Retroactive effect of penal laws.—Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in rule 5 of article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.

in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines."

The situation of petitioners is no different than it would be if, say, the penalty of reclusion perpetua were imposed by statute for the crime of simple rebellion at the time of their conviction and they were accordingly sentenced, and the statutory penalty were now reduced to prision mayor or 12 years imprisonment; having served out the maximum penalty of 12 years now imposed by the amended statute, they would be entitled to invoke the retroactive effect of the statute favoring them.lâwphî1.ñèt The only difference between the situation given and the present case is that here it is this Supreme Court, interpreting the laws in discharge of its constitutional prerogative, that has laid down the doctrine since Hernandez in 1956 that no offense of "complexed" rebellion exists and petitioners should therefore be now equally entitled to the retroactive favorable effect of such doctrine.

The actual case of petitioners is that at the time of their conviction, it was believed — erroneously — that the crime committed by them was punishable by life imprisonment, but the Court has subsequently judicially determined it not be so and that the maximum imposable penalty is prision mayor or 12 years. Petitioners-convicts are entitled to the benefit of this later judicial declaration, just as if a statutory amendment had been enacted—not because the sentencing court had no jurisdiction or is now ousted of jurisdiction. The writ prayed for should issue, since as held in Directo vs. Director of Prisons,7 "the only means of giving retroactive effect to a penal provision favorable to the accused where the trial judge has lost jurisdiction over the case, is the writ of habeas corpus."

The question of jurisdiction of the sentencing court therefore is moot, for it is universally recognized that relief by habeas corpus may be properly sought in cases of imposition of excessive penalty, such that the part of the sentence beyond or in excess of the power of the court to impose is held void, the applicant having already served out the entire part of the sentence within the court's power. 8 As pointed out by the Court in Rodriguez vs. Director of Prisons,9 furthermore, "Article 22 of the Revised Penal Code ... extends its benefits even to convicts serving sentence, and the only legal remedy open to them to make use of such benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon them under the former penal law was decreased by the revised code, the excess has become illegal."

Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences had jurisdiction or not to impose such penalty, or were right or wrong in imposing such penalty, the only relevant question now is whether petitioners have served the maximum — and lesser — sentence of prision mayor that this Court has by firm judicial doctrine since 1956 determined to be the penalty that the Revised Penal Code fixes for the crime of rebellion. Since they have actually served much more than the maximum imposable penalty, the excess of the sentence imposed upon them over the imposable maximum of twelve years of prision mayor cannot but be declared illegal and they should now be set free.

In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the prescription of certain election offenses (fixing the same at one year after commission) were more favorable to the accused than those of the pre-existing law and were therefore retroactive as to the same

offenses committed before the enactment of the new law. In meeting the objection that the reduced prescription period was by its terms applicable only to offenses resulting from the new law (which amended the pre-existing Election Law) and could not be given retroactive effect, the Court found "that practically all of the offenses defined in the former law are also defined in the same language in Act 3030 (the new law), the only difference being that the penalties have been increased." Holding that the retroactivity clause of Article 22 of the Penal Code must apply in all in which the new law is more favorable to the accused, in the absence of any express statutory exception, the Court drew this analogy: "Let us suppose that a statute is enacted defining the crime of murder in the same language in which it is defined in the Penal Code, but providing that the maximum penalty for the crime defined in the new statute shall be life imprisonment, the statute containing no provision that it shall not be retroactive in its effect. Would anyone then maintain that the death penalty might still be imposed for murder committed before the new statute was enacted?"

The case at bar for petitioners is much stronger. Here, there is no question even as to the enactment of a law statute describing the crime in the same language and imposing a lesser penalty, but the settled doctrine of this Court that there does not exist in our legal system the complex crime of rebellion of which the petitioners stand convicted, "since rebellion cannot form a complex with common crimes, because the latter are either absorbed by the rebellion itself or are punishable as independent offenses." 11 Petitioners here have been convicted for the very same rebellion and under the very same law for which their leaders, Jose Lava et al., have been convicted. Yet, while their leaders have since been freed after serving their sentences of ten years of prision mayor, petitioners as mere followers are serving out the life sentences imposed on them, notwithstanding their already having served out much more than the maximum penalty of twelve years of prision mayor imposable upon them. The fact that the legal doubts about the non-existence of the crime of "complexed" rebellion were cleared up only in 1956 after they had already been convicted and were serving their sentences does not make the excess in the penalty imposed upon them beyond the maximum of twelve years any less illegal.

The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary rule of the law of the case, have no application here. These salutary rules decree that rights of parties having been decisively settled and determined by final judgment of the court of competent jurisdiction with the party adversely affected having had the opportunity to raise in the case all relevant questions, the decision becomes the law of the case, and vested rights would be impaired, judicial chaos and disorder ensue and litigation would be never-ending and would become more intolerable than the wrongs it is intended to redress, should an adjudicated case be reopened simply because in another and subsequent case, this Court adopted a new or different construction of the law under which a different result of the adjudicated case might have been obtained. Here, the whole question turns — simply — on the nature of the crime of rebellion as defined in section 134 of the Revised Penal Code and the maximum penalty imposable therefor under section 135 of the same Code. As this Court had ruled since 1956--which is now settled doctrine—that only the crime of simple rebellion exists in our legal system for which the maximum penalty of prision mayor may be imposed, the excess of the life sentences imposed upon petitioners over the imposable maximum of prision mayor cannot stand and must necessarily be declared void.

Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar presents a clear case of an excess in penalty imposed beyond twelve years of prision mayor which has become illegal by virtue of this Court's settled doctrine that the crime of rebellion cannot be complexed with other common crimes. On this ground, as well as on the further and more fundamental ground that to hold them liable to continue serving life sentences for a crime that the law—at the time of their conviction as well as now—punishes only with prision mayor which they have more than fully served, would be to deny them their constitutional rights of due process and equal protection of the law.

Any further detention of petitioners, in my view as above discussed, is illegal and unconstitutional and the petition for habeas corpus should be granted and petitioners forthwith set at liberty.

Reyes, J.B.L., Makalintal and Villamor, JJ., concur.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

The petitioners at bar, three of whom pleaded guilty1 and two of whom stood trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of rebellion with multiple murder and other crimes, and have served or are now entering into their 17th year of imprisonment, save for petitioner Epifanio Padua who was sentenced on December 15, 1955 and is completing his 15th year of imprisonment, (excluding the periods they were under pre-conviction detention). The leaders of the rebellion who were meted out death and life sentences for the same charge by the Court of First Instance of Manila had their sentences reduced last near to ten years of prision mayor by the Court in People v. Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down in 1956 in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with other common crimes since such common crimes "assume the political complexion of the main crime of which they are mere ingredients and consequently cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty." The Court rejected therein the State's plea for the reexamination and setting aside of such doctrine, declaring that "(T)his Court has given this plea of the Solicitor General a very serious consideration, but after a mature deliberation the members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what this Court said in that case." The said leaders have since been duly freed as having served out their penalty, but their followers, herein petitioners, are still serving their life sentences.

I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference to persons in custody pursuant to a final judgment, the rule is that the writ of habeas corpus can issue only for want of jurisdiction of the sentencing court, and cannot function as a writ of error." "I grant, too, that at the time of the Pomeroy decision in 1960, as noted therein, "the existence of the 'complexed' rebellion (was) still upheld by a sizable number of lawyers, prosecutors, judges and even justices of this Court." But with the doctrine first enunciated in 1956 in Hernandez by a bare six-to-four majority vote having withstood the test of time 6 and having been just last year unreservedly reaffirmed without a single dissent in Lava, it cannot now be gainsaid that it is now part of our legal system that the crime of "complexed" rebellion does not exist in our Revised Penal Code. No prosecutor would now file an information for "complexed" rebellion but simply for the offense of simple rebellion as defined in Article 134 of the Revised Penal Code, and even if such an information for "complexed" rebellion to be so filed, the trial courts would be bound to quash such information as not charging an offense on the strength of Lava and Hernandez.

Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the Revised Penal Code that:

ART. 22. Retroactive effect of penal laws.—Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in rule 5 of article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.

in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines."

The situation of petitioners is no different than it would be if, say, the penalty of reclusion perpetua were imposed by statute for the crime of simple rebellion at the time of their conviction and they were accordingly sentenced, and the statutory penalty were now reduced to prision mayor or 12 years imprisonment; having served out the maximum penalty of 12 years now imposed by the amended statute, they would be entitled to invoke the retroactive effect of the statute favoring them. The only difference between the situation given and the present case is that here it is this Supreme Court, interpreting the laws in discharge of its constitutional prerogative, that has laid down the doctrine since Hernandez in 1956 that no offense of "complexed" rebellion exists and petitioners should therefore be now equally entitled to the retroactive favorable effect of such doctrine.

The actual case of petitioners is that at the time of their conviction, it was believed — erroneously — that the crime committed by them was punishable by life imprisonment, but the Court has subsequently judicially determined it not be so and that the maximum imposable penalty is prision mayor or 12 years. Petitioners-convicts are entitled to the benefit of this later judicial declaration, just as if a statutory amendment had been enacted—not because the sentencing court had no jurisdiction or is now ousted of jurisdiction. The writ prayed for should issue, since as held in Directo vs. Director of Prisons,7 "the only means of giving retroactive effect to a penal provision favorable to the accused where the trial judge has lost jurisdiction over the case, is the writ of habeas corpus."

The question of jurisdiction of the sentencing court therefore is moot, for it is universally recognized that relief by habeas corpus may be properly sought in cases of imposition of excessive penalty, such that the part of the sentence beyond or in excess of the power of the court to impose is held void, the applicant having already served out the entire part of the sentence within the court's power. 8 As pointed out by the Court in Rodriguez vs. Director of Prisons,9 furthermore, "Article 22 of the Revised Penal Code ... extends its benefits even to convicts serving sentence, and the only legal remedy open to them to make use of such benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon them under the former penal law was decreased by the revised code, the excess has become illegal."

Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences had jurisdiction or not to impose such penalty, or were right or wrong in imposing such penalty, the only relevant question now is whether petitioners have served the maximum — and lesser — sentence of prision mayor that this Court has by firm judicial doctrine since 1956 determined to be the penalty that the Revised Penal Code fixes for the crime of rebellion. Since they have actually served much more than the maximum imposable penalty, the excess of the sentence imposed upon them over the imposable maximum of twelve years of prision mayor cannot but be declared illegal and they should now be set free.

In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the prescription of certain election offenses (fixing the same at one year after commission) were more favorable to the accused than those of the pre-existing law and were therefore retroactive as to the same offenses committed before the enactment of the new law. In meeting the objection that the reduced prescription period was by its terms applicable only to offenses resulting from the new law (which amended the pre-existing Election Law) and could not be given retroactive effect, the Court found "that practically all of the offenses defined in the former law are also defined in the same language in Act 3030 (the new law), the only difference being that the penalties have been increased." Holding that the retroactivity clause of Article 22 of the Penal Code must apply in all in which the new law is more favorable to the accused, in the absence of any express statutory exception, the Court drew this analogy: "Let us suppose that a statute is enacted defining the crime of murder in the same language in which it is defined in the Penal Code, but providing that the maximum penalty for the crime defined in the new statute shall be life imprisonment, the statute containing no provision that it shall not be retroactive in its effect. Would anyone then maintain that the death penalty might still be imposed for murder committed before the new statute was enacted?"

The case at bar for petitioners is much stronger. Here, there is no question even as to the enactment of a law statute describing the crime in the same language and imposing a lesser penalty, but the settled doctrine of this Court that there does not exist in our legal system the complex crime of rebellion of which the petitioners stand convicted, "since rebellion cannot form a complex with common crimes, because the latter are either absorbed by the rebellion itself or are punishable as independent offenses." 11 Petitioners here have been convicted for the very same rebellion and

under the very same law for which their leaders, Jose Lava et al., have been convicted. Yet, while their leaders have since been freed after serving their sentences of ten years of prision mayor, petitioners as mere followers are serving out the life sentences imposed on them, notwithstanding their already having served out much more than the maximum penalty of twelve years of prision mayor imposable upon them. The fact that the legal doubts about the non-existence of the crime of "complexed" rebellion were cleared up only in 1956 after they had already been convicted and were serving their sentences does not make the excess in the penalty imposed upon them beyond the maximum of twelve years any less illegal.

The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary rule of the law of the case, have no application here. These salutary rules decree that rights of parties having been decisively settled and determined by final judgment of the court of competent jurisdiction with the party adversely affected having had the opportunity to raise in the case all relevant questions, the decision becomes the law of the case, and vested rights would be impaired, judicial chaos and disorder ensue and litigation would be never-ending and would become more intolerable than the wrongs it is intended to redress, should an adjudicated case be reopened simply because in another and subsequent case, this Court adopted a new or different construction of the law under which a different result of the adjudicated case might have been obtained. Here, the whole question turns — simply — on the nature of the crime of rebellion as defined in section 134 of the Revised Penal Code and the maximum penalty imposable therefor under section 135 of the same Code. As this Court had ruled since 1956--which is now settled doctrine—that only the crime of simple rebellion exists in our legal system for which the maximum penalty of prision mayor may be imposed, the excess of the life sentences imposed upon petitioners over the imposable maximum of prision mayor cannot stand and must necessarily be declared void.

Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar presents a clear case of an excess in penalty imposed beyond twelve years of prision mayor which has become illegal by virtue of this Court's settled doctrine that the crime of rebellion cannot be complexed with other common crimes. On this ground, as well as on the further and more fundamental ground that to hold them liable to continue serving life sentences for a crime that the law—at the time of their conviction as well as now—punishes only with prision mayor which they have more than fully served, would be to deny them their constitutional rights of due process and equal protection of the law.

Any further detention of petitioners, in my view as above discussed, is illegal and unconstitutional and the petition for habeas corpus should be granted and petitioners forthwith set at liberty.

Reyes, J.B.L., Makalintal and Villamor, JJ., concu