Full Text - Fundamental Powers of The State

POLITICAL REVIEW: VI.
FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)
G.R. No. 152642
November 13, 2012
HON. PATRICIA A. STO.TOMAS, ROSALINDA BALDOZ and LUCITA

LAZO, Petitioners,
vs.
REY SALAC, WILLIE D. ESPIRITU, MARIO MONTENEGRO, DODGIE BELONIO, LOLIT
SALINEL and BUDDY BONNEVIE, Respondents.
x-----------------------x
G.R. No. 152710
HON. PATRICIA A. STO. TOMAS, in her capacity as Secretary of Department of
Labor and Employment (DOLE), HON. ROSALINDA D. BALDOZ, in her capacity as
Administrator, Philippine Overseas Employment Administration (POEA), and the
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION GOVERNING
BOARD, Petitioners,
vs.
HON. JOSE G. PANEDA, in his capacity as the Presiding Judge of Branch 220,
Quezon City, ASIAN RECRUITMENT COUNCIL PHILIPPINE CHAPTER, INC.
(ARCOPHIL), for itself and in behalf of its members: WORLDCARE PHILIPPINES
SERVIZO INTERNATIONALE, INC., STEADFAST INTERNATIONAL RECRUITMENT
CORP., VERDANT MANPOWER MOBILIZATION CORP., BRENT OVERSEAS
PERSONNEL, INC., ARL MANPOWER SERVICES, INC., DAHLZEN INTERNATIONAL
SERVICES, INC., INTERWORLD PLACEMENT CENTER, INC., LAKAS TAO CONTRACT
SERVICES LTD. CO., SSC MULTI-SERVICES, DMJ INTERNATIONAL, and MIP
INTERNATIONAL MANPOWER SERVICES, represented by its proprietress,
MARCELINA I. PAGSIBIGAN, Respondents.
G. Cuaresma), WHITE FALCON SERVICES, INC., and JAIME ORTIZ (President of

White Falcon Services, Inc.), Respondents.
x-----------------------x
G.R. Nos. 184298-99
SPOUSES SIMPLICIO AND MILA CUARESMA (for and in behalf of deceased
daughter, Jasmin G. Cuaresma), Petitioners,
vs.
WHITE FALCON SERVICES, INC. and BECMEN SERVICES EXPORTER AND
PROMOTION, INC., Respondents.
DECISION
ABAD, J.:
These consolidated cases pertain to the constitutionality of certain provisions of Republic
Act 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995.
The Facts and the Case
On June 7, 1995 Congress enacted Republic Act (R.A.) 8042 or the Migrant Workers and
Overseas Filipinos Act of 1995 that, for among other purposes, sets the Governments
policies on overseas employment and establishes a higher standard of protection and
promotion of the welfare of migrant workers, their families, and overseas Filipinos in
distress.
x-----------------------x
G.R. 152642 and G.R. 152710
G.R. No. 167590
(Constitutionality of Sections 29 and 30, R.A. 8042)
REPUBLIC OF THE PHILIPPINES, represented by the HONORABLE EXECUTIVE
SECRETARY, the HONORABLE SECRETARY OF LABOR AND EMPLOYMENT (DOLE),
the PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA), the
OVERSEAS WORKERS WELFARE ADMINISTRATION (OWWA), the LABOR ARBITERS
OF THE NATIONAL LABOR RELATIONS COMMISSION (NLRC), the HONORABLE
SECRETARY OF JUSTICE, the HONORABLE SECRETARY OF FOREIGN AFFAIRS and
the COMMISSION ON AUDIT (COA), Petitioners,
vs.
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC. (P ASEI), Respondent.
x-----------------------x
Sections 29 and 30 of the Act1 commanded the Department of Labor and Employment
(DOLE) to begin deregulating within one year of its passage the business of handling the
recruitment and migration of overseas Filipino workers and phase out within five years the
regulatory functions of the Philippine Overseas Employment Administration (POEA).
On January 8, 2002 respondents Rey Salac, Willie D. Espiritu, Mario Montenegro, Dodgie
Belonio, Lolit Salinel, and Buddy Bonnevie (Salac, et al.) filed a petition for certiorari,
prohibition and mandamus with application for temporary restraining order (TRO) and
preliminary injunction against petitioners, the DOLE Secretary, the POEA Administrator,
and the Technical Education and Skills Development Authority (TESDA) Secretary-General
before the Regional Trial Court (RTC) of Quezon City, Branch 96. 2
G.R. Nos. 182978-79

BECMEN SERVICE EXPORTER AND PROMOTION, INC., Petitioner,
vs.
SPOUSES SIMPLICIO AND MILA CUARESMA (for and in behalf of daughter, Jasmin
Salac, et al. sought to: 1) nullify DOLE Department Order 10 (DOLE DO 10) and POEA
Memorandum Circular 15 (POEA MC 15); 2) prohibit the DOLE, POEA, and TESDA from
implementing the same and from further issuing rules and regulations that would regulate
the recruitment and placement of overseas Filipino workers (OFWs); and 3) also enjoin
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POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)
them to comply with the policy of deregulation mandated under Sections 29 and 30 of
Republic Act 8042.
On March 20, 2002 the Quezon City RTC granted Salac, et al.s petition and ordered the
government agencies mentioned to deregulate the recruitment and placement of
OFWs.3 The RTC also annulled DOLE DO 10, POEA MC 15, and all other orders, circulars
and issuances that are inconsistent with the policy of deregulation under R.A. 8042.
Prompted by the RTCs above actions, the government officials concerned filed the
present petition in G.R. 152642 seeking to annul the RTCs decision and have the same
enjoined pending action on the petition.
On April 17, 2002 the Philippine Association of Service Exporters, Inc. intervened in the
case before the Court, claiming that the RTC March 20, 2002 Decision gravely affected
them since it paralyzed the deployment abroad of OFWs and performing artists. The
Confederated Association of Licensed Entertainment Agencies, Incorporated (CALEA)
intervened for the same purpose.4
On May 23, 2002 the Court5 issued a TRO in the case, enjoining the Quezon City RTC,
Branch 96, from enforcing its decision.
In a parallel case, on February 12, 2002 respondents Asian Recruitment Council Philippine
Chapter, Inc. and others (Arcophil, et al.) filed a petition for certiorari and prohibition with
application for TRO and preliminary injunction against the DOLE Secretary, the POEA
Administrator, and the TESDA Director-General, 6 before the RTC of Quezon City, Branch
220, to enjoin the latter from implementing the 2002 Rules and Regulations Governing the
Recruitment and Employment of Overseas Workers and to cease and desist from issuing
other orders, circulars, and policies that tend to regulate the recruitment and placement
of OFWs in violation of the policy of deregulation provided in Sections 29 and 30 of R.A.
8042.
On March 12, 2002 the Quezon City RTC rendered an Order, granting the petition and
enjoining the government agencies involved from exercising regulatory functions over the
recruitment and placement of OFWs. This prompted the DOLE Secretary, the POEA
Administrator, and the TESDA Director-General to file the present action in G.R. 152710.
As in G.R. 152642, the Court issued on May 23, 2002 a TRO enjoining the Quezon City
RTC, Branch 220 from enforcing its decision.
On December 4, 2008, however, the Republic informed 7 the Court that on April 10, 2007
former President Gloria Macapagal-Arroyo signed into law R.A. 9422 8 which expressly
repealed Sections 29 and 30 of R.A. 8042 and adopted the policy of close government
regulation of the recruitment and deployment of OFWs. R.A. 9422 pertinently provides:
xxxx
SEC. 1. Section 23, paragraph (b.1) of Republic Act No. 8042, otherwise known as the
"Migrant Workers and Overseas Filipinos Act of 1995" is hereby amended to read as
follows:
(b.1) Philippine Overseas Employment Administration The Administration shall regulate
private sector participation in the recruitment and overseas placement of workers by
setting up a licensing and registration system. It shall also formulate and implement, in
coordination with appropriate entities concerned, when necessary, a system for promoting
and monitoring the overseas employment of Filipino workers taking into consideration
their welfare and the domestic manpower requirements.
In addition to its powers and functions, the administration shall inform migrant workers
not only of their rights as workers but also of their rights as human beings, instruct and
guide the workers how to assert their rights and provide the available mechanism to
redress violation of their rights.
In the recruitment and placement of workers to service the requirements for trained and
competent Filipino workers of foreign governments and their instrumentalities, and such
other employers as public interests may require, the administration shall deploy only to
countries where the Philippines has concluded bilateral labor agreements or
arrangements: Provided, That such countries shall guarantee to protect the rights of
Filipino migrant workers; and: Provided, further, That such countries shall observe and/or
comply with the international laws and standards for migrant workers.
SEC. 2. Section 29 of the same law is hereby repealed.
SEC. 3. Section 30 of the same law is also hereby repealed.
xxxx
On August 20, 2009 respondents Salac, et al. told the Court in G.R. 152642 that they
agree9 with the Republics view that the repeal of Sections 29 and 30 of R.A. 8042 renders
the issues they raised by their action moot and academic. The Court has no reason to
disagree. Consequently, the two cases, G.R. 152642 and 152710, should be dismissed for
being moot and academic.
G.R. 167590
(Constitutionality of Sections 6, 7, and 9 of R.A. 8042)
On August 21, 1995 respondent Philippine Association of Service Exporters, Inc. (PASEI)
filed a petition for declaratory relief and prohibition with prayer for issuance of TRO and
writ of preliminary injunction before the RTC of Manila, seeking to annul Sections 6, 7, and
9 of R.A. 8042 for being unconstitutional. (PASEI also sought to annul a portion of Section
10 but the Court will take up this point later together with a related case.)
Section 6 defines the crime of "illegal recruitment" and enumerates the acts constituting
the same. Section 7 provides the penalties for prohibited acts. Thus:
SEC. 6. Definition. For purposes of this Act, illegal recruitment shall mean any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, procuring workers and
includes referring, contract services, promising or advertising for employment abroad,
whether for profit or not, when undertaken by a non-license or non-holder of authority
contemplated under Article 13(f) of Presidential Decree No. 442, as amended, otherwise
known as the Labor Code of the Philippines: Provided, That such non-license or nonholder, who, in any manner, offers or promises for a fee employment abroad to two or
more persons shall be deemed so engaged. It shall likewise include the following acts,
2
whether committed by any person, whether a non-licensee, non-holder, licensee or holder

of authority:
xxxx
SEC. 7. Penalties.
(a) Any person found guilty of illegal recruitment shall suffer the penalty of
imprisonment of not less than six (6) years and one (1) day but not more than
twelve (12) years and a fine not less than two hundred thousand pesos
(P200,000.00) nor more than five hundred thousand pesos (P500,000.00).
(b) The penalty of life imprisonment and a fine of not less than five hundred
thousand pesos (P500,000.00) nor more than one million pesos (P1,000,000.00)
shall be imposed if illegal recruitment constitutes economic sabotage as defined
herein.
Provided, however, That the maximum penalty shall be imposed if the person illegally
recruited is less than eighteen (18) years of age or committed by a non-licensee or nonholder of authority.10
Finally, Section 9 of R.A. 8042 allowed the filing of criminal actions arising from "illegal
recruitment" before the RTC of the province or city where the offense was committed or
where the offended party actually resides at the time of the commission of the offense.
The RTC of Manila declared Section 6 unconstitutional after hearing on the ground that its
definition of "illegal recruitment" is vague as it fails to distinguish between licensed and
non-licensed recruiters11 and for that reason gives undue advantage to the non-licensed
recruiters in violation of the right to equal protection of those that operate with
government licenses or authorities.
But "illegal recruitment" as defined in Section 6 is clear and unambiguous and, contrary to
the RTCs finding, actually makes a distinction between licensed and non-licensed
recruiters. By its terms, persons who engage in "canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring workers" without the appropriate government
license or authority are guilty of illegal recruitment whether or not they commit the
wrongful acts enumerated in that section. On the other hand, recruiters who engage in
the canvassing, enlisting, etc. of OFWs, although with the appropriate government license
or authority, are guilty of illegal recruitment only if they commit any of the wrongful acts
enumerated in Section 6.
The Manila RTC also declared Section 7 unconstitutional on the ground that its sweeping
application of the penalties failed to make any distinction as to the seriousness of the act
committed for the application of the penalty imposed on such violation. As an example,
said the trial court, the mere failure to render a report under Section 6(h) or obstructing
the inspection by the Labor Department under Section 6(g) are penalized by
imprisonment for six years and one day and a minimum fine of P200,000.00 but which
could unreasonably go even as high as life imprisonment if committed by at least three
persons.
Apparently, the Manila RTC did not agree that the law can impose such grave penalties
upon what it believed were specific acts that were not as condemnable as the others in
the lists. But, in fixing uniform penalties for each of the enumerated acts under Section 6,
Congress was within its prerogative to determine what individual acts are equally
reprehensible, consistent with the State policy of according full protection to labor, and
deserving of the same penalties. It is not within the power of the Court to question the
wisdom of this kind of choice. Notably, this legislative policy has been further stressed in
July 2010 with the enactment of R.A. 1002212 which increased even more the duration of
the penalties of imprisonment and the amounts of fine for the commission of the acts
listed under Section 7.
Obviously, in fixing such tough penalties, the law considered the unsettling fact that OFWs
must work outside the countrys borders and beyond its immediate protection. The law
must, therefore, make an effort to somehow protect them from conscienceless individuals
within its jurisdiction who, fueled by greed, are willing to ship them out without clear
assurance that their contracted principals would treat such OFWs fairly and humanely.
As the Court held in People v. Ventura,13 the State under its police power "may prescribe
such regulations as in its judgment will secure or tend to secure the general welfare of the
people, to protect them against the consequence of ignorance and incapacity as well as of
deception and fraud." Police power is "that inherent and plenary power of the State which
enables it to prohibit all things hurtful to the comfort, safety, and welfare of society." 14
The Manila RTC also invalidated Section 9 of R.A. 8042 on the ground that allowing the
offended parties to file the criminal case in their place of residence would negate the
general rule on venue of criminal cases which is the place where the crime or any of its
essential elements were committed. Venue, said the RTC, is jurisdictional in penal laws
and, allowing the filing of criminal actions at the place of residence of the offended parties
violates their right to due process. Section 9 provides:
SEC. 9. Venue. A criminal action arising from illegal recruitment as defined herein shall
be filed with the Regional Trial Court of the province or city where the offense was
committed or where the offended party actually resides at the time of the commission of
the offense: Provided, That the court where the criminal action is first filed shall acquire
jurisdiction to the exclusion of other courts: Provided, however, That the aforestated
provisions shall also apply to those criminal actions that have already been filed in court
at the time of the effectivity of this Act.
But there is nothing arbitrary or unconstitutional in Congress fixing an alternative venue
for violations of Section 6 of R.A. 8042 that differs from the venue established by the Rules
on Criminal Procedure. Indeed, Section 15(a), Rule 110 of the latter Rules allows
exceptions provided by laws. Thus:
SEC. 15. Place where action is to be instituted. (a) Subject to existing laws, the criminal
action shall be instituted and tried in the court of the municipality or territory where the
offense was committed or where any of its essential ingredients occurred. (Emphasis
supplied)
xxxx
Section 9 of R.A. 8042, as an exception to the rule on venue of criminal actions is,
consistent with that laws declared policy 15 of providing a criminal justice system that
protects and serves the best interests of the victims of illegal recruitment.
G.R. 167590, G.R. 182978-79,16 and G.R. 184298-9917
(Constitutionality of Section 10, last sentence of 2nd paragraph)
G.R. 182978-79 and G.R. 184298-99 are consolidated cases. Respondent spouses
Simplicio and Mila Cuaresma (the Cuaresmas) filed a claim for death and insurance
benefits and damages against petitioners Becmen Service Exporter and Promotion, Inc.
(Becmen) and White Falcon Services, Inc. (White Falcon) for the death of their daughter
Jasmin Cuaresma while working as staff nurse in Riyadh, Saudi Arabia.
The Labor Arbiter (LA) dismissed the claim on the ground that the Cuaresmas had already
received insurance benefits arising from their daughters death from the Overseas
Workers Welfare Administration (OWWA). The LA also gave due credence to the findings of
the Saudi Arabian authorities that Jasmin committed suicide.
On appeal, however, the National Labor Relations Commission (NLRC) found Becmen and
White Falcon jointly and severally liable for Jasmins death and ordered them to pay the
Cuaresmas the amount of US$113,000.00 as actual damages. The NLRC relied on the
Cabanatuan City Health Offices autopsy finding that Jasmin died of criminal violence and
rape.
Becmen and White Falcon appealed the NLRC Decision to the Court of Appeals (CA). 18 On
June 28, 2006 the CA held Becmen and White Falcon jointly and severally liable with their
Saudi Arabian employer for actual damages, with Becmen having a right of
reimbursement from White Falcon. Becmen and White Falcon appealed the CA Decision to
this Court.
On April 7, 2009 the Court found Jasmins death not work-related or work-connected since
her rape and death did not occur while she was on duty at the hospital or doing acts
incidental to her employment. The Court deleted the award of actual damages but ruled
that Becmens corporate directors and officers are solidarily liable with their company for
its failure to investigate the true nature of her death. Becmen and White Falcon
abandoned their legal, moral, and social duty to assist the Cuaresmas in obtaining justice
for their daughter. Consequently, the Court held the foreign employer Rajab and Silsilah,
White Falcon, Becmen, and the latters corporate directors and officers jointly and
severally liable to the Cuaresmas for: 1) P2,500,000.00 as moral damages; 2)
P2,500,000.00 as exemplary damages; 3) attorneys fees of 10% of the total monetary
award; and 4) cost of suit.
On July 16, 2009 the corporate directors and officers of Becmen, namely, Eufrocina
Gumabay, Elvira Taguiam, Lourdes Bonifacio and Eddie De Guzman (Gumabay, et al.) filed
a motion for leave to Intervene. They questioned the constitutionality of the last sentence
of the second paragraph of Section 10, R.A. 8042 which holds the corporate directors,
officers and partners jointly and solidarily liable with their company for money claims filed
by OFWs against their employers and the recruitment firms. On September 9, 2009 the
Court allowed the intervention and admitted Gumabay, et al.s motion for reconsideration.
The key issue that Gumabay, et al. present is whether or not the 2nd paragraph of Section
10, R.A. 8042, which holds the corporate directors, officers, and partners of recruitment
and placement agencies jointly and solidarily liable for money claims and damages that
may be adjudged against the latter agencies, is unconstitutional.
In G.R. 167590 (the PASEI case), the Quezon City RTC held as unconstitutional the last
sentence of the 2nd paragraph of Section 10 of R.A. 8042. It pointed out that, absent
sufficient proof that the corporate officers and directors of the erring company had
knowledge of and allowed the illegal recruitment, making them automatically liable would
violate their right to due process of law.
The pertinent portion of Section 10 provides:
SEC. 10. Money Claims. x x x
The liability of the principal/employer and the recruitment/placement agency for any and
all claims under this section shall be joint and several. This provision shall be incorporated
in the contract for overseas employment and shall be a condition precedent for its
approval. The performance bond to be filed by the recruitment/placement agency, as
provided by law, shall be answerable for all money claims or damages that may be
awarded to the workers. If the recruitment/placement agency is a juridical being, the
corporate officers and directors and partners as the case may be, shall themselves be
jointly and solidarily liable with the corporation or partnership for the aforesaid claims and
damages. (Emphasis supplied)
But the Court has already held, pending adjudication of this case, that the liability of
corporate directors and officers is not automatic. To make them jointly and solidarily liable
with their company, there must be a finding that they were remiss in directing the affairs
of that company, such as sponsoring or tolerating the conduct of illegal activities. 19 In the
case of Becmen and White Falcon,20 while there is evidence that these companies were at
fault in not investigating the cause of Jasmins death, there is no mention of any evidence
in the case against them that intervenors Gumabay, et al., Becmens corporate officers
and directors, were personally involved in their companys particular actions or omissions
in Jasmins case.
As a final note, R.A. 8042 is a police power measure intended to regulate the recruitment
and deployment of OFWs. It aims to curb, if not eliminate, the injustices and abuses
suffered by numerous OFWs seeking to work abroad. The rule is settled that every statute
has in its favor the presumption of constitutionality. The Court cannot inquire into the
wisdom or expediency of the laws enacted by the Legislative Department. Hence, in the
absence of a clear and unmistakable case that the statute is unconstitutional, the Court
must uphold its validity.
WHEREFORE, in G.R. 152642 and 152710, the Court DISMISSES the petitions for having
become moot and academic.1wphi1
In G.R. 167590, the Court SETS ASIDE the Decision of the Regional Trial Court ofManila
dated December 8, 2004 and DECLARES Sections 6, 7, and 9 of Republic Act 8042 valid
and constitutional.
In G.R. 182978-79 and G.R. 184298-99 as well as in G.R. 167590, the Court HOLDS the
last sentence of the second paragraph of Section 10 of Republic Act 8042 valid and
constitutional. The Court, however, RECONSIDERS and SETS ASIDE the portion of its
Decision in G.R. 182978-79 and G.R. 184298-99 that held intervenors Eufrocina Gumabay,
Elvira Taguiam, Lourdes Bonifacio, and Eddie De Guzman jointly and solidarily liable with
respondent Becmen Services Exporter and Promotion, Inc. to spouses Simplicia and Mila
Cuaresma for lack of a finding in those cases that such intervenors had a part in the act or
omission imputed to their corporation.
New York Times Co. v. United States, 403 U.S. 713 (1971)
No. 1873
Argued June 26, 1971
Decided June 30, 1971*
403 U.S. 713
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
The United States, which brought these actions to enjoin publication in the New York
Times and in the Washington Post of certain classified material, has not met the "heavy
burden of showing justification for the enforcement of such a [prior] restraint."
No. 1873, 44 F.2d 544, reversed and remanded; No. 1885, ___ U.S.App.D.C. ___, 446 F.2d
1327, affirmed.
Page 403 U. S. 714
PER CURIAM
We granted certiorari in these cases in which the United States seeks to enjoin the New
York Times and the Washington Post from publishing the contents of a classified study
entitled "History of U.S. Decision-Making Process on Viet Nam Policy." Post, pp. 942, 943.
"Any system of prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U. S.
58, 372 U. S. 70 (1963); see also Near v. Minnesota, 283 U. S. 697 (1931). The
Government "thus carries a heavy burden of showing justification for the imposition of
such a restraint." Organization for a Better Austin v. Keefe, 402 U. S. 415, 402 U. S.
419 (1971). The District Court for the Southern District of New York, in the New York
Times case, and the District Court for the District of Columbia and the Court of Appeals for
the District of Columbia Circuit, in the Washington Post case, held that the Government
had not met that burden.
We agree.
The judgment of the Court of Appeals for the District of Columbia Circuit is therefore
affirmed. The order of the Court of Appeals for the Second Circuit is reversed, and the
case is remanded with directions to enter a judgment affirming the judgment of the
District Court for the Southern District of New York. The stays entered June 25, 1971, by
the Court are vacated. The judgments shall issue forthwith.
So ordered.
* Together with No. 1885, United States v. Washington Post Co. et al., on certiorari to the
United States Court of Appeals for the District of Columbia Circuit.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
I adhere to the view that the Government's case against the Washington Post should have
been dismissed, and that the injunction against the New York Times should have been
vacated without oral argument when the cases were first presented to this Court. I believe
Page 403 U. S. 715
that every moment's continuance of the injunctions against these newspapers amounts to
a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore,
after oral argument, I agree completely that we must affirm the judgment of the Court of
Appeals for the District of Columbia Circuit and reverse the judgment of the Court of
Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and
BRENNAN. In my view, it is unfortunate that some of my Brethren are apparently willing to
hold that the publication of news may sometimes be enjoined. Such a holding would make
a shambles of the First Amendment.
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of
Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182
years since the founding of the Republic, the federal courts are asked to hold that the First
Amendment does not mean what it says, but rather means that the Government can halt
the publication of current news of vital importance to the people of this country.
In seeking injunctions against these newspapers, and in its presentation to the Court, the
Executive Branch seems to have forgotten the essential purpose and history of the First
Amendment. When the Constitution was adopted, many people strongly opposed it
because the document contained no Bill of Rights to safeguard certain basic freedoms.
[Footnote 1] They especially feared that the
Page 403 U. S. 716
new powers granted to a central government might be interpreted to permit the
government to curtail freedom of religion, press, assembly, and speech. In response to an
overwhelming public clamor, James Madison offered a series of amendments to satisfy
citizens that these great liberties would remain safe and beyond the power of government
to abridge. Madison proposed what later became the First Amendment in three parts, two
of which are set out below, and one of which proclaimed:
"The people shall not be deprived or abridged of their right to speak, to write, or to
publish their sentiments, and the freedom of the press, as one of the great bulwarks of
liberty, shall be inviolable. [Footnote 2]"
(Emphasis added.) The amendments were offered to curtail and restrict the general
powers granted to the Executive, Legislative, and Judicial Branches two years before in
the original Constitution. The Bill of Rights changed the original Constitution into a new
charter under which no branch of government could abridge the people's freedoms of
press, speech, religion, and assembly. Yet the Solicitor General argues and some members
of the Court appear to agree that the general powers of the Government adopted in the
original Constitution should be interpreted to limit and restrict the specific and emphatic
guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of
history. Madison and the other Framers of the First Amendment, able men
5
Page 403 U. S. 717

that they were, wrote in language they earnestly believed could never be misunderstood:
"Congress shall make no law . . . abridging the freedom . . . of the press. . . ." Both the
history and language of the First Amendment support the view that the press must be left
free to publish news, whatever the source, without censorship, injunctions, or prior
restraints.
In the First Amendment, the Founding Fathers gave the free press the protection it must
have to fulfill its essential role in our democracy. The press was to serve the governed, not
the governors. The Government's power to censor the press was abolished so that the
press would remain forever free to censure the Government. The press was protected so
that it could bare the secrets of government and inform the people. Only a free and
unrestrained press can effectively expose deception in government.
And paramount among the responsibilities of a free press is the duty to prevent any part
of the government from deceiving the people and sending them off to distant lands to die
of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation
for their courageous reporting, the New York Times, the Washington Post, and other
newspapers should be commended for serving the purpose that the Founding Fathers saw
so clearly. In revealing the workings of government that led to the Vietnam war, the
newspapers nobly did precisely that which the Founders hoped and trusted they would do.
The Government's case here is based on premises entirely different from those that
guided the Framers of the First Amendment. The Solicitor General has carefully and
emphatically stated:
"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known,
and I certainly respect it. You say that no law means no law, and that should be obvious. I
can only
Page 403 U. S. 718
say, Mr. Justice, that to me it is equally obvious that 'no law' does not mean 'no law,' and I
would seek to persuade the Court that that is true. . . . [T]here are other parts of the
Constitution that grant powers and responsibilities to the Executive, and . . . the First
Amendment was not intended to make it impossible for the Executive to function or to
protect the security of the United States. [Footnote 3]"
And the Government argues in its brief that, in spite of the First Amendment,
"[t]he authority of the Executive Department to protect the nation against publication of
information whose disclosure would endanger the national security stems from two
interrelated sources: the constitutional power of the President over the conduct of foreign
affairs and his authority as Commander-in-Chief. [Footnote 4]"
In other words, we are asked to hold that, despite the First Amendment's emphatic
command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining
publication of current news and abridging freedom of the press in the name of "national
security." The Government does not even attempt to rely on any act of Congress. Instead,
it makes the bold and dangerously far-reaching contention that the courts should take it
upon themselves to "make" a law abridging freedom of the press in the name of equity,
presidential power and national security, even when the representatives of the people in
Congress have adhered to the command of the First Amendment and refused to make
such a law. [Footnote 5] See concurring opinion of MR. JUSTICE DOUGLAS,
Page 403 U. S. 719
post at 403 U. S. 721-722. To find that the President has "inherent power" to halt the
publication of news by resort to the courts would wipe out the First Amendment and
destroy the fundamental liberty and security of the very people the Government hopes to
make "secure." No one can read the history of the adoption of the First Amendment
without being convinced beyond any doubt that it was injunctions like those sought here
that Madison and his collaborators intended to outlaw in this Nation for all time.
The word "security" is a broad, vague generality whose contours should not be invoked to
abrogate the fundamental law embodied in the First Amendment. The guarding of military
and diplomatic secrets at the expense of informed representative government provides no
real security for our Republic. The Framers of the First Amendment, fully aware of both the
need to defend a new nation and the abuses of the English and Colonial governments,
sought to give this new society strength and security by providing that freedom of speech,
press, religion, and assembly should not be abridged. This thought was eloquently
expressed in 1937 by Mr. Chief Justice Hughes -- great man and great Chief Justice that he
was -- when the Court held a man could not be punished for attending a meeting run by
Communists.
"The greater the importance of safeguarding the community from incitements to the
overthrow of our institutions by force and violence, the more imperative is the need to
preserve inviolate the constitutional rights of free speech, free press and free
Page 403 U. S. 720
assembly in order to maintain the opportunity for free political discussion, to the end that
government may be responsive to the will of the people and that changes, if desired, may
be obtained by peaceful means. Therein lies the security of the Republic, the very
foundation of constitutional government. [Footnote 6]"
[Footnote 1]
In introducing the Bill of Rights in the House of Representatives, Madison said:
"[B]ut I believe that the great mass of the people who opposed [the Constitution] disliked
it because it did not contain effectual provisions against the encroachments on particular
rights. . . ."
1 Annals of Cong. 433. Congressman Goodhue added:
"[I]t is the wish of many of our constituents that something should be added to the
Constitution to secure in a stronger manner their liberties from the inroads of power."
Id. at 426.
[Footnote 2]
The other parts were:
"The civil rights of none shall be abridged on account of religious belief or worship, nor
shall any national religion be established, nor shall the full and equal rights of conscience
be in any manner, or on any pretext, infringed."
"The people shall not be restrained from peaceably assembling and consulting for their
common good, nor from applying to the Legislature by petitions, or remonstrances, for
redress of their grievances."
1 Annals of Cong. 434.
[Footnote 3]
Tr. of Oral Arg. 76.
[Footnote 4]
Brief for the United States 13-14.
[Footnote 5]
Compare the views of the Solicitor General with those of James Madison, the author of the
First Amendment. When speaking of the Bill of Rights in the House of Representatives,
Madison said:
"If they [the first ten amendments] are incorporated into the Constitution, independent
tribunals of justice will consider themselves in a peculiar manner the guardians of those
rights; they will be an impenetrable bulwark against every assumption of power in the
Legislative or Executive; they will be naturally led to resist every encroachment upon
rights expressly stipulated for in the Constitution by the declaration of rights."
1 Annals of Cong. 439.
[Footnote 6]
De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring.
While I join the opinion of the Court, I believe it necessary to express my views more fully.
It should be noted at the outset that the First Amendment provides that "Congress shall
male no law . . . abridging the freedom of speech, or of the press." That leaves, in my
view, no room for governmental restraint on the press. [Footnote 2/1]
There is, moreover, no statute barring the publication by the press of the material which
the Times and the Post seek to use. Title 18 U.S.C. 793(e) provides that
"[w]hoever having unauthorized possession of, access to, or control over any document,
writing . . . or information relating to the national defense which information the possessor
has reason to believe could be used to the injury of the United States or to the advantage
of any foreign nation, willfully communicates . . . the same to any person not entitled to
receive it . . . [s]hall be fined
Page 403 U. S. 721

not more than $10,000 or imprisoned not more than ten years, or both."
The Government suggests that the word "communicates" is broad enough to encompass
publication.
There are eight sections in the chapter on espionage and censorship, 792-799. In three
of those eight, "publish" is specifically mentioned: 794(b) applies to
"Whoever, in time of war, with intent that the same shall be communicated to the enemy,
collects, records, publishes, or communicates . . . [the disposition of armed forces]."
Section 797 applies to whoever "reproduces, publishes, sells, or gives away" photographs
of defense installations.
Section 798, relating to cryptography, applies to whoever: "communicates, furnishes,

transmits, or otherwise makes available . . . orpublishes" the described material. [Footnote
2/2] (Emphasis added.)
Thus, it is apparent that Congress was capable of, and did, distinguish between publishing
and communication in the various sections of the Espionage Act.
The other evidence that 793 does not apply to the press is a rejected version of 793.
That version read:
"During any national emergency resulting from a war to which the United States is a
party, or from threat of such a war, the President may, by proclamation, declare the
existence of such emergency and, by proclamation, prohibit the publishing or
communicating of, or the attempting to publish or communicate any information relating
to the national defense which, in his judgment, is of such character that it is or might be
useful to the
Page 403 U. S. 722
enemy."
55 Cong.Rec. 1763. During the debates in the Senate, the First Amendment was
specifically cited, and that provision was defeated. 55 Cong.Rec. 2167.
Judge Gurfein's holding in the Times case that this Act does not apply to this case was
therefore preeminently sound. Moreover, the Act of September 23, 1950, in amending 18
U.S.C. 793 states in 1(b) that:
"Nothing in this Act shall be construed to authorize, require, or establish military or civilian
censorship or in any way to limit or infringe upon freedom of the press or of speech as
guaranteed by the Constitution of the United States and no regulation shall be
promulgated hereunder having that effect."
64 Stat. 987. Thus, Congress has been faithful to the command of the First Amendment in
this area.
So any power that the Government possesses must come from its "inherent power."
The power to wage war is "the power to wage war successfully." See Hirabayashi v. United
States, 320 U. S. 81, 320 U. S. 93. But the war power stems from a declaration of war. The
Constitution by Art. I, 8, gives Congress, not the President, power "[t]o declare War."
Nowhere are presidential wars authorized. We need not decide, therefore, what leveling
effect the war power of Congress might have.
These disclosures [Footnote 2/3] may have a serious impact. But that is no basis for
sanctioning a previous restraint on
Page 403 U. S. 723
the press. As stated by Chief Justice Hughes in Near v. Minnesota, 283 U. S. 697, 283 U. S.
719-720:
"While reckless assaults upon public men, and efforts to bring obloquy upon those who
are endeavoring faithfully to discharge official duties, exert a baleful influence and
deserve the severest condemnation in public opinion, it cannot be said that this abuse is
greater, and it is believed to be less, than that which characterized the period in which our
institutions took shape. Meanwhile, the administration of government has become more
complex, the opportunities for malfeasance and corruption have multiplied, crime has
grown to most serious proportions, and the danger of its protection by unfaithful officials
7
and of the impairment of the fundamental security of life and property by criminal
alliances and official neglect, emphasizes the primary need of a vigilant and courageous
press, especially in great cities. The fact that the liberty of the press may be abused by
miscreant purveyors of scandal does not make any the less necessary the immunity of the
press from previous restraint in dealing with official misconduct."
As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U. S.
415, 402 U. S. 419, "[a]ny prior restraint on expression comes to this Court with a "heavy
presumption" against its constitutional validity."
The Government says that it has inherent powers to go into court and obtain an injunction
to protect the national interest, which, in this case, is alleged to be national security.
Near v. Minnesota, 283 U. S. 697, repudiated that expansive doctrine in no uncertain
terms.
The dominant purpose of the First Amendment was to prohibit the widespread practice of
governmental suppression
Page 403 U. S. 724
of embarrassing information. It is common knowledge that the First Amendment was
adopted against the widespread use of the common law of seditious libel to punish the
dissemination of material that is embarrassing to the powers-that-be. See T. Emerson, The
System of Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United
States, c. XIII (1941). The present cases will, I think, go down in history as the most
dramatic illustration of that principle. A debate of large proportions goes on in the Nation
over our posture in Vietnam. That debate antedated the disclosure of the contents of the
present documents. The latter are highly relevant to the debate in progress.
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic
errors. Open debate and discussion of public issues are vital to our national health. On
public questions, there should be "uninhibited, robust, and wide-open" debate. New York
Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 269-270.
I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay of
the Court of Appeals in the Times case, and direct that it affirm the District Court.
The stays in these cases that have been in effect for more than a week constitute a
flouting of the principles of the First Amendment as interpreted in Near v. Minnesota.
[Footnote 2/1]
See Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 267 (dissenting opinion of MR. JUSTICE
BLACK), 284 (my dissenting opinion);Roth v. United States, 354 U. S. 476, 354 U. S.
508 (my dissenting opinion which MR. JUSTICE BLACK joined); Yates v. United States,354
U. S. 298, 354 U. S. 339 (separate opinion of MR. JUSTICE BLACK which I joined); New York
Times Co. v. Sullivan, 376 U. S. 254,376 U. S. 293 (concurring opinion of MR. JUSTICE
BLACK which I joined); Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 80 (my concurring
opinion which MR. JUSTICE BLACK joined).
[Footnote 2/2]
These documents contain data concerning the communications system of the United
States, the publication of which is made a crime. But the criminal sanction is not urged by
the United States as the basis of equity power.
[Footnote 2/3]
There are numerous sets of this material in existence, and they apparently are not under
any controlled custody. Moreover, the President has sent a set to the Congress. We start,
then, with a case where there already is rather wide distribution of the material that is
destined for publicity, not secrecy. I have gone over the material listed in the in
camera brief of the United States. It is all history, not future events. None of it is more
recent than 1968.
MR. JUSTICE BRENNAN, concurring.
I
I write separately in these cases only to emphasize what should be apparent: that our
judgments in the present cases may not be taken to indicate the propriety, in the future,
of issuing temporary stays and restraining
Page 403 U. S. 725
orders to block the publication of material sought to be suppressed by the Government.
So far as I can determine, never before has the United States sought to enjoin a
newspaper from publishing information in its possession. The relative novelty of the
questions presented, the necessary haste with which decisions were reached, the
magnitude of the interests asserted, and the fact that all the parties have concentrated
their arguments upon the question whether permanent restraints were proper may have
justified at least some of the restraints heretofore imposed in these cases. Certainly it is
difficult to fault the several courts below for seeking to assure that the issues here
involved were preserved for ultimate review by this Court. But even if it be assumed that
some of the interim restraints were proper in the two cases before us, that assumption
has no bearing upon the propriety of similar judicial action in the future. To begin with,
there has now been ample time for reflection and judgment; whatever values there may
be in the preservation of novel questions for appellate review may not support any
restraints in the future. More important, the First Amendment stands as an absolute bar to
the imposition of judicial restraints in circumstances of the kind presented by these cases.
II
The error that has pervaded these cases from the outset was the granting of any
injunctive relief whatsoever, interim or otherwise. The entire thrust of the Government's
claim throughout these cases has been that publication of the material sought to be
enjoined "could," or "might," or "may" prejudice the national interest in various ways. But
the First Amendment tolerates absolutely no prior judicial restraints of the press
predicated upon surmise or conjecture that untoward consequences
Page 403 U. S. 726
may result.* Our cases, it is true, have indicated that there is a single, extremely narrow
class of cases in which the First Amendment's ban on prior judicial restraint may be
overridden. Our cases have thus far indicated that such cases may arise only when the
Nation "is at war,"Schenck v. United States, 249 U. S. 47, 249 U. S. 52 (1919), during
which times
8
"[n]o one would question but that a government might prevent actual obstruction to its
recruiting service or the publication of the sailing dates of transports or the number and
location of troops."
Near v. Minnesota, 283 U. S. 697, 283 U. S. 716 (1931). Even if the present world situation
were assumed to be tantamount to a time of war, or if the power of presently available
armaments would justify even in peacetime the suppression of information that would set
in motion a nuclear holocaust, in neither of these actions has the Government presented
or even alleged that publication of items from or based upon the material at issue would
cause the happening of an event of that nature. "[T]he chief purpose of [the First
Amendment's] guaranty [is] to prevent previous restraints upon publication." Near v.
Minnesota, supra, at 283 U. S. 713. Thus, only governmental allegation and proof that
publication must inevitably, directly,
Page 403 U. S. 727
and immediately cause the occurrence of an event kindred to imperiling the safety of a
transport already at sea can support even the issuance of an interim restraining order. In
no event may mere conclusions be sufficient, for if the Executive Branch seeks judicial aid
in preventing publication, it must inevitably submit the basis upon which that aid is sought
to scrutiny by the judiciary. And, therefore, every restraint issued in this case, whatever its
form, has violated the First Amendment -- and not less so because that restraint was
justified as necessary to afford the courts an opportunity to examine the claim more
thoroughly. Unless and until the Government has clearly made out its case, the First
Amendment commands that no injunction may issue.
* Freedman v. Maryland, 380 U. S. 51 (1965), and similar cases regarding temporary
restraints of allegedly obscene materials are not in point. For those cases rest upon the
proposition that "obscenity is not protected by the freedoms of speech and press." Roth v.
United States, 354 U. S. 476, 354 U. S. 481 (1957). Here there is no question but that the
material sought to be suppressed is within the protection of the First Amendment; the only
question is whether, notwithstanding that fact, its publication may be enjoined for a time
because of the presence of an overwhelming national interest. Similarly, copyright cases
have no pertinence here: the Government is not asserting an interest in the particular
form of words chosen in the documents, but is seeking to suppress the ideas expressed
therein. And the copyright laws, of course, protect only the form of expression, and not
the ideas expressed.
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring.
In the governmental structure created by our Constitution, the Executive is endowed with
enormous power in the two related areas of national defense and international relations.
This power, largely unchecked by the Legislative [Footnote 3/1] and Judicial [Footnote 3/2]
branches, has been pressed to the very hilt since the advent of the nuclear missile age.
For better or for worse, the simple fact is that a
national defense and international affairs may lie in an enlightened citizenry -- in an

informed and critical public opinion which alone can here protect the values of democratic
government. For this reason, it is perhaps here that a press that is alert, aware, and free
most vitally serves the basic purpose of the First Amendment. For, without an informed
and free press, there cannot be an enlightened people.
Yet it is elementary that the successful conduct of international diplomacy and the
maintenance of an effective national defense require both confidentiality and secrecy.
Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless
they can be assured that their confidences will be kept. And, within our own executive
departments, the development of considered and intelligent international policies would
be impossible if those charged with their formulation could not communicate with each
other freely, frankly, and in confidence. In the area of basic national defense, the frequent
need for absolute secrecy is, of course, self-evident.
I think there can be but one answer to this dilemma, if dilemma it be. The responsibility
must be where the power is. [Footnote 3/3] If the Constitution gives the Executive
Page 403 U. S. 729
a large degree of unshared power in the conduct of foreign affairs and the maintenance of
our national defense, then, under the Constitution, the Executive must have the largely
unshared duty to determine and preserve the degree of internal security necessary to
exercise that power successfully. It is an awesome responsibility, requiring judgment and
wisdom of a high order. I should suppose that moral, political, and practical considerations
would dictate that a very first principle of that wisdom would be an insistence upon
avoiding secrecy for its own sake. For when everything is classified, then nothing is
classified, and the system becomes one to be disregarded by the cynical or the careless,
and to be manipulated by those intent on self-protection or self-promotion. I should
suppose, in short, that the hallmark of a truly effective internal security system would be
the maximum possible disclosure, recognizing that secrecy can best be preserved only
when credibility is truly maintained. But, be that as it may, it is clear to me that it is the
constitutional duty of the Executive -- as a matter of sovereign prerogative, and not as a
matter of law as the courts know law -- through the promulgation and enforcement of
executive regulations, to protect
Page 403 U. S. 730
the confidentiality necessary to carry out its responsibilities in the fields of international
relations and national defense.
Page 403 U. S. 728

President of the United States possesses vastly greater constitutional independence in
these two vital areas of power than does, say, a prime minister of a country with a
parliamentary form of government.
This is not to say that Congress and the courts have no role to play. Undoubtedly,
Congress has the power to enact specific and appropriate criminal laws to protect
government property and preserve government secrets. Congress has passed such laws,
and several of them are of very colorable relevance to the apparent circumstances of
these cases. And if a criminal prosecution is instituted, it will be the responsibility of the
courts to decide the applicability of the criminal law under which the charge is brought.
Moreover, if Congress should pass a specific law authorizing civil proceedings in this field,
the courts would likewise have the duty to decide the constitutionality of such a law, as
well as its applicability to the facts proved.
In the absence of the governmental checks and balances present in other areas of our
national life, the only effective restraint upon executive policy and power in the areas of
But in the cases before us, we are asked neither to construe specific regulations nor to
apply specific laws. We are asked, instead, to perform a function that the Constitution
9
gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the
publication by two newspapers of material that the Executive Branch insists should not, in
the national interest, be published. I am convinced that the Executive is correct with
respect to some of the documents involved. But I cannot say that disclosure of any of
them will surely result in direct, immediate, and irreparable damage to our Nation or its
people. That being so, there can under the First Amendment be but one judicial resolution
of the issues before us. I join the judgments of the Court.
[Footnote 3/1]
The President's power to make treaties and to appoint ambassadors is, of course, limited
by the requirement of Art. II, 2, of the Constitution that he obtain the advice and consent
of the Senate. Article I, 8, empowers Congress to "raise and support Armies," and
"provide and maintain a Navy." And, of course, Congress alone can declare war. This
power was last exercised almost 30 years ago at the inception of World War II. Since the
end of that war in 1945, the Armed Forces of the United States have suffered
approximately half a million casualties in various parts of the world.
[Footnote 3/2]
See Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U. S. 103; Hirabayashi v.
United States, 320 U. S. 81; United States v. Curtiss-Wright Corp., 299 U. S. 304; cf. Mora
v. McNamara, 128 U.S.App.D.C. 297, 387 F.2d 862, cert. denied, 389 U. S. 934.
[Footnote 3/3]
"It is quite apparent that, if, in the maintenance of our international relations,
embarrassment -- perhaps serious embarrassment -- is to be avoided and success for our
aims achieved, congressional legislation which is to be made effective through negotiation
and inquiry within the international field must often accord to the President a degree of
discretion and freedom from statutory restriction which would not be admissible were
domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of
knowing the conditions which prevail in foreign countries, and especially is this true in
time of war. He has his confidential sources of information. He has his agents in the form
of diplomatic, consular and other officials. Secrecy in respect of information gathered by
them may be highly necessary, and the premature disclosure of it productive of harmful
results. Indeed, so clearly is this true that the first President refused to accede to a
request to lay before the House of Representatives the instructions, correspondence and
documents relating to the negotiation of the Jay Treaty -- a refusal the wisdom of which
was recognized by the House itself, and has never since been doubted. . . ."
United States v. Curtiss-Wright Corp., 299 U. S. 304, 299 U. S. 320.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.
I concur in today's judgments, but only because of the concededly extraordinary
protection against prior restraints
Page 403 U. S. 731
enjoyed by the press under our constitutional system. I do not say that in no
circumstances would the First Amendment permit an injunction against publishing
information about government plans or operations. [Footnote 4/1] Nor, after examining
the materials the Government characterizes as the most sensitive and destructive, can I
deny that revelation of these documents will do substantial damage to public interests.
Indeed, I am confident that their disclosure will have that result. But I nevertheless agree
that the United States has not satisfied the very heavy burden that it must meet to
warrant an injunction against publication in these cases, at least in the absence of express
and appropriately limited congressional authorization for prior restraints in circumstances
such as these.
Page 403 U. S. 732

The Government's position is simply stated: the responsibility of the Executive for the
conduct of the foreign affairs and for the security of the Nation is so basic that the
President is entitled to an injunction against publication of a newspaper story whenever
he can convince a court that the information to be revealed threatens "grave and
irreparable" injury to the public interest; [Footnote 4/2] and the injunction should issue
whether or not the material to be published is classified, whether or not publication would
be lawful under relevant criminal statutes enacted by Congress, and regardless of the
circumstances by which the newspaper came into possession of the information. At least
in the absence of legislation by Congress, based on its own investigations and findings, I
am quite unable to agree that the inherent powers of the Executive and the courts reach
so far as to authorize remedies having such sweeping potential for inhibiting publications
by the press. Much of the difficulty inheres in the "grave and irreparable danger" standard
suggested by the United States. If the United States were to have judgment under such a
standard in these cases, our decision would be of little guidance to other courts in other
cases, for the material at issue here would not be available from the Court's opinion or
from public records, nor would it be published by the press. Indeed, even today, where we
hold that the United States has not met its burden, the material remains sealed in court
records and it is
Page 403 U. S. 733
properly not discussed in today's opinions. Moreover, because the material poses
substantial dangers to national interests, and because of the hazards of criminal
sanctions, a responsible press may choose never to publish the more sensitive materials.
To sustain the Government in these cases would start the courts down a long and
hazardous road that I am not willing to travel, at least without congressional guidance and
direction.
It is not easy to reject the proposition urged by the United States, and to deny relief on its
good faith claims in these cases that publication will work serious damage to the country.
But that discomfiture is considerably dispelled by the infrequency of prior-restraint cases.
Normally, publication will occur and the damage be done before the Government has
either opportunity or grounds for suppression. So here, publication has already begun, and
a substantial part of the threatened damage has already occurred. The fact of a massive
breakdown in security is known, access to the documents by many unauthorized people is
undeniable, and the efficacy of equitable relief against these or other newspapers to avert
anticipated damage is doubtful, at best.
What is more, terminating the ban on publication of the relatively few sensitive
documents the Government now seeks to suppress does not mean that the law either
requires or invites newspapers or others to publish them, or that they will be immune from
criminal action if they do. Prior restraints require an unusually heavy justification under
the First Amendment, but failure by the Government to justify prior restraints does not
measure its constitutional entitlement to a conviction for criminal publication. That the
10
Government mistakenly chose to proceed by injunction does not mean that it could not
successfully proceed in another way.
When the Espionage Act was under consideration in
Page 403 U. S. 734
1917, Congress eliminated from the bill a provision that would have given the President
broad powers in time of war to proscribe, under threat of criminal penalty, the publication
of various categories of information related to the national defense. [Footnote 4/3]
Congress at that time was unwilling to clothe the President with such far-reaching powers
to monitor the press, and those opposed to this part of the legislation assumed that a
necessary concomitant of such power was the power to "filter out the news to the people
through some man." 55 Cong.Rec. 2008 (remarks of Sen. Ashurst). However, these same
members of Congress appeared to have little doubt that newspapers would be subject to
criminal prosecution if they insisted on publishing information of the type Congress had
itself determined should not be revealed. Senator Ashurst, for example, was quite sure
that the editor of such a newspaper
"should be punished if he did publish information as to the movements of the fleet, the
troops, the aircraft, the location of powder factories, the location of defense works, and all
that sort of thing."
Id. at 2009. [Footnote 4/4]
Page 403 U. S. 735
The Criminal Code contains numerous provisions potentially relevant to these cases.
Section 797 [Footnote 4/5] makes it a crime to publish certain photographs or drawings of
military installations. Section 798, [Footnote 4/6] also in precise language, proscribes
knowing and willful publication of any classified information concerning the cryptographic
systems
Page 403 U. S. 736
or communication intelligence activities of the United States, as well as any information
obtained from communication intelligence operations. [Footnote 4/7] If any of the material
here at issue is of this nature, the newspapers are presumably now on full notice of the
position of the United States, and must face the consequences if they
Page 403 U. S. 737
publish. I would have no difficulty in sustaining convictions under these sections on facts
that would not justify the intervention of equity and the imposition of a prior restraint.
The same would be true under those sections of the Criminal Code casting a wider net to
protect the national defense. Section 793(e) [Footnote 4/8] makes it a criminal act for any
unauthorized possessor of a document "relating to the national defense" either (1)
willfully to communicate or cause to be communicated that document to any person not
entitled to receive it or (2) willfully to retain the document and fail to deliver it to an
officer of the United States entitled to receive it. The subsection was added in 1950
because preexisting law provided no
Page 403 U. S. 738
penalty for the unauthorized possessor unless demand for the documents was made.
[Footnote 4/9]
"The dangers surrounding the unauthorized possession of such items are self-evident,
Page 403 U. S. 739

and it is deemed advisable to require their surrender in such a case, regardless of
demand, especially since their unauthorized possession may be unknown to the
authorities who would otherwise make the demand."
S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before us,
the unpublished documents have been demanded by the United States, and their import
has been made known at least to counsel for the newspapers involved. In Gorin v. United
States, 312 U. S. 19, 312 U. S. 28 (1941), the words "national defense" as used in a
predecessor of 793 were held by a unanimous Court to have "a well understood
connotation" -- a "generic concept of broad connotations, referring to the military and
naval establishments and the related activities of national preparedness" -- and to be
"sufficiently definite to apprise the public of prohibited activities"
Page 403 U. S. 740
and to be consonant with due process. 312 U.S. at 312 U. S. 28. Also, as construed by the
Court in Gorin, information "connected with the national defense" is obviously not limited
to that threatening "grave and irreparable" injury to the United States. [Footnote 4/10]
It is thus clear that Congress has addressed itself to the problems of protecting the
security of the country and the national defense from unauthorized disclosure of
potentially damaging information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579, 343 U. S. 585-586 (1952); see also id. at 343 U. S. 593-628 (Frankfurter, J.,
concurring). It has not, however, authorized the injunctive remedy against threatened
publication. It has apparently been satisfied to rely on criminal sanctions and their
deterrent effect on the responsible, as well as the irresponsible, press. I am not, of course,
saying that either of these newspapers has yet committed a crime, or that either would
commit a crime if it published all the material now in its possession. That matter must
await resolution in the context of a criminal proceeding if one is instituted by the United
States. In that event, the issue of guilt or innocence would be determined by procedures
and standards quite different from those that have purported to govern these injunctive
proceedings.
[Footnote 4/1]
The Congress has authorized a strain of prior restraints against private parties in certain
instances. The National Labor Relations Board routinely issues cease and desist orders
against employers who it finds have threatened or coerced employees in the exercise of
protected rights. See 29 U.S.C. 160(c). Similarly, the Federal Trade Commission is
empowered to impose cease and desist orders against unfair methods of competition. 15
U.S.C. 45(b). Such orders can, and quite often do, restrict what may be spoken or written
under certain circumstances. See, e.g., NLRB v. Gissel Packing Co., 395 U. S. 575, 395 U.
S. 616-620 (1969). Article I, 8, of the Constitution authorizes Congress to secure the
"exclusive right" of authors to their writings, and no one denies that a newspaper can
properly be enjoined from publishing the copyrighted works of another. See Westermann
Co. v. Dispatch Co., 249 U. S. 100 (1919). Newspapers do themselves rely from time to
time on the copyright as a means of protecting their accounts of important events.
However, those enjoined under the statutes relating to the National Labor Relations Board
and the Federal Trade Commission are private parties, not the press, and, when the press
is enjoined under the copyright laws, the complainant is a private copyright holder
11
enforcing a private right. These situations are quite distinct from the Government's
request for an injunction against publishing information about the affairs of government, a
request admittedly not based on any statute.
[Footnote 4/2]
The "grave and irreparable danger" standard is that asserted by the Government in this
Court. In remanding to Judge Gurfein for further hearings in the Times litigation, five
members of the Court of Appeals for the Second Circuit directed him to determine
whether disclosure of certain items specified with particularity by the Government would
"pose such grave and immediate danger to the security of the United States as to warrant
their publication being enjoined."
[Footnote 4/3]
"Whoever, in time of war, in violation of reasonable regulations to be prescribed by the
President, which he is hereby authorized to make and promulgate, shall publish any
information with respect to the movement, numbers, description, condition, or disposition
of any of the armed forces, ships, aircraft, or war materials of the United States, or with
respect to the plans or conduct of any naval or military operations, or with respect to any
works or measures undertaken for or connected with, or intended for the fortification or
defense of any place, or any other information relating to the public defense calculated to
be useful to the enemy, shall be punished by a fine . . . or by imprisonment. . . ."
55 Cong.Rec. 2100.
[Footnote 4/4]
Senator Ashurst also urged that
"'freedom of the press' means freedom from the restraints of a censor, means the
absolute liberty and right to publish whatever you wish; but you take your chances of
punishment in the courts of your country for the violation of the laws of libel, slander, and
treason."
55 Cong.Rec. 2005.
[Footnote 4/5]
Title 18 U.S.C. 797 provides:
"On and after thirty days from the date upon which the President defines any vital military
or naval installation or equipment as being within the category contemplated under
section 795 of this title, whoever reproduces, publishes, sells, or gives away any
photograph, sketch, picture, drawing, map, or graphical representation of the vital military
or naval installations or equipment so defined, without first obtaining permission of the
commanding officer of the military or naval post, camp, or station concerned, or higher
authority, unless such photograph, sketch, picture, drawing, map, or graphical
representation has clearly indicated thereon that it has been censored by the proper
military or naval authority, shall be fined not more than $1,000 or imprisoned not more
than one year, or both."
[Footnote 4/6]
In relevant part 18 U.S.C. 798 provides:
"(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise
makes available to an unauthorized person, or publishes, or uses in any manner
prejudicial to the safety or interest of the United States or for the benefit of any foreign
government to the detriment of the United States any classified information -- "
"(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic
system of the United States or any foreign government; or"
"(2) concerning the design, construction, use, maintenance, or repair of any device,
apparatus, or appliance used or prepared or planned for use by the United States or any
foreign government for cryptographic or communication intelligence purposes; or"
"(3) concerning the communication intelligence activities of the United States or any
foreign government; or"
"(4) obtained by the process of communication intelligence from the communications of
any foreign government, knowing the same to have been obtained by such processes -- "
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both."
[Footnote 4/7]
The purport of 18 U.S.C. 798 is clear. Both the House and Senate Reports on the bill, in
identical terms, speak of furthering the security of the United States by preventing
disclosure of information concerning the cryptographic systems and the communication
intelligence systems of the United States, and explaining that
"[t]his bill makes it a crime to reveal the methods, techniques, and materiel used in the
transmission by this Nation of enciphered or coded messages. . . . Further, it makes it a
crime to reveal methods used by this Nation in breaking the secret codes of a foreign
nation. It also prohibits under certain penalties the divulging of any information which
may have come into this Government's hands as a result of such a code-breaking."
H.R.Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute was
explained as covering "only a small category of classified matter, a category which is both
vital and vulnerable to an almost unique degree." Id. at 2. Existing legislation was deemed
inadequate.
"At present, two other acts protect this information, but only in a limited way. These are
the Espionage Act of 1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat. 122).
Under the first, unauthorized revelation of information of this kind can be penalized only if
it can be proved that the person making the revelation did so with an intent to injure the
United States. Under the second, only diplomatic codes and messages transmitted in
diplomatic codes are protected. The present bill is designed to protect against knowing
and willful publication or any other revelation of all important information affecting the
United States communication intelligence operations and all direct information about all
United States codes and ciphers."
Ibid. Section 798 obviously was intended to cover publications by nonemployees of the
Government, and to ease the Government's burden in obtaining convictions. See H.R.Rep.
No. 1895, supra, at 2-5. The identical Senate Report, not cited in parallel in the text of this
footnote, is S.Rep. No. 111, 81st Cong., 1st Sess. (1949).
[Footnote 4/8]
Section 793(e) of 18 U.S.C. provides that:
"(e) Whoever having unauthorized possession of, access to, or control over any document,
writing, code book, signal book, sketch, photograph, photographic negative, blueprint,
plan, map, model, instrument, appliance, or note relating to the national defense, or
information relating to the national defense which information the possessor has reason to
believe could be used to the injury of the United States or to the advantage of any foreign
nation, willfully communicates, delivers, transmits or causes to be communicated,
12
delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be

communicated, delivered, or transmitted the same to any person not entitled to receive it,
or willfully retains the same and fails to deliver it to the officer or employee of the United
States entitled to receive it;"
is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It should
also be noted that 18 U.S.C. 793(g), added in 1950 (see 64 Stat. 1004; S.Rep. No. 239,
pt. 1, 81st Cong., 2d Sess., 9 (1950)), provides that,
"[i]f two or more persons conspire to violate any of the foregoing provisions of this
section, and one or more of such persons do any act to effect the object of the conspiracy,
each of the parties to such conspiracy shall be subject to the punishment provided for the
offense which is the object of such conspiracy."
[Footnote 4/9]
The amendment of 793 that added subsection (e) was part of the Subversive Activities
Control Act of 1950, which was, in turn, Title I of the Internal Security Act of 1950. See 64
Stat. 987. The report of the Senate Judiciary Committee best explains the purposes of the
amendment:
"Section 18 of the bill amends section 793 of title 18 of the United States Code (espionage
statute). The several paragraphs of section 793 of title 18 are designated as subsections
(a) through (g) for purposes of convenient reference. The significant changes which would
be made in section 793 of title 18 are as follows: "
"(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the
unlawful dissemination of 'information relating to the national defense which information
the possessor has reason to believe could be used to the injury of the United States or to
the advantage of any foreign nation.' The phrase 'which information the possessor has
reason to believe could be used to the injury of the United States or to the advantage of
any foreign nation' would modify only 'information relating to the national defense,' and
not the other items enumerated in the subsection. The fourth paragraph of section 793 is
also amended to provide that only those with lawful possession of the items relating to
national defense enumerated therein may retain them subject to demand therefor. Those
who have unauthorized possession of such items are treated in a separate subsection."
"(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized possessors of
items enumerated in paragraph 4 of section 793 must surrender possession thereof to the
proper authorities without demand. Existing law provides no penalty for the unauthorized
possession of such items unless a demand for them is made by the person entitled to
receive them. The dangers surrounding the unauthorized possession of such items are
self-evident, and it is deemed advisable to require their surrender in such a case,
regardless of demand, especially since their unauthorized possession may be unknown to
the authorities who would otherwise make the demand. The only difference between
subsection (d) and subsection (e) of section 793 is that a demand by the person entitled
to receive the items would be a necessary element of an offense under subsection (d)
where the possession is lawful, whereas such a demand would not be a necessary
element of an offense under subsection (e) where the possession is unauthorized."
S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 8-9 (1950) (emphasis added).
It seems clear from the foregoing, contrary to the intimations of the District Court for the
Southern District of New York in this case, that, in prosecuting for communicating or
withholding a "document," as contrasted with similar action with respect to "information,"
the Government need not prove an intent to injure the United States or to benefit a
foreign nation, but only willful and knowing conduct. The District Court relied on Gorin v.
United States, 312 U. S. 19 (1941). But that case arose under other parts of the
predecessor to 793, see 312 U.S. at312 U. S. 21-22 -- parts that imposed different intent
standards not repeated in 793(d) or 793(e). Cf. 18 U.S.C. 793(a), (b), and (c). Also,
from the face of subsection (e) and from the context of the Act of which it was a part, it
seems undeniable that a newspaper, as well as others unconnected with the Government,
are vulnerable to prosecution under 793(e) if they communicate or withhold the
materials covered by that section. The District Court ruled that "communication" did not
reach publication by a newspaper of documents relating to the national defense. I
intimate no views on the correctness of that conclusion. But neither communication nor
publication is necessary to violate the subsection.
[Footnote 4/10]
Also relevant is 18 U.S.C. 794. Subsection (b) thereof forbids in time of war the collection
or publication, with intent that it shall be communicated to the enemy, of any information
with respect to the movements of military forces,
"or with respect to the plans or conduct . . . of any naval or military operations . . . or any
other information relating to the public defense, which might be useful to the enemy. . . ."
MR. JUSTICE MARSHALL, concurring.
The Government contends that the only issue in these cases is whether, in a suit by the
United States, "the First Amendment bars a court from prohibiting a newspaper
Page 403 U. S. 741
from publishing material whose disclosure would pose a 'grave and immediate danger to
the security of the United States.' " Brief for the United States 7. With all due respect, I
believe the ultimate issue in these cases is even more basic than the one posed by the
Solicitor General. The issue is whether this Court or the Congress has the power to make
law.
In these cases, there is no problem concerning the President's power to classify
information as "secret" or "top secret." Congress has specifically recognized Presidential
authority, which has been formally exercised in Exec.Order 10501 (1953), to classify
documents and information. See, e.g., 18 U.S.C. 798; 50 U.S.C. 783. [Footnote 5/1] Nor
is there any issue here regarding the President's power as Chief Executive and
Commander in Chief to protect national security by disciplining employees who disclose
information and by taking precautions to prevent leaks.
The problem here is whether, in these particular cases, the Executive Branch has
authority to invoke the equity jurisdiction of the courts to protect what it believes to be
the national interest. See In re Debs, 158 U. S. 564, 158 U. S. 584 (1895). The
Government argues that, in addition to the inherent power of any government to protect
itself, the President's power to conduct foreign affairs and his position as Commander in
Chief give him authority to impose censorship on the press to protect his ability to deal
effectively with foreign nations and to conduct the military affairs of the country. Of
course, it is beyond cavil that the President has broad powers by virtue of his primary
responsibility for the conduct of our foreign affairs and his position as Commander in
Chief. Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U. S.
103 (1948); Hirabayashi v. United States, 320 U. S. 81, 320 U. S. 93 (1943); United States
v. Curtiss
13
Page 403 U. S. 742

Wright Corp., 299 U. S. 304 (1936). [Footnote 5/2] And, in some situations, it may be that,
under whatever inherent powers the Government may have, as well as the implicit
authority derived from the President's mandate to conduct foreign affairs and to act as
Commander in Chief, there is a basis for the invocation of the equity jurisdiction of this
Court as an aid to prevent the publication of material damaging to "national security,"
however that term may be defined.
It would, however, be utterly inconsistent with the concept of separation of powers for this
Court to use its power of contempt to prevent behavior that Congress has specifically
declined to prohibit. There would be a similar damage to the basic concept of these coequal branches of Government if, when the Executive Branch has adequate authority
granted by Congress to protect "national security," it can choose, instead, to invoke the
contempt power of a court to enjoin the threatened conduct. The Constitution provides
that Congress shall make laws, the President execute laws, and courts interpret
laws. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). It did not provide for
government by injunction in which the courts and the Executive Branch can "make law"
without regard to the action of Congress. It may be more convenient for the Executive
Branch if it need only convince a judge to prohibit conduct, rather than ask the Congress
to pass a law, and it may be more convenient to enforce a contempt order than to seek a
criminal conviction in a jury trial. Moreover, it may be considered politically wise to get a
court to share the responsibility for arresting those who the Executive Branch has
probable cause to believe are violating the law. But convenience and political
considerations of the
Page 403 U. S. 743
moment do not justify a basic departure from the principles of our system of government.
In these cases, we are not faced with a situation where Congress has failed to provide the
Executive with broad power to protect the Nation from disclosure of damaging state
secrets. Congress has, on several occasions, given extensive consideration to the problem
of protecting the military and strategic secrets of the United States. This consideration has
resulted in the enactment of statutes making it a crime to receive, disclose, communicate,
withhold, and publish certain documents, photographs, instruments, appliances, and
information. The bulk of these statutes is found in chapter 37 of U.S.C. Title 18, entitled
Espionage and Censorship. [Footnote 5/3] In that chapter,
Page 403 U. S. 744
Congress has provided penalties ranging from a $10,000 fine to death for violating the
various statutes.
Thus, it would seem that in order for this Court to issue an injunction it would require a
showing that such an injunction would enhance the already exiting power of the
Government to act. See Bennett v. Laman, 277 N.Y. 368, 14 N.E.2d 439 (1938). It is a
traditional axiom of equity that a court of equity will not do a useless thing, just as it is a
traditional axiom that equity will not enjoin the commission of a crime.See Z. Chafee & E.
Re, Equity 935-954 (5th ed.1967); 1 H. Joyce, Injunctions 580a (1909). Here, there has
been no attempt to make such a showing. The Solicitor General does not even mention in
his brief whether the Government considers that there is probable cause to believe a
crime has been committed, or whether there is a conspiracy to commit future crimes.
If the Government had attempted to show that there was no effective remedy under
traditional criminal law, it would have had to show that there is no arguably applicable
statute. Of course, at this stage, this Court could not and cannot determine whether there
has been a violation of a particular statute or decide the constitutionality of any statute.
Whether a good faith prosecution could have been instituted under any statute could,
however, be determined.
Page 403 U. S. 745
At least one of the many statutes in this area seems relevant to these cases. Congress has
provided in 18 U.S.C. 793(e) that whoever,
"having unauthorized possession of, access to, or control over any document, writing,
code book, signal book . . . or note relating to the national defense, or information relating
to the national defense which information the possessor has reason to believe could be
used to the injury of the United States or to the advantage of any foreign nation, willfully
communicates, delivers, transmits . . . the same to any person not entitled to receive it, or
willfully retains the same and fails to deliver it to the officer or employee of the United
States entitled to receive it . . . [s]hall be fined not more than $10,000 or imprisoned not
more than ten years, or both."
Congress has also made it a crime to conspire to commit any of the offenses listed in 18
U.S.C. 793(e).
It is true that Judge Gurfein found that Congress had not made it a crime to publish the
items and material specified in 793(e). He found that the words "communicates,
delivers, transmits . . ." did not refer to publication of newspaper stories. And that view
has some support in the legislative history, and conforms with the past practice of using
the statute only to prosecute those charged with ordinary espionage. But see 103
Cong.Rec. 10449 (remarks of Sen. Humphrey). Judge Gurfein's view of the statute is not,
however, the only plausible construction that could be given. See my Brother WHITE's
concurring opinion.
Even if it is determined that the Government could not in good faith bring criminal
prosecutions against the New York Times and the Washington Post, it is clear that
Congress has specifically rejected passing legislation that would have clearly given the
President the power he seeks here and made the current activity of the newspapers
unlawful. When Congress specifically declines to make conduct unlawful, it is not for this
Court
Page 403 U. S. 746
to redecide those issues -- to overrule Congress. See Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579 (1952).
On at least two occasions, Congress has refused to enact legislation that would have
made the conduct engaged in here unlawful and given the President the power that he
seeks in this case. In 1917, during the debate over the original Espionage Act, still the
basic provisions of 793, Congress rejected a proposal to give the President in time of war
or threat of war authority to directly prohibit by proclamation the publication of
information relating to national defense that might be useful to the enemy. The proposal
provided that:
14
"During any national emergency resulting from a war to which the United States is a
party, or from threat of such a war, the President may, by proclamation, declare the
existence of such emergency and, by proclamation, prohibit the publishing or
communicating of, or the attempting to publish or communicate any information relating
to the national defense which, in his judgment, is of such character that it is or might be
useful to the enemy. Whoever violates any such prohibition shall be punished by a fine of
not more than $10,000 or by imprisonment for not more than 10 years, or
both: Provided, That nothing in this section shall be construed to limit or restrict any
discussion, comment, or criticism of the acts or policies of the Government or its
representatives or the publication of the same."
55 Cong.Rec. 1763. Congress rejected this proposal after war against Germany had been
declared, even though many believed that there was a grave national emergency and that
the threat of security leaks and espionage was serious. The Executive Branch has not
gone to Congress and requested that the decision to provide such power be reconsidered.
Instead,
Page 403 U. S. 747
the Executive Branch comes to this Court and asks that it be granted the power Congress
refused to give.
In 1957, the United States Commission on Government Security found that
"[a]irplane journals, scientific periodicals, and even the daily newspaper have featured
articles containing information and other data which should have been deleted in whole or
in part for security reasons."
In response to this problem, the Commission proposed that
"Congress enact legislation making it a crime for any person willfully to disclose without
proper authorization, for any purpose whatever, information classified 'secret' or 'top
secret,' knowing, or having reasonable grounds to believe, such information to have been
so classified."
Report of Commission on Government Security 619-620 (1957). After substantial floor
discussion on the proposal, it was rejected. See 103 Cong.Rec. 10447-10450. If the
proposal that Sen. Cotton championed on the floor had been enacted, the publication of
the documents involved here would certainly have been a crime. Congress refused,
however, to make it a crime. The Government is here asking this Court to remake that
decision. This Court has no such power.
Either the Government has the power under statutory grant to use traditional criminal law
to protect the country or, if there is no basis for arguing that Congress has made the
activity a crime, it is plain that Congress has specifically refused to grant the authority the
Government seeks from this Court. In either case, this Court does not have authority to
grant the requested relief. It is not for this Court to fling itself into every breach perceived
by some Government official, nor is it for this Court to take on itself the burden of
enacting law, especially a law that Congress has refused to pass.
I believe that the judgment of the United States Court of Appeals for the District of
Columbia Circuit should
Page 403 U. S. 748
be affirmed and the judgment of the United States Court of Appeals for the Second Circuit
should be reversed insofar as it remands the case for further hearings.
[Footnote 5/1]
See n.3, infra.
[Footnote 5/2]
But see Kent v. Dulles, 357 U. S. 116 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579 (1952).
[Footnote 5/3]
There are several other statutory provisions prohibiting and punishing the dissemination
of information, the disclosure of which Congress thought sufficiently imperiled national
security to warrant that result. These include 42 U.S.C. 2161 through 2166, relating to
the authority of the Atomic Energy Commission to classify and declassify "Restricted Data"
["Restricted Data" is a term of art employed uniquely by the Atomic Energy Act].
Specifically, 42 U.S.C. 2162 authorizes the Atomic Energy Commission to classify certain
information. Title 42 U.S.C. 2274, subsection (a), provides penalties for a person who
"communicates, transmits, or discloses [restricted data] . . . with intent to injure the
United States or with intent to secure an advantage to any foreign nation. . . ."
Subsection (b) of 2274 provides lesser penalties for one who "communicates, transmits,
or discloses" such information "with reason to believe such data will be utilized to injure
the United States or to secure an advantage to any foreign nation. . . ." Other sections of
Title 42 of the United States Code dealing with atomic energy prohibit and punish
acquisition, removal, concealment, tampering with, alteration, mutilation, or destruction
of documents incorporating "Restricted Data" and provide penalties for employees and
former employees of the Atomic Energy Commission, the armed services, contractors and
licensees of the Atomic Energy Commission. Title 42 U.S.C. 2276, 2277. Title 50
U.S.C.App. 781, 56 Stat. 390, prohibits the making of any sketch or other representation
of military installations or any military equipment located on any military installation, as
specified; and, indeed, Congress, in the National Defense Act of 1940, 54 Stat. 676, as
amended, 56 Stat. 179, conferred jurisdiction on federal district courts over civil actions
"to enjoin any violation" thereof. 50 U.S.C.App. 1152(6). Title 50 U.S.C. 783(b) makes it
unlawful for any officers or employees of the United States or any corporation which is
owned by the United States to communicate material which has been "classified" by the
President to any person who that governmental employee knows or has reason to believe
is an agent or representative of any foreign government or any Communist organization.
MR. CHIEF JUSTICE BURGER, dissenting.
So clear are the constitutional limitations on prior restraint against expression that, from
the time of Near v. Minnesota, 283 U. S. 697(1931), until recently in Organization for a
Better Austin v. Keefe, 402 U. S. 415 (1971), we have had little occasion to be concerned
with cases involving prior restraints against news reporting on matters of public interest.
There is, therefore, little variation among the members of the Court in terms of resistance
to prior restraints against publication. Adherence to this basic constitutional principle,
however, does not make these cases simple. In these cases, the imperative of a free and
unfettered press comes into collision with another imperative, the effective functioning of
a complex modern government, and, specifically, the effective exercise of certain
constitutional powers of the Executive. Only those who view the First Amendment as an
absolute in all circumstances -- a view I respect, but reject -- can find such cases as these
to be simple or easy.
15
These cases are not simple for another and more immediate reason. We do not know the
facts of the cases. No District Judge knew all the facts. No Court of Appeals judge knew all
the facts. No member of this Court knows all the facts.
Why are we in this posture, in which only those judges to whom the First Amendment is
absolute and permits of no restraint in any circumstances or for any reason, are really in a
position to act?
I suggest we are in this posture because these cases have been conducted in unseemly
haste. MR. JUSTICE HARLAN covers the chronology of events demonstrating the hectic
pressures under which these cases have been processed, and I need not restate them.
The prompt
Page 403 U. S. 749
setting of these cases reflects our universal abhorrence of prior restraint. But prompt
judicial action does not mean unjudicial haste.
Here, moreover, the frenetic haste is due in large part to the manner in which the Times
proceeded from the date it obtained the purloined documents. It seems reasonably clear
now that the haste precluded reasonable and deliberate judicial treatment of these cases,
and was not warranted. The precipitate action of this Court aborting trials not yet
completed is not the kind of judicial conduct that ought to attend the disposition of a great
issue.
The newspapers make a derivative claim under the First Amendment; they denominate
this right as the public "right to know"; by implication, the Times asserts a sole trusteeship
of that right by virtue of its journalistic "scoop." The right is asserted as an absolute. Of
course, the First Amendment right itself is not an absolute, as Justice Holmes so long ago
pointed out in his aphorism concerning the right to shout "fire" in a crowded theater if
there was no fire. There are other exceptions, some of which Chief Justice Hughes
mentioned by way of example in Near v. Minnesota. There are no doubt other exceptions
no one has had occasion to describe or discuss. Conceivably, such exceptions may be
lurking in these cases and, would have been flushed had they been properly considered in
the trial courts, free from unwarranted deadlines and frenetic pressures. An issue of this
importance should be tried and heard in a judicial atmosphere conducive to thoughtful,
reflective deliberation, especially when haste, in terms of hours, is unwarranted in light of
the long period the Times, by its own choice, deferred publication. [Footnote 6/1]
Page 403 U. S. 750
It is not disputed that the Times has had unauthorized possession of the documents for
three to four months, during which it has had its expert analysts studying them,
presumably digesting them and preparing the material for publication. During all of this
time, the Times, presumably in its capacity as trustee of the public's "right to know," has
held up publication for purposes it considered proper, and thus public knowledge was
delayed. No doubt this was for a good reason; the analysis of 7,000 pages of complex
material drawn from a vastly greater volume of material would inevitably take time, and
the writing of good news stories takes time. But why should the United States
Government, from whom this information was illegally acquired by someone, along with
all the counsel, trial judges, and appellate judges be placed under needless pressure?
After these months of deferral, the alleged "right to know" has somehow and suddenly
become a right that must be vindicated instanter.
Would it have been unreasonable, since the newspaper could anticipate the Government's
objections to release of secret material, to give the Government an opportunity to review
the entire collection and determine whether agreement could be reached on publication?
Stolen or not, if security was not, in fact, jeopardized, much of the material could no doubt
have been declassified, since it spans a period ending in 1968. With such an approach -one that great newspapers have in the past practiced and stated editorially to be the duty
of an honorable press -- the newspapers and Government might well have narrowed
Page 403 U. S. 751
the area of disagreement as to what was and was not publishable, leaving the remainder
to be resolved in orderly litigation, if necessary. To me, it is hardly believable that a
newspaper long regarded as a great institution in American life would fail to perform one
of the basic and simple duties of every citizen with respect to the discovery or possession
of stolen property or secret government documents. That duty, I had thought -- perhaps
naively -- was to report forthwith, to responsible public officers. This duty rests on taxi
drivers, Justices, and the New York Times. The course followed by the Times, whether so
calculated or not, removed any possibility of orderly litigation of the issue. If the action of
the judges up to now has been correct, that result is sheer happenstance. [Footnote 6/2]
Our grant of the writ of certiorari before final judgment in the Times case aborted the trial
in the District Court before it had made a complete record pursuant to the mandate of the
Court of Appeals for the Second Circuit.
The consequence of all this melancholy series of events is that we literally do not know
what we are acting on. As I see it, we have been forced to deal with litigation concerning
rights of great magnitude without an adequate record, and surely without time for
adequate treatment either in the prior proceedings or in this Court. It is interesting to note
that counsel on both sides, in oral argument before this Court, were frequently unable to
respond to questions on factual points. Not surprisingly, they pointed out that they had
been working literally "around the clock," and simply were unable to review the
documents that give rise to these cases and
Page 403 U. S. 752
were not familiar with them. This Court is in no better posture. I agree generally with MR.
JUSTICE HARLAN and MR. JUSTICE BLACKMUN, but I am not prepared to reach the merits.
[Footnote 6/3]
I would affirm the Court of Appeals for the Second Circuit and allow the District Court to
complete the trial aborted by our grant of certiorari, meanwhile preserving the status
quo in the Post case. I would direct that the District Court, on remand, give priority to
the Times case to the exclusion of all other business of that court, but I would not set
arbitrary deadlines.
I should add that I am in general agreement with much of what MR. JUSTICE WHITE has
expressed with respect to penal sanctions concerning communication or retention of
documents or information relating to the national defense.
We all crave speedier judicial processes, but, when judges are pressured, as in these
cases, the result is a parody of the judicial function.
16
[Footnote 6/1]
As noted elsewhere, the Times conducted its analysis of the 47 volumes of Government
documents over a period of several months, and did so with a degree of security that a
government might envy. Such security was essential, of course, to protect the enterprise
from others. Meanwhile, the Times has copyrighted its material, and there were strong
intimations in the oral argument that the Times contemplated enjoining its use by any
other publisher in violation of its copyright. Paradoxically, this would afford it a protection,
analogous to prior restraint, against all others -- a protection the Times denies the
Government of the United States.
[Footnote 6/2]
Interestingly, the Times explained its refusal to allow the Government to examine its own
purloined documents by saying in substance this might compromise its sources and
informants! The Times thus asserts a right to guard the secrecy of its sources while
denying that the Government of the United States has that power.
[Footnote 6/3]
With respect to the question of inherent power of the Executive to classify papers, records,
and documents as secret, or otherwise unavailable for public exposure, and to secure aid
of the courts for enforcement, there may be an analogy with respect to this Court. No
statute gives this Court express power to establish and enforce the utmost security
measures for the secrecy of our deliberations and records. Yet I have little doubt as to the
inherent power of the Court to protect the confidentiality of its internal operations by
whatever judicial measures may be required.
MR. JUSTICE HARLAN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join,
dissenting.
These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenting
in Northern Securities Co. v. United States, 193 U. S. 197, 193 U. S. 400-401 (1904):
"Great cases, like hard cases, make bad law. For great cases are called great not by
reason of their
Page 403 U. S. 753
real importance in shaping the law of the future, but because of some accident of
immediate overwhelming interest which appeals to the feelings and distorts the judgment.
These immediate interests exercise a kind of hydraulic pressure which makes what
previously was clear seem doubtful, and before which even well settled principles of law
will bend."
With all respect, I consider that the Court has been almost irresponsibly feverish in dealing
with these cases.
Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District
of Columbia Circuit rendered judgment on June 23. The New York Times' petition for
certiorari, its motion for accelerated consideration thereof, and its application for interim
relief were filed in this Court on June 24 at about 11 a.m. The application of the United
States for interim relief in the Post case was also filed here on June 24 at about 7:15 p.m.
This Court's order setting a hearing before us on June 26 at 11 a.m., a course which I
joined only to avoid the possibility of even more peremptory action by the Court, was
issued less than 24 hours before. The record in the Post case was filed with the Clerk
shortly before 1 p.m. on June 25; the record in the Times case did not arrive until 7 or 8
o'clock that same night. The briefs of the parties were received less than two hours before
argument on June 26.
This frenzied train of events took place in the name of the presumption against prior
restraints created by the First Amendment. Due regard for the extraordinarily important
and difficult questions involved in these litigations should have led the Court to shun such
a precipitate timetable. In order to decide the merits of these cases properly, some or all
of the following questions should have been faced:
1. Whether the Attorney General is authorized to bring these suits in the name of the
United States. Compare
Page 403 U. S. 754
In re Debs, 158 U. S. 564 (1895), with Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579 (1952). This question involves as well the construction and validity of a singularly
opaque statute -- the Espionage Act, 18 U.S.C. 793(e).
2. Whether the First Amendment permits the federal courts to enjoin publication of stories
which would present a serious threat to national security. See Near v. Minnesota, 283 U. S.
697, 283 U. S. 716 (1931) (dictum).
3. Whether the threat to publish highly secret documents is of itself a sufficient
implication of national security to justify an injunction on the theory that, regardless of the
contents of the documents, harm enough results simply from the demonstration of such a
breach of secrecy.
4. Whether the unauthorized disclosure of any of these particular documents would
seriously impair the national security.
5. What weight should be given to the opinion of high officers in the Executive Branch of
the Government with respect to questions 3 and 4.
6. Whether the newspapers are entitled to retain and use the documents notwithstanding
the seemingly uncontested facts that the documents, or the originals of which they are
duplicates, were purloined from the Government's possession, and that the newspapers
received them with knowledge that they had been feloniously acquired. Cf. Liberty Lobby,
Inc. v. Pearson, 129 U.S.App.D.C. 74, 390 F.2d 489 (1967, amended 1968).
7. Whether the threatened harm to the national security or the Government's possessory
interest in the documents justifies the issuance of an injunction against publication in light
of -a. The strong First Amendment policy against prior restraints on publication;
Page 403 U. S. 755
b. The doctrine against enjoining conduct in violation of criminal statutes; and
c. The extent to which the materials at issue have apparently already been otherwise
disseminated.
These are difficult questions of fact, of law, and of judgment; the potential consequences
of erroneous decision are enormous. The time which has been available to us, to the lower
courts,* and to the parties has been wholly inadequate for giving these cases the kind of
consideration they deserve. It is a reflection on the stability of the judicial process that
these great issues -- as important as any that have arisen during my time on the Court -should have been decided under the pressures engendered by the torrent of publicity that
has attended these litigations from their inception.
Forced as I am to reach the merits of these cases, I dissent from the opinion and
judgments of the Court. Within the severe limitations imposed by the time constraints
under which I have been required to operate, I can only state my reasons in telescoped
17
form, even though, in different circumstances, I would have felt constrained to deal with
the cases in the fuller sweep indicated above.
It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in
the Times litigation to observe that its order must rest on the conclusion that, because of
the time elements the Government had not been given an adequate opportunity to
present its case
Page 403 U. S. 756
to the District Court. At the least this conclusion was not an abuse of discretion.
In the Post litigation, the Government had more time to prepare; this was apparently the
basis for the refusal of the Court of Appeals for the District of Columbia Circuit on
rehearing to conform its judgment to that of the Second Circuit. But I think there is
another and more fundamental reason why this judgment cannot stand -- a reason which
also furnishes an additional ground for not reinstating the judgment of the District Court in
the Times litigation, set aside by the Court of Appeals. It is plain to me that the scope of
the judicial function in passing upon the activities of the Executive Branch of the
Government in the field of foreign affairs is very narrowly restricted. This view is, I think,
dictated by the concept of separation of powers upon which our constitutional system
rests.
In a speech on the floor of the House of Representatives, Chief Justice John Marshall, then
a member of that body, stated:
"The President is the sole organ of the nation in its external relations, and its sole
representative with foreign nations."
10 Annals of Cong. 613 (1800). From that time, shortly after the founding of the Nation, to
this, there has been no substantial challenge to this description of the scope of executive
power. See United States v. Curtiss-Wright Corp., 299 U. S. 304, 299 U. S. 319-321 (1936),
collecting authorities.
From this constitutional primacy in the field of foreign affairs, it seems to me that certain
conclusions necessarily follow. Some of these were stated concisely by President
Washington, declining the request of the House of Representatives for the papers leading
up to the negotiation of the Jay Treaty:
"The nature of foreign negotiations requires caution, and their success must often depend
on secrecy;
Page 403 U. S. 757
and even when brought to a conclusion, a full disclosure of all the measures, demands, or
eventual concessions which may have been proposed or contemplated would be
extremely impolitic; for this might have a pernicious influence on future negotiations, or
produce immediate inconveniences, perhaps danger and mischief, in relation to other
powers."
1 J. Richardson, Messages and Papers of the Presidents 194-195 (1896).
The power to evaluate the "pernicious influence" of premature disclosure is not, however,
lodged in the Executive alone. I agree that, in performance of its duty to protect the
values of the First Amendment against political pressures, the judiciary must review the
initial Executive determination to the point of satisfying itself that the subject matter of
the dispute does lie within the proper compass of the President's foreign relations power.
Constitutional considerations forbid "a complete abandonment of judicial control." Cf.
United States v. Reynolds, 345 U. S. 1, 345 U. S. 8 (1953). Moreover, the judiciary may
properly insist that the determination that disclosure of the subject matter would
irreparably impair the national security be made by the head of the Executive Department
concerned -- here, the Secretary of State or the Secretary of Defense -- after actual
personal consideration by that officer. This safeguard is required in the analogous area of
executive claims of privilege for secrets of state. See id. at 345 U. S. 8 and n. 20; Duncan
v. Cammell, Laird Co., [1942] A.C. 624, 638 (House of Lords).
But, in my judgment, the judiciary may not properly go beyond these two inquiries and
redetermine for itself the probable impact of disclosure on the national security.
"[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such
decisions
Page 403 U. S. 758
are wholly confided by our Constitution to the political departments of the government,
Executive and Legislative. They are delicate, complex, and involve large elements of
prophecy. They are and should be undertaken only by those directly responsible to the
people whose welfare they advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility, and which has long been held to
belong in the domain of political power not subject to judicial intrusion or inquiry."
Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U. S. 103, 333 U. S.
111 (1948) (Jackson, J.).
Even if there is some room for the judiciary to override the executive determination, it is
plain that the scope of review must be exceedingly narrow. I can see no indication in the
opinions of either the District Court or the Court of Appeals in the Post litigation that the
conclusions of the Executive were given even the deference owing to an administrative
agency, much less that owing to a co-equal branch of the Government operating within
the field of its constitutional prerogative.
Accordingly, I would vacate the judgment of the Court of Appeals for the District of
Columbia Circuit on this ground, and remand the case for further proceedings in the
District Court. Before the commencement of such further proceedings, due opportunity
should be afforded the Government for procuring from the Secretary of State or the
Secretary of Defense or both an expression of their views on the issue of national security.
The ensuing review by the District Court should be in accordance with the views
expressed in this opinion. And, for the reasons stated above, I would affirm the judgment
of the Court of Appeals for the Second Circuit.
Pending further hearings in each case conducted under the appropriate ground rules, I
would continue the
Page 403 U. S. 759
restraints on publication. I cannot believe that the doctrine prohibiting prior restraints
reaches to the point of preventing courts from maintaining the status quo long enough to
act responsibly in matters of such national importance as those involved here.
* The hearing in the Post case before Judge Gesell began at 8 a.m. on June 21, and his
decision was rendered, under the hammer of a deadline imposed by the Court of Appeals,
shortly before 5 p.m. on the same day. The hearing in the Times case before Judge Gurfein
was held on June 18, and his decision was rendered on June 19. The Government's
18
appeals in the two cases were heard by the Courts of Appeals for the District of Columbia
and Second Circuits, each court sitting en banc, on June 22. Each court rendered its
decision on the following afternoon.
MR. JUSTICE BLACKMUN, dissenting.
I join MR. JUSTICE HARLAN in his dissent. I also am in substantial accord with much that
MR. JUSTICE WHITE says, by way of admonition, in the latter part of his opinion.
At this point, the focus is on only the comparatively few documents specified by the
Government as critical. So far as the other material -- vast in amount -- is concerned, let it
be published and published forthwith if the newspapers, once the strain is gone and the
sensationalism is eased, still feel the urge so to do.
But we are concerned here with the few documents specified from the 47 volumes. Almost
70 years ago, Mr. Justice Holmes, dissenting in a celebrated case, observed:
"Great cases, like hard cases, make bad law. For great cases are called great not by
reason of their real importance in shaping the law of the future, but because of some
accident of immediate overwhelming interest which appeals to the feelings and distorts
the judgment. These immediate interests exercise a kind of hydraulic pressure. . . ."
Northen Securities Co. v. United States, 193 U. S. 197, 193 U. S. 400-401 (1904). The
present cases, if not great, are at least unusual in their posture and implications, and the
Holmes observation certainly has pertinent application.
The New York Times clandestinely devoted a period of three months to examining the 47
volumes that came into its unauthorized possession. Once it had begun publication
Page 403 U. S. 760
of material from those volumes, the New York case now before us emerged. It
immediately assumed, and ever since has maintained, a frenetic pace and character.
Seemingly, once publication started, the material could not be made public fast enough.
Seemingly, from then on, every deferral or delay, by restraint or otherwise, was abhorrent,
and was to be deemed violative of the First Amendment and of the public's "right
immediately to know." Yet that newspaper stood before us at oral argument and professed
criticism of the Government for not lodging its protest earlier than by a Monday telegram
following the initial Sunday publication.
The District of Columbia case is much the same.
Two federal district courts, two United States courts of appeals, and this Court -- within a
period of less than three weeks from inception until today -- have been pressed into
hurried decision of profound constitutional issues on inadequately developed and largely
assumed facts without the careful deliberation that, one would hope, should characterize
the American judicial process. There has been much writing about the law and little
knowledge and less digestion of the facts. In the New York case, the judges, both trial and
appellate, had not yet examined the basic material when the case was brought here. In
the District of Columbia case, little more was done, and what was accomplished in this
respect was only on required remand, with the Washington Post, on the excuse that it was
trying to protect its source of information, initially refusing to reveal what material it
actually possessed, and with the District Court forced to make assumptions as to that
possession.
With such respect as may be due to the contrary view, this, in my opinion, is not the way
to try a lawsuit of this magnitude and asserted importance. It is not the way for federal
courts to adjudicate, and to be required to adjudicate, issues that allegedly concern the
Nation's
Page 403 U. S. 761
vital welfare. The country would be none the worse off were the cases tried quickly, to be
sure, but in the customary and properly deliberative manner. The most recent of the
material, it is said, dates no later than 1968, already about three years ago, and the Times
itself took three months to formulate its plan of procedure and, thus, deprived its public
for that period.
The First Amendment, after all, is only one part of an entire Constitution. Article II of the
great document vests in the Executive Branch primary power over the conduct of foreign
affairs, and places in that branch the responsibility for the Nation's safety. Each provision
of the Constitution is important, and I cannot subscribe to a doctrine of unlimited
absolutism for the First Amendment at the cost of downgrading other provisions. First
Amendment absolutism has never commanded a majority of this Court. See, for example,
Near v. Minnesota, 283 U. S. 697, 283 U. S. 708 (1931), and Schenck v. United States, 249
U. S. 47, 249 U. S. 52 (1919). What is needed here is a weighing, upon properly developed
standards, of the broad right of the press to print and of the very narrow right of the
Government to prevent. Such standards are not yet developed. The parties here are in
disagreement as to what those standards should be. But even the newspapers concede
that there are situations where restraint is in order and is constitutional. Mr. Justice
Holmes gave us a suggestion when he said inSchenck,
"It is a question of proximity and degree. When a nation is at war, many things that might
be said in time of peace are such a hindrance to its effort that their utterance will not be
endured so long as men fight and that no Court could regard them as protected by any
constitutional right."
249 U.S. at 249 U. S. 52.
I therefore would remand these cases to be developed expeditiously, of course, but on a
schedule permitting the
Page 403 U. S. 762
orderly presentation of evidence from both sides, with the use of discovery, if necessary,
as authorized by the rules, and with the preparation of briefs, oral argument, and court
opinions of a quality better than has been seen to this point. In making this last
statement, I criticize no lawyer or judge. I know from past personal experience the agony
of time pressure in the preparation of litigation. But these cases and the issues involved
and the courts, including this one, deserve better than has been produced thus far.
It may well be that, if these cases were allowed to develop as they should be developed,
and to be tried as lawyers should try them and as courts should hear them, free of
pressure and panic and sensationalism, other light would be shed on the situation, and
contrary considerations, for me, might prevail. But that is not the present posture of the
litigation.
19
The Court, however, decides the cases today the other way. I therefore add one final
comment.
I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their
ultimate responsibilities to the United States of America. Judge Wilkey, dissenting in the
District of Columbia case, after a review of only the affidavits before his court (the basic
papers had not then been made available by either party), concluded that there were a
number of examples of documents that, if in the possession of the Post and if published,
"could clearly result in great harm to the nation," and he defined "harm" to mean
"the death of soldiers, the destruction of alliances, the greatly increased difficulty of
negotiation with our enemies, the inability of our diplomats to negotiate. . . ."
I, for one, have now been able to give at least some cursory study not only to the
affidavits, but to the material itself. I regret to say that, from this examination, I fear that
Judge Wilkey's statements have possible foundation. I therefore share
Sec. 2. Comelec Space. The Commission shall procure free print

space of not less than one half (1/2) page in at least one newspaper of
general circulation in every province or city for use as "Comelec
Space" from March 6, 1995 in the case of candidates for senator and
from March 21, 1995 until May 12, 1995. In the absence of said
newspaper, "Comelec Space" shall be obtained from any magazine or
periodical of said province or city.
Page 403 U. S. 763

his concern. I hope that damage has not already been done. If, however, damage has
been done, and if, with the Court's action today, these newspapers proceed to publish the
critical documents and there results therefrom
"the death of soldiers, the destruction of alliances, the greatly increased difficulty of
negotiation with our enemies, the inability of our diplomats to negotiate,"
to which list I might add the factors of prolongation of the war and of further delay in the
freeing of United States prisoners, then the Nation's people will know where the
responsibility for these sad consequences rests.
"Comelec Space" shall also be used by the Commission for

dissemination of vital election information.
G.R. No. L-119694 May 22, 1995

PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139 members,
represented by its President, Amado P. Macasaet and its Executive Director
Ermin F. Garcia, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
FELICIANO, J.:
The Philippine Press Institute, Inc. ("PPI") is before this Court assailing the constitutional
validity of Resolution No. 2772 issued by respondent Commission on Elections ("Comelec")
and its corresponding Comelec directive dated 22 March 1995, through a Petition
for Certiorari and Prohibition. Petitioner PPI is a non-stock, non-profit organization of
newspaper and magazine publishers.
On 2 March 1995, Comelec promulgated Resolution No. 2772, which reads in part:
xxx xxx xxx
Sec. 3. Uses of Comelec Space. "Comelec Space" shall be

allocated by the Commission, free of charge, among all
candidates within the area in which the newspaper, magazine or
periodical is circulated to enable the candidates to make known their
qualifications, their stand on public issues and their platforms and
programs of government.
Sec. 4. Allocation of Comelec Space. (a) "Comelec Space" shall also

be available to all candidatesduring the periods stated in Section 2
hereof. Its allocation shall be equal and impartial among all candidates
for the same office. All candidates concerned shall be furnished a copy
of the allocation of "Comelec Space" for their information, guidance
and compliance.
(b) Any candidate desiring to avail himself of "Comelec Space" from
newspapers or publications based in the Metropolitan Manila Area shall
submit an application therefor, in writing, to the Committee on Mass
Media of the Commission. Any candidate desiring to avail himself of
"Comelec Space" in newspapers or publications based in the provinces
shall submit his application therefor, in writing, to the Provincial
Election Supervisor concerned. Applications for availment of "Comelec
Space" maybe filed at any time from the date of effectivity of this
Resolution.
(c) The Committee on Mass Media and the Provincial Election
Supervisors shall allocate available"Comelec Space" among the
candidates concerned by lottery of which said candidates shall be
notified in advance, in writing, to be present personally or by
representative to witness the lottery at the date, time and place
specified in the notice. Any party objecting to the result of the lottery
may appeal to the Commission.
(d) The candidates concerned shall be notified by the Committee on
Mass Media or the Provincial Election Supervisor, as the case maybe,
sufficiently in advance and in writing of the date of issue and the
newspaper or publication allocated to him, and the time within which
he must submit the written material for publication in the "Comelec
Space".
xxx xxx xxx
20
Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers.

No newspaper or publication shall allow to be printed or published in
the news, opinion, features, or other sections of the newspaper or
publication accounts or comments which manifestly favor or oppose
any candidate or political party by unduly or repeatedly referring to or
including therein said candidate or political party. However, unless the
facts and circumstances clearly indicate otherwise, the Commission
will respect the determination by the publisher and/or editors of the
newspapers or publications that the accounts or views published are
significant, newsworthy and of public interest. (Emphasis supplied)
Apparently in implementation of this Resolution, Comelec through Commissioner Regalado
E. Maambong sent identical letters, dated 22 March 1995, to various publishers of
newspapers like the Business World, the Philippine Star, the Malaya and the Philippine
Times Journal, all members of PPI. These letters read as follows:
This is to advise you that pursuant to Resolution No. 2772 of the
Commission on Elections, you aredirected to provide free print space of
not less than one half (1/2) page for use as "Comelec Space"or similar
to the print support which you have extended during the May 11, 1992
synchronized elections which was 2 full pages for each political party
fielding senatorial candidates, from March 6, 1995 to May 6, 1995, to
make known their qualifications, their stand on public issues and their
platforms and programs of government.
We shall be informing the political parties and candidates to submit
directly to you their pictures, biographical data, stand on key public
issues and platforms of government either as raw data or in the form
of positives or camera-ready materials.
Please be reminded that the political parties/candidates may be
accommodated in your publication any day upon receipt of their
materials until May 6, 1995 which is the last day for campaigning.
We trust you to extend your full support and cooperation in this regard.
(Emphasis supplied)
In this Petition for Certiorari and Prohibition with prayer for the issuance of a Temporary
Restraining Order, PPI asks us to declare Comelec Resolution No. 2772 unconstitutional
and void on the ground that it violates the prohibition imposed by the Constitution upon
the government, and any of its agencies, against the taking of private property for public
use without just compensation. Petitioner also contends that the 22 March 1995 letter
directives of Comelec requiring publishers to give free "Comelec Space" and at the same
time process raw data to make it camera-ready, constitute impositions of involuntary
servitude, contrary to the provisions of Section 18 (2), Article III of the 1987 Constitution.
Finally, PPI argues that Section 8 of Comelec Resolution No. 2772 is violative of the
constitutionally guaranteed freedom of speech, of the press and of expression. 1
On 20 April 1995, this Court issued a Temporary Restraining Order enjoining Comelec from
enforcing and implementing Section 2 of Resolution No. 2772, as well as the Comelec
directives addressed to various print media enterprises all dated 22 March 1995. The
Court also required the respondent to file a Comment on the Petition.
The Office of the Solicitor General filed its Comment on behalf of respondent Comelec
alleging that Comelec Resolution No. 2772 does not impose upon the publishers any
obligation to provide free print space in the newspapers as it does not provide any
criminal or administrative sanction for non-compliance with that Resolution. According to
the Solicitor General, the questioned Resolution merely established guidelines to be
followed in connection with the procurement of "Comelec space," the procedure for and
mode of allocation of such space to candidates and the conditions or requirements for the
candidate's utilization of the "Comelec space" procured. At the same time, however, the
Solicitor General argues that even if the questioned Resolution and its implementing letter
directives are viewed as mandatory, the same would nevertheless be valid as an exercise
of the police power of the State. The Solicitor General also maintains that Section 8 of
Resolution No. 2772 is a permissible exercise of the power of supervision or regulation of
the Comelec over the communication and information operations of print media
enterprises during the election period to safeguard and ensure a fair, impartial and
credible election. 2
At the oral hearing of this case held on 28 April 1995, respondent Comelec through its
Chairman, Hon. Bernardo Pardo, in response to inquiries from the Chief Justice and other
Members of the Court, stated that Resolution No. 2772, particularly Section 2 thereof and
the 22 March 1995 letters dispatched to various members of petitioner PPI,
were not intended to compel those members to supply Comelec with free print space.
Chairman Pardo represented to the Court that Resolution and the related letter-directives
were merely designed to solicit from the publishers the same free print space which many
publishers had voluntarily given to Comelec during the election period relating to the 11
May 1992 elections. Indeed, the Chairman stated that the Comelec would, that very
afternoon, meet and adopt an appropriate amending or clarifying resolution, a certified
true copy of which would forthwith be filed with the Court.
On 5 May 1995, the Court received from the Office of the Solicitor General a manifestation
which attached a copy of Comelec Resolution No. 2772-A dated 4 May 1995. The
operative portion of this Resolution follows:
NOW THEREFORE, pursuant to the powers vested in it by the
Constitution, the Omnibus Election Code, Republic Acts No. 6646 and
7166 and other election laws, the Commission on Elections RESOLVED
to clarify Sections 2 and 8 of Res. No. 2772 as follows:
1. Section 2 of Res. No. 2772
shall not be construed to mean
as requiring publishers of the
different mass media print
publications to provide print
space under pain of prosecution,
whether administrative, civil or
criminal, there being no sanction
or penalty for violation of said
Section provided for either in
said Resolution or in Section 90
of Batas Pambansa Blg. 881,
otherwise known as the Omnibus
Election Code, on the grant of
"Comelec space."
21
2. Section 8 of Res. No. 2772

shall not be construed to mean
as constituting prior restraint on
the part of publishers with
respect to the printing or
publication of materials in the
news, opinion, features or other
sections of their respective
publications or other accounts or
comments, it being clear from
the last sentence of said Section
8 that the Commission shall,
"unless the facts and
circumstances clearly indicate
otherwise . . . respect the
determination by the publisher
and/or editors of the newspapers
or publications that the accounts
or views published are
significant, newsworthy and of
public interest."
This Resolution shall take effect upon approval. (Emphasis in the
original)
While, at this point, the Court could perhaps simply dismiss the Petition for Certiorari and
Prohibition as having become moot and academic, we consider it not inappropriate to
pass upon the first constitutional issue raised in this case. Our hope is to put this issue to
rest and prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model of clarity in expression. Section 1 of
Resolution No. 2772-A did not try to redraft Section 2; accordingly, Section 2 of Resolution
No. 2772 persists in its original form. Thus, we must point out that, as presently worded,
and in particular as interpreted and applied by the Comelec itself in its 22 March 1995
letter-directives to newspaper publishers, Section 2 of Resolution No. 2772 is clearly
susceptible of the reading that petitioner PPI has given it. That Resolution No. 2772 does
not, in express terms, threaten publishers who would disregard it or its implementing
letters with some criminal or other sanction, does not by itself demonstrate that the
Comelec's original intention was simply to solicit or request voluntary donations of print
space from publishers. A written communication officially directing a print media company
to supply free print space, dispatched by a government (here a constitutional) agency and
signed by a member of the Commission presumably legally authorized to do so, is bound
to produce a coercive effect upon the company so addressed. That the agency may not be
legally authorized to impose, or cause the imposition of, criminal or other sanctions for
disregard of such directions, only aggravates the constitutional difficulties inhearing in the
present situation. The enactment or addition of such sanctions by the legislative authority
itself would be open to serious constitutional objection.
To compel print media companies to donate "Comelec-space" of the dimensions specified
in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of
private personal property for public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once during the period from 6
March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as
often as Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or
restraint upon the use of private property. The monetary value of the compulsory
"donation," measured by the advertising rates ordinarily charged by newspaper publishers
whether in cities or in non-urban areas, may be very substantial indeed.
The taking of print space here sought to be effected may first be appraised under the
rubric of expropriation of private personal property for public use. The threshold requisites
for a lawful taking of private property for public use need to be examined here: one is
the necessity for the taking; another is the legal authority to effect the taking. The
element of necessity for the taking has not been shown by respondent Comelec. It has not
been suggested that the members of PPI are unwilling to sell print space at their normal
rates to Comelec for election purposes. Indeed, the unwillingness or reluctance of
Comelec to buy print space lies at the heart of the problem. 3Similarly, it has not been
suggested, let alone demonstrated, that Comelec has been granted the power of eminent
domain either by the Constitution or by the legislative authority. A reasonable relationship
between that power and the enforcement and administration of election laws by Comelec
must be shown; it is not casually to be assumed.
That the taking is designed to subserve "public use" is not contested by petitioner PPI. We
note only that, under Section 3 of Resolution No. 2772, the free "Comelec space" sought
by the respondent Commission would be used not only for informing the public about the
identities, qualifications and programs of government of candidates for elective office but
also for "dissemination of vital election information" (including, presumably, circulars,
regulations, notices, directives, etc. issued by Comelec). It seems to the Court a matter of
judicial notice that government offices and agencies (including the Supreme Court) simply
purchase print space, in the ordinary course of events, when their rules and regulations,
circulars, notices and so forth need officially to be brought to the attention of the general
public.
The taking of private property for public use is, of course, authorized by the Constitution,
but not without payment of "just compensation" (Article III, Section 9). And apparently the
necessity of paying compensation for "Comelec space" is precisely what is sought to be
avoided by respondent Commission, whether Section 2 of Resolution No. 2772 is read as
petitioner PPI reads it, as an assertion of authority to require newspaper publishers to
"donate" free print space for Comelec purposes, or as an exhortation, or perhaps an
appeal, to publishers to donate free print space, as Section 1 of Resolution No. 2772-A
attempts to suggest. There is nothing at all to prevent newspaper and magazine
publishers from voluntarily giving free print space to Comelec for the purposes
contemplated in Resolution No. 2772. Section 2 of Resolution No. 2772 does not, however,
provide a constitutional basis for compelling publishers, against their will, in the kind of
factual context here present, to provide free print space for Comelec purposes. Section 2
does not constitute a valid exercise of the power of eminent domain.
We would note that the ruling here laid down by the Court is entirely in line with the
theory of democratic representative government. The economic costs of informing the
general public about the qualifications and programs of those seeking elective office are
most appropriately distributed as widely as possible throughout our society by the
utilization of public funds, especially funds raised by taxation, rather than cast solely on
one small sector of society, i.e., print media enterprises. The benefits which flow from a
heightened level of information on and the awareness of the electoral process are
commonly thought to be community-wide; the burdens should be allocated on the same
basis.
As earlier noted, the Solicitor General also contended that Section 2 of Resolution No.
2772, even if read as compelling publishers to "donate" "Comelec space, " may be
22
sustained as a valid exercise of the police power of the state. This argument was,
however, made too casually to require prolonged consideration on our part. Firstly, there
was no effort (and apparently no inclination on the part of Comelec) to show that the
police power essentially a power of legislation has been constitutionally delegated to
respondent Commission. 4 Secondly, while private property may indeed be validly taken in
the legitimate exercise of the police power of the state, there was no attempt to show
compliance in the instant case with the requisites of a lawful taking under the police
power. 5
Section 2 of Resolution No. 2772 is a blunt and heavy instrument that purports, without a
showing of existence of a national emergency or other imperious public necessity,
indiscriminately and without regard to the individual business condition of particular
newspapers or magazines located in differing parts of the country, to take private
property of newspaper or magazine publishers. No attempt was made to demonstrate that
a real and palpable or urgent necessity for the taking of print space confronted the
Comelec and that Section 2 of Resolution No. 2772 was itself the only reasonable and
calibrated response to such necessity available to the Comelec. Section 2 does not
constitute a valid exercise of the police power of the State.
We turn to Section 8 of Resolution No. 2772, which needs to be quoted in full again:
Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers.
No newspaper or publication shall allow to be printed or published in
the news, opinion, features, or other sections of the newspaper or
publication accounts or comments which manifestly favor or oppose
any candidate or political party by unduly or repeatedly referring to or
including therein said candidate or political party. However, unless the
facts and circumstances clearly indicate otherwise, the Commission
will respect the determination by the publisher and/or editors of the
newspapers or publications that the accounts or views published are
significant, newsworthy and of public interest.
It is not easy to understand why Section 8 was included at all in Resolution No. 2772. In
any case, Section 8 should be viewed in the context of our decision in National Press Club
v. Commission on Elections. 6 There the Court sustained the constitutionality of Section 11
(b) of R.A. No. 6646, known as the Electoral Reforms Law of 1987, which prohibits the sale
or donation of print space and airtime for campaign or other political purposes, except to
the Comelec. In doing so, the Court carefully distinguished (a) paid political
advertisements which are reached by the prohibition of Section 11 (b), from (b) the
reporting of news, commentaries and expressions of belief or opinion by reporters,
broadcasters, editors, commentators or columnists which fall outside the scope of Section
11 (b) and which are protected by the constitutional guarantees of freedom of speech and
of the press:
Secondly, and more importantly, Section 11 (b) is limited in its scope of
application. Analysis ofSection 11 (b) shows that it purports to apply
only to the purchase and sale, including purchase and sale disguised
as a donation, of print space and air time for campaign or other
political purposes.Section 11 (b) does not purport in any way to
restrict the reporting by newspapers or radio ortelevision stations of
news or news-worthy events relating to candidates, their qualifications,
political parties and programs of government. Moreover, Section 11 (b)
does not reach commentaries and expressions of belief or opinion by
reporters or broadcaster or editors or commentators or columnists in
respect of candidates, their qualifications, and programs and so forth,

so long at least as such comments, opinions and beliefs are not in fact
advertisements for particular candidates covertly paid for. In sum,
Section 11 (b) is not to be read as reaching any report or commentary
or other coverage that, in responsible media, is not paid for by
candidates for political office. We read Section 11 (b) as designed to
cover only paid political advertisements of particular candidates.
The above limitation in scope of application of Section 11 (b) that it
does not restrict either the reporting of or the expression of belief or
opinion or comment upon the qualifications and programs and
activities of any and all candidates for office constitutes the critical
distinction which must be made between the instant case and that
of Sanidad v. Commission on Elections. . . . 7 (Citations omitted;
emphasis supplied)
Section 8 of Resolution No. 2772 appears to represent the effort of the Comelec to
establish a guideline for implementation of the above-quoted distinction and doctrine
in National Press Club an effort not blessed with evident success. Section 2 of Resolution
No. 2772-A while possibly helpful, does not add substantially to the utility of Section 8 of
Resolution No. 2772. The distinction between paid political advertisements on the one
hand and news reports, commentaries and expressions of belief or opinion by reporters,
broadcasters, editors, etc. on the other hand, can realistically be given operative meaning
only in actual cases or controversies, on a case-to-case basis, in terms of very specific
sets of facts.
At all events, the Court is bound to note that PPI has failed to allege any specific
affirmative action on the part of Comelec designed to enforce or implement Section 8. PPI
has not claimed that it or any of its members has sustained actual or imminent injury by
reason of Comelec action under Section 8. Put a little differently, the Court considers that
the precise constitutional issue here sought to be raised whether or not Section 8 of
Resolution No. 2772 constitutes a permissible exercise of the Comelec's power under
Article IX, Section 4 of the Constitution to
supervise or regulate the enjoyment or utilization of all franchise or
permits for the operation of media of communication or information
[for the purpose of ensuring] equal opportunity, time and space, and
the right of reply, including reasonable, equal rates therefore, for public
information campaigns and forums among candidates in connection
with the objective of holding free, orderly honest, peaceful and credible
elections
is not ripe for judicial review for lack of an actual case or controversy involving, as the
very lis mota thereof, the constitutionality of Section 8.
Summarizing our conclusions:
1. Section 2 of Resolution No. 2772, in its present form and as interpreted by Comelec in
its 22 March 1995 letter directives, purports to require print media enterprises to "donate"
free print space to Comelec. As such, Section 2 suffers from a fatal constitutional vice and
must be set aside and nullified.
23
2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition

for Certiorari and Prohibition must be dismissed for lack of an actual, justiciable case or
controversy.
The rationale behind the enactment of the DECREE, is set out in its preambular clauses as
follows:
G.R. No. L-75697 June 18, 1987
1. WHEREAS, the proliferation and unregulated circulation of

videograms including, among others, videotapes, discs, cassettes or
any technical improvement or variation thereof, have greatly
prejudiced the operations of moviehouses and theaters, and have
caused a sharp decline in theatrical attendance by at least forty
percent (40%) and a tremendous drop in the collection of sales,
contractor's specific, amusement and other taxes, thereby resulting in
substantial losses estimated at P450 Million annually in government
revenues;
VALENTIN TIO doing business under the name and style of OMI
ENTERPRISES, petitioner,
vs.
VIDEOGRAM REGULATORY BOARD, MINISTER OF FINANCE, METRO MANILA
COMMISSION, CITY MAYOR and CITY TREASURER OF MANILA, respondents.
2. WHEREAS, videogram(s) establishments collectively earn around

P600 Million per annum from rentals, sales and disposition of
videograms, and such earnings have not been subjected to tax,
thereby depriving the Government of approximately P180 Million in
taxes each year;
Nelson Y. Ng for petitioner.
3. WHEREAS, the unregulated activities of videogram establishments

have also affected the viability of the movie industry, particularly the
more than 1,200 movie houses and theaters throughout the country,
and occasioned industry-wide displacement and unemployment due to
the shutdown of numerous moviehouses and theaters;
WHEREFORE, for all the foregoing, the Petition for Certiorari and Prohibition is GRANTED in
part and Section 2 of Resolution No. 2772 in its present form and the related letterdirectives dated 22 March 1995 are hereby SET ASIDE as null and void, and the Temporary
Restraining Order is hereby MADE PERMANENT. The Petition is DISMISSED in part, to the
extent it relates to Section 8 of Resolution No. 2772. No pronouncement as to costs.
The City Legal Officer for respondents City Mayor and City Treasurer.
MELENCIO-HERRERA, J.:
This petition was filed on September 1, 1986 by petitioner on his own behalf and
purportedly on behalf of other videogram operators adversely affected. It assails the
constitutionality of Presidential Decree No. 1987 entitled "An Act Creating the Videogram
Regulatory Board" with broad powers to regulate and supervise the videogram industry
(hereinafter briefly referred to as the BOARD). The Decree was promulgated on October 5,
1985 and took effect on April 10, 1986, fifteen (15) days after completion of its publication
in the Official Gazette.
On November 5, 1985, a month after the promulgation of the abovementioned decree,
Presidential Decree No. 1994 amended the National Internal Revenue Code
providing, inter alia:
SEC. 134. Video Tapes. There shall be collected on each processed
video-tape cassette, ready for playback, regardless of length, an
annual tax of five pesos; Provided, That locally manufactured or
imported blank video tapes shall be subject to sales tax.
On October 23, 1986, the Greater Manila Theaters Association, Integrated Movie
Producers, Importers and Distributors Association of the Philippines, and Philippine Motion
Pictures Producers Association, hereinafter collectively referred to as the Intervenors, were
permitted by the Court to intervene in the case, over petitioner's opposition, upon the
allegations that intervention was necessary for the complete protection of their rights and
that their "survival and very existence is threatened by the unregulated proliferation of
film piracy." The Intervenors were thereafter allowed to file their Comment in Intervention.
4. "WHEREAS, in order to ensure national economic recovery, it is

imperative for the Government to create an environment conducive to
growth and development of all business industries, including the movie
industry which has an accumulated investment of about P3 Billion;
5. WHEREAS, proper taxation of the activities of videogram
establishments will not only alleviate the dire financial condition of the
movie industry upon which more than 75,000 families and 500,000
workers depend for their livelihood, but also provide an additional
source of revenue for the Government, and at the same time
rationalize the heretofore uncontrolled distribution of videograms;
6. WHEREAS, the rampant and unregulated showing of obscene
videogram features constitutes a clear and present danger to the
moral and spiritual well-being of the youth, and impairs the mandate of
the Constitution for the State to support the rearing of the youth for
civic efficiency and the development of moral character and promote
their physical, intellectual, and social well-being;
7. WHEREAS, civic-minded citizens and groups have called for remedial
measures to curb these blatant malpractices which have flaunted our
censorship and copyright laws;
8. WHEREAS, in the face of these grave emergencies corroding the
moral values of the people and betraying the national economic
recovery program, bold emergency measures must be adopted with
dispatch; ... (Numbering of paragraphs supplied).
24
Petitioner's attack on the constitutionality of the DECREE rests on the following grounds:
1. Section 10 thereof, which imposes a tax of 30% on the gross
receipts payable to the local government is a RIDER and the same is
not germane to the subject matter thereof;
2. The tax imposed is harsh, confiscatory, oppressive and/or in
unlawful restraint of trade in violation of the due process clause of the
Constitution;
3. There is no factual nor legal basis for the exercise by the President
of the vast powers conferred upon him by Amendment No. 6;
4. There is undue delegation of power and authority;
5. The Decree is an ex-post facto law; and
6. There is over regulation of the video industry as if it were a
nuisance, which it is not.
We shall consider the foregoing objections in seriatim.
1. The Constitutional requirement that "every bill shall embrace only one subject which
shall be expressed in the title thereof" 1 is sufficiently complied with if the title be
comprehensive enough to include the general purpose which a statute seeks to achieve. It
is not necessary that the title express each and every end that the statute wishes to
accomplish. The requirement is satisfied if all the parts of the statute are related, and are
germane to the subject matter expressed in the title, or as long as they are not
inconsistent with or foreign to the general subject and title. 2 An act having a single
general subject, indicated in the title, may contain any number of provisions, no matter
how diverse they may be, so long as they are not inconsistent with or foreign to the
general subject, and may be considered in furtherance of such subject by providing for
the method and means of carrying out the general object." 3 The rule also is that the
constitutional requirement as to the title of a bill should not be so narrowly construed as
to cripple or impede the power of legislation. 4 It should be given practical rather than
technical construction. 5
Tested by the foregoing criteria, petitioner's contention that the tax provision of the
DECREE is a rider is without merit. That section reads, inter alia:
Section 10. Tax on Sale, Lease or Disposition of Videograms.
Notwithstanding any provision of law to the contrary, the province shall
collect a tax of thirty percent (30%) of the purchase price or rental
rate, as the case may be, for every sale, lease or disposition of a
videogram containing a reproduction of any motion picture or
audiovisual program. Fifty percent (50%) of the proceeds of the tax
collected shall accrue to the province, and the other fifty percent (50%)
shall acrrue to the municipality where the tax is collected; PROVIDED,
That in Metropolitan Manila, the tax shall be shared equally by the
City/Municipality and the Metropolitan Manila Commission.
xxx xxx xxx

The foregoing provision is allied and germane to, and is reasonably necessary for the
accomplishment of, the general object of the DECREE, which is the regulation of the video
industry through the Videogram Regulatory Board as expressed in its title. The tax
provision is not inconsistent with, nor foreign to that general subject and title. As a tool for
regulation 6 it is simply one of the regulatory and control mechanisms scattered
throughout the DECREE. The express purpose of the DECREE to include taxation of the
video industry in order to regulate and rationalize the heretofore uncontrolled distribution
of videograms is evident from Preambles 2 and 5, supra. Those preambles explain the
motives of the lawmaker in presenting the measure. The title of the DECREE, which is the
creation of the Videogram Regulatory Board, is comprehensive enough to include the
purposes expressed in its Preamble and reasonably covers all its provisions. It is
unnecessary to express all those objectives in the title or that the latter be an index to the
body of the DECREE. 7
2. Petitioner also submits that the thirty percent (30%) tax imposed is harsh and
oppressive, confiscatory, and in restraint of trade. However, it is beyond serious question
that a tax does not cease to be valid merely because it regulates, discourages, or even
definitely deters the activities taxed. 8 The power to impose taxes is one so unlimited in
force and so searching in extent, that the courts scarcely venture to declare that it is
subject to any restrictions whatever, except such as rest in the discretion of the authority
which exercises it. 9 In imposing a tax, the legislature acts upon its constituents. This is, in
general, a sufficient security against erroneous and oppressive taxation. 10
The tax imposed by the DECREE is not only a regulatory but also a revenue measure
prompted by the realization that earnings of videogram establishments of around P600
million per annum have not been subjected to tax, thereby depriving the Government of
an additional source of revenue. It is an end-user tax, imposed on retailers for every
videogram they make available for public viewing. It is similar to the 30% amusement tax
imposed or borne by the movie industry which the theater-owners pay to the government,
but which is passed on to the entire cost of the admission ticket, thus shifting the tax
burden on the buying or the viewing public. It is a tax that is imposed uniformly on all
videogram operators.
The levy of the 30% tax is for a public purpose. It was imposed primarily to answer the
need for regulating the video industry, particularly because of the rampant film piracy, the
flagrant violation of intellectual property rights, and the proliferation of pornographic
video tapes. And while it was also an objective of the DECREE to protect the movie
industry, the tax remains a valid imposition.
The public purpose of a tax may legally exist even if the motive which
impelled the legislature to impose the tax was to favor one industry
over another. 11
It is inherent in the power to tax that a state be free to select the
subjects of taxation, and it has been repeatedly held that "inequities
which result from a singling out of one particular class for taxation or
exemption infringe no constitutional limitation". 12 Taxation has been
made the implement of the state's police power.13
At bottom, the rate of tax is a matter better addressed to the taxing legislature.
25
3. Petitioner argues that there was no legal nor factual basis for the promulgation of the
DECREE by the former President under Amendment No. 6 of the 1973 Constitution
providing that "whenever in the judgment of the President ... , there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately on any
matter for any reason that in his judgment requires immediate action, he may, in order to
meet the exigency, issue the necessary decrees, orders, or letters of instructions, which
shall form part of the law of the land."
In refutation, the Intervenors and the Solicitor General's Office aver that the 8th "whereas"
clause sufficiently summarizes the justification in that grave emergencies corroding the
moral values of the people and betraying the national economic recovery program
necessitated bold emergency measures to be adopted with dispatch. Whatever the
reasons "in the judgment" of the then President, considering that the issue of the validity
of the exercise of legislative power under the said Amendment still pends resolution in
several other cases, we reserve resolution of the question raised at the proper time.
4. Neither can it be successfully argued that the DECREE contains an undue delegation of
legislative power. The grant in Section 11 of the DECREE of authority to the BOARD to
"solicit the direct assistance of other agencies and units of the government and deputize,
for a fixed and limited period, the heads or personnel of such agencies and units to
perform enforcement functions for the Board" is not a delegation of the power to legislate
but merely a conferment of authority or discretion as to its execution, enforcement, and
implementation. "The true distinction is between the delegation of power to make the law,
which necessarily involves a discretion as to what it shall be, and conferring authority or
discretion as to its execution to be exercised under and in pursuance of the law. The first
cannot be done; to the latter, no valid objection can be made." 14 Besides, in the very
language of the decree, the authority of the BOARD to solicit such assistance is for a
"fixed and limited period" with the deputized agencies concerned being "subject to the
direction and control of the BOARD." That the grant of such authority might be the source
of graft and corruption would not stigmatize the DECREE as unconstitutional. Should the
eventuality occur, the aggrieved parties will not be without adequate remedy in law.
5. The DECREE is not violative of the ex post facto principle. An ex post facto law is,
among other categories, one which "alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law required at the time of the
commission of the offense." It is petitioner's position that Section 15 of the DECREE in
providing that:
All videogram establishments in the Philippines are hereby given a
period of forty-five (45) days after the effectivity of this Decree within
which to register with and secure a permit from the BOARD to engage
in the videogram business and to register with the BOARD all their
inventories of videograms, including videotapes, discs, cassettes or
other technical improvements or variations thereof, before they could
be sold, leased, or otherwise disposed of. Thereafter any videogram
found in the possession of any person engaged in the videogram
business without the required proof of registration by the BOARD, shall
be prima facie evidence of violation of the Decree, whether the
possession of such videogram be for private showing and/or public
exhibition.
raises immediately a prima facie evidence of violation of the DECREE when the required
proof of registration of any videogram cannot be presented and thus partakes of the
nature of an ex post facto law.
The argument is untenable. As this Court held in the recent case of Vallarta vs. Court of
Appeals, et al. 15
... it is now well settled that "there is no constitutional objection to the
passage of a law providing that the presumption of innocence may be
overcome by a contrary presumption founded upon the experience of
human conduct, and enacting what evidence shall be sufficient to
overcome such presumption of innocence" (People vs. Mingoa 92 Phil.
856 [1953] at 858-59, citing 1 COOLEY, A TREATISE ON THE
CONSTITUTIONAL LIMITATIONS, 639-641). And the "legislature may
enact that when certain facts have been proved that they shall be
prima facie evidence of the existence of the guilt of the accused and
shift the burden of proof provided there be a rational connection
between the facts proved and the ultimate facts presumed so that the
inference of the one from proof of the others is not unreasonable and
arbitrary because of lack of connection between the two in common
experience". 16
Applied to the challenged provision, there is no question that there is a rational
connection between the fact proved, which is non-registration, and the ultimate fact
presumed which is violation of the DECREE, besides the fact that the prima
facie presumption of violation of the DECREE attaches only after a forty-five-day period
counted from its effectivity and is, therefore, neither retrospective in character.
6. We do not share petitioner's fears that the video industry is being over-regulated and
being eased out of existence as if it were a nuisance. Being a relatively new industry, the
need for its regulation was apparent. While the underlying objective of the DECREE is to
protect the moribund movie industry, there is no question that public welfare is at bottom
of its enactment, considering "the unfair competition posed by rampant film piracy; the
erosion of the moral fiber of the viewing public brought about by the availability of
unclassified and unreviewed video tapes containing pornographic films and films with
brutally violent sequences; and losses in government revenues due to the drop in
theatrical attendance, not to mention the fact that the activities of video establishments
are virtually untaxed since mere payment of Mayor's permit and municipal license fees
are required to engage in business. 17
The enactment of the Decree since April 10, 1986 has not brought about the "demise" of
the video industry. On the contrary, video establishments are seen to have proliferated in
many places notwithstanding the 30% tax imposed.
In the last analysis, what petitioner basically questions is the necessity, wisdom and
expediency of the DECREE. These considerations, however, are primarily and exclusively a
matter of legislative concern.
Only congressional power or competence, not the wisdom of the action
taken, may be the basis for declaring a statute invalid. This is as it
ought to be. The principle of separation of powers has in the main
wisely allocated the respective authority of each department and
confined its jurisdiction to such a sphere. There would then be intrusion
26
not allowable under the Constitution if on a matter left to the discretion

of a coordinate branch, the judiciary would substitute its own. If there
be adherence to the rule of law, as there ought to be, the last offender
should be courts of justice, to which rightly litigants submit their
controversy precisely to maintain unimpaired the supremacy of legal
norms and prescriptions. The attack on the validity of the challenged
provision likewise insofar as there may be objections, even if valid and
cogent on its wisdom cannot be sustained. 18
In fine, petitioner has not overcome the presumption of validity which attaches to a
challenged statute. We find no clear violation of the Constitution which would justify us in
pronouncing Presidential Decree No. 1987 as unconstitutional and void.
WHEREFORE, the instant Petition is hereby dismissed.
G.R. No. 126102
December 4, 2000
ORTIGAS & CO. LTD., petitioner,

vs.
THE COURT OF APPEALS and ISMAEL G. MATHAY III, respondents.
11. No single-family residential building shall be erecteduntil the building

plans, specificationhave been approved by the SELLER
xxx
14....restrictions shall run with the land and shall be construed as real covenants
until December 31, 2025 when they shall cease and terminate 1
These and the other conditions were duly annotated on the certificate of title issued to
Emilia.
In 1981, the Metropolitan Manila Commission (now Metropolitan Manila Development
Authority) enacted MMC Ordinance No. 81-01, also known as the Comprehensive Zoning
Area for the National Capital Region. The ordinance reclassified as a commercial area a
portion of Ortigas Avenue from Madison to Roosevelt Streets of Greenhills Subdivision
where the lot is located.
On June 8, 1984, private respondent Ismael Mathay III leased the lot from Emilia Hermoso
and J.P. Hermoso Realty Corp.. The lease contract did not specify the purposes of the
lease. Thereupon, private respondent constructed a single story commercial building for
Greenhills Autohaus, Inc., a car sales company.
DECISION
QUISUMBING, J.:
This petition seeks to reverse the decision of the Court of Appeals, dated March 25, 1996,
in CA-G.R. SP No. 39193, which nullified the writ of preliminary injunction issued by the
Regional Trial Court of Pasig City, Branch 261, in Civil Case No. 64931. It also assails the
resolution of the appellate court, dated August 13, 1996, denying petitioners motion for
reconsideration.
On January 18, 1995, petitioner filed a complaint against Emilia Hermoso with the
Regional Trial Court of Pasig, Branch 261. Docketed as Civil Case No. 64931, the complaint
sought the demolition of the said commercial structure for having violated the terms and
conditions of the Deed of Sale. Complainant prayed for the issuance of a temporary
restraining order and a writ of preliminary injunction to prohibit petitioner from
constructing the commercial building and/or engaging in commercial activity on the lot.
The complaint was later amended to implead Ismael G. Mathay III and J.P. Hermoso Realty
Corp., which has a ten percent (10%) interest in the lot.
The facts of this case, as culled from the records, are as follows:
In his answer, Mathay III denied any knowledge of the restrictions on the use of the lot and
filed a cross-claim against the Hermosos.
On August 25, 1976, petitioner Ortigas & Company sold to Emilia Hermoso, a parcel of
land known as Lot 1, Block 21, Psd-66759, with an area of 1,508 square meters, located in
Greenhills Subdivision IV, San Juan, Metro Manila, and covered by Transfer Certificate of
Title No. 0737. The contract of sale provided that the lot:
On June 16, 1995, the trial court issued the writ of preliminary injunction. On June 29,
1995, Mathay III moved to set aside the injunctive order, but the trial court denied the
motion.
1. (1) be used exclusivelyfor residential purposes only, and not more than
one single-family residential building will be constructed thereon,
xxx
6. The BUYER shall not erectany sign or billboard on the rooffor advertising
purposes
Mathay III then filed with the Court of Appeals a special civil action for certiorari, docketed
as CA-G.R. SP No. 39193, ascribing to the trial court grave abuse of discretion in issuing
the writ of preliminary injunction. He claimed that MMC Ordinance No. 81-01 classified the
area where the lot was located as commercial area and said ordinance must be read into
the August 25, 1976 Deed of Sale as a concrete exercise of police power.
Ortigas and Company averred that inasmuch as the restrictions on the use of the lot were
duly annotated on the title it issued to Emilia Hermoso, said restrictions must prevail over
the ordinance, specially since these restrictions were agreed upon before the passage of
MMC Ordinance No. 81-01.
xxx
On March 25, 1996, the appellate court disposed of the case as follows:
27
WHEREFORE, in light of the foregoing, the petition is hereby GRANTED. The assailed
orders are hereby nullified and set aside.
SO ORDERED.2
In finding for Mathay III, the Court of Appeals held that the MMC Ordinance No. 81-01
effectively nullified the restrictions allowing only residential use of the property in
question.
Ortigas seasonably moved for reconsideration, but the appellate court denied it on August
13, 1996.
Hence, the instant petition.
In its Memorandum, petitioner now submits that the "principal issue in this case is
whether respondent Court of Appeals correctly set aside the Order dated June 16, 1995 of
the trial court which issued the writ of preliminary injunction on the sole ground that MMC
Ordinance No. 81-01 nullified the building restriction imposing exclusive residential use on
the property in question."3 It also asserts that "Mathay III lacks legal capacity to question
the validity of conditions of the deed of sale; and he is barred by estoppel or waiver to
raise the same question like his principals, the owners." 4 Lastly, it avers that the appellate
court "unaccountably failed to address" several questions of fact.
Principally, we must resolve the issue of whether the Court of Appeals erred in holding
that the trial court committed grave abuse of discretion when it refused to apply MMC
Ordinance No.81-01 to Civil Case No. 64931.
But first, we must address petitioners allegation that the Court of Appeals "unaccountably
failed to address" questions of fact. For basic is the rule that factual issues may not be
raised before this Court in a petition for review and this Court is not duty-bound to
consider said questions.5 CA-G.R. SP No. 39193 was a special civil action for certiorari, and
the appellate court only had to determine if the trial court committed grave abuse of
discretion amounting to want or excess of jurisdiction in issuing the writ of preliminary
injunction. Thus, unless vital to our determination of the issue at hand, we shall refrain
from further consideration of factual questions.
Petitioner contends that the appellate court erred in limiting its decision to the cited
zoning ordinance. It avers that a contractual right is not automatically discarded once a
claim is made that it conflicts with police power. Petitioner submits that the restrictive
clauses in the questioned contract is not in conflict with the zoning ordinance. For one,
according to petitioner, the MMC Ordinance No. 81-01 did not prohibit the construction of
residential buildings. Petitioner argues that even with the zoning ordinance, the seller and
buyer of the re-classified lot can voluntarily agree to an exclusive residential use thereof.
Hence, petitioner concludes that the Court of Appeals erred in holding that the condition
imposing exclusive residential use was effectively nullified by the zoning ordinance.
In its turn, private respondent argues that the appellate court correctly ruled that the trial
court had acted with grave abuse of discretion in refusing to subject the contract to the
MMC Ordinance No. 81-01. He avers that the appellate court properly held the police
power superior to the non-impairment of contract clause in the Constitution. He concludes
that the appellate court did not err in dissolving the writ of preliminary injunction issued
by the trial court in excess of its jurisdiction.
We note that in issuing the disputed writ of preliminary injunction, the trial court observed
that the contract of sale was entered into in August 1976, while the zoning ordinance was
enacted only in March 1981. The trial court reasoned that since private respondent had
failed to show that MMC Ordinance No. 81-01 had retroactive effect, said ordinance should
be given prospective application only, 6 citing Co vs. Intermediate Appellate Court, 162
SCRA 390 (1988).
In general, we agree that laws are to be construed as having only prospective
operation. Lex prospicit, non respicit. Equally settled, only laws existing at the time of the
execution of a contract are applicable thereto and not later statutes, unless the latter are
specifically intended to have retroactive effect. 7 A later law which enlarges, abridges, or in
any manner changes the intent of the parties to the contract necessarily impairs the
contract itself8and cannot be given retroactive effect without violating the constitutional
prohibition against impairment of contracts. 9
But, the foregoing principles do admit of certain exceptions. One involves police power. A
law enacted in the exercise of police power to regulate or govern certain activities or
transactions could be given retroactive effect and may reasonably impair vested rights or
contracts. Police power legislation is applicable not only to future contracts, but equally to
those already in existence.10 Nonimpairment of contracts or vested rights clauses will
have to yield to the superior and legitimate exercise by the State of police power to
promote the health, morals, peace, education, good order, safety, and general welfare of
the people.11 Moreover, statutes in exercise of valid police power must be read into every
contract.12 Noteworthy, in Sangalang vs. Intermediate Appellate Court, 13 we already
upheld MMC Ordinance No. 81-01 as a legitimate police power measure.
The trial courts reliance on the Co vs. IAC,14 is misplaced. In Co, the disputed area was
agricultural and Ordinance No. 81-01 did not specifically provide that "it shall have
retroactive effect so as to discontinue all rights previously acquired over lands located
within the zone which are neither residential nor light industrial in nature," 15and stated
with respect to agricultural areas covered that "the zoning ordinance should be given
prospective operation only."16 The area in this case involves not agricultural but urban
residential land. Ordinance No. 81-01 retroactively affected the operation of the zoning
ordinance in Greenhills by reclassifying certain locations therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co., 94 SCRA 533 (1979),
the contractual stipulations annotated on the Torrens Title, on which Ortigas relies, must
yield to the ordinance. When that stretch of Ortigas Avenue from Roosevelt Street to
Madison Street was reclassified as a commercial zone by the Metropolitan Manila
Commission in March 1981, the restrictions in the contract of sale between Ortigas and
Hermoso, limiting all construction on the disputed lot to single-family residential buildings,
were deemed extinguished by the retroactive operation of the zoning ordinance and could
no longer be enforced. While our legal system upholds the sanctity of contract so that a
contract is deemed law between the contracting parties, 17nonetheless, stipulations in a
contract cannot contravene "law, morals, good customs, public order, or public
policy."18 Otherwise such stipulations would be deemed null and void. Respondent court
correctly found that the trial court committed in this case a grave abuse of discretion
amounting to want of or excess of jurisdiction in refusing to treat Ordinance No. 81-01 as
applicable to Civil Case No. 64931. In resolving matters in litigation, judges are not only
duty-bound to ascertain the facts and the applicable laws, 19 they are also bound by their
oath of office to apply the applicable law. 20
As a secondary issue, petitioner contends that respondent Mathay III, as a mere lessee of
the lot in question, is a total stranger to the deed of sale and is thus barred from
28
questioning the conditions of said deed. Petitioner points out that the owners of the lot
voluntarily agreed to the restrictions on the use of the lot and do not question the validity
of these restrictions. Petitioner argues that Mathay III as a lessee is merely an agent of the
owners, and could not override and rise above the status of his principals. Petitioner
submits that he could not have a higher interest than those of the owners, the Hermosos,
and thus had no locus standi to file CA-G.R. SP No. 39193 to dissolve the injunctive writ
issued by the RTC of Pasig City.
SANDOVAL-GUTIERREZ, J.:
For his part, private respondent argues that as the lessee who built the commercial
structure, it is he and he alone who stands to be either benefited or injured by the results
of the judgment in Civil Case No. 64931. He avers he is the party with real interest in the
subject matter of the action, as it would be his business, not the Hermosos, which would
suffer had not the respondent court dissolved the writ of preliminary injunction.
Before us is a petition for prohibition and injunction seeking to enjoin the implementation
of the "Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of
Residence"2 (Guidelines) issued on January 31, 2003, by respondent Hermogenes E.
Ebdane, Jr., Chief of the Philippine National Police (PNP).
The right of individuals to bear arms is not absolute, but is subject to regulation. The
maintenance of peace and order1 and the protection of the people against violence are
constitutional duties of the State, and the right to bear arms is to be construed in
connection and in harmony with these constitutional duties.
The facts are undisputed:

A real party in interest is defined as "the party who stands to be benefited or injured by
the judgment or the party entitled to the avails of the suit." "Interest" within the meaning
of the rule means material interest, an interest in issue and to be affected by the decree,
as distinguished from mere interest in the question involved, or a mere incidental
interest.21 By real interest is meant a present substantial interest, as distinguished from a
mere expectancy or a future, contingent, subordinate, or consequential interest. 22
Tested by the foregoing definition, private respondent in this case is clearly a real party in
interest.1wphi1 It is not disputed that he is in possession of the lot pursuant to a valid
lease. He is a possessor in the concept of a "holder of the thing" under Article 525 of the
Civil Code.23 He was impleaded as a defendant in the amended complaint in Civil Case No.
64931. Further, what petitioner seeks to enjoin is the building by respondent of a
commercial structure on the lot. Clearly, it is private respondents acts which are in issue,
and his interest in said issue cannot be a mere incidental interest. In its amended
complaint, petitioner prayed for, among others, judgment "ordering the demolition of all
improvements illegally built on the lot in question." 24 These show that it is petitioner
Mathay III, doing business as "Greenhills Autohaus, Inc.," and not only the Hermosos, who
will be adversely affected by the courts decree.
Petitioner also cites the rule that a stranger to a contract has no rights or obligations
under it,25 and thus has no standing to challenge its validity. 26 But in seeking to enforce
the stipulations in the deed of sale, petitioner impleaded private respondent as a
defendant. Thus petitioner must recognize that where a plaintiff has impleaded a party as
a defendant, he cannot subsequently question the latters standing in court. 27
WHEREFORE, the instant petition is DENIED. The challenged decision of the Court of
Appeals dated March 25, 1996, as well as the assailed resolution of August 13, 1996, in
CA-G.R. SP No. 39193 is AFFIRMED. Costs against petitioner.
G.R. No. 157036
June 9, 2004
FRANCISCO I. CHAVEZ Petitioner,

vs.
HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS EXECUTIVE SECRETARY;
DIRECTOR GENERAL HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS THE
CHIEF OF THE PNP, ET. AL., respondents.
DECISION
In January 2003, President Gloria Macapagal-Arroyo delivered a speech before

the members of the PNP stressing the need for a nationwide gun ban in all public
places to avert the rising crime incidents. She directed the then PNP Chief,
respondent Ebdane, to suspend the issuance of Permits to Carry Firearms
Outside of Residence (PTCFOR), thus:
"THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT
TEND TO DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE
COMMUNITY THE LATEST BEING THE KILLING OF FORMER NPA
LEADER ROLLY KINTANAR. I UNDERSTAND WE ALREADY HAVE THE
IDENTITY OF THE CULPRIT. LET US BRING THEM TO THE BAR OF
JUSTICE.
THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF
OUR LAW ENFORCEMENT AGENCIES CAN RID THEMSELVES OF
RASCALS IN UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN
PUBLIC PLACES.
THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE
ISSUANCE OF PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE
ISSUANCE OF PERMITS WILL NOW BE LIMITED ONLY TO OWNERSHIP
AND POSSESSION OF GUNS AND NOT TO CARRYING THEM IN PUBLIC
PLACES. FROM NOW ON, ONLY THE UNIFORMED MEN IN THE MILITARY
AND AUTHORIZED LAW ENFORCEMENT OFFICERS CAN CARRY
FIREARMS IN PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING LAW.
CIVILIAN OWNERS MAY NO LONGER BRING THEIR FIREARMS OUTSIDE
THEIR RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR
TARGET PRACTICE WILL BE GIVEN SPECIAL AND TEMPORARY PERMITS
FROM TIME TO TIME ONLY FOR THAT PURPOSE. AND THEY MAY NOT
LOAD THEIR GUNS WITH BULLETS UNTIL THEY ARE IN THE PREMISES
OF THE FIRING RANGE.
WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND
ORDER. JUST AS WE CANNOT BE HEEDLESS OF OUR PEOPLES
ASPIRATIONS FOR PEACE."
Acting on President Arroyos directive, respondent Ebdane issued the assailed Guidelines
quoted as follows:
29
"TO : All Concerned

FROM : Chief, PNP
SUBJECT : Guidelines in the Implementation of the Ban on the Carrying
of Firearms Outside of Residence.
DATE : January 31, 2003
1. Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and
Regulations.
2. General:
The possession and carrying of firearms outside of residence is a privilege
granted by the State to its citizens for their individual protection against all
threats of lawlessness and security.
As a rule, persons who are lawful holders of firearms (regular license, special
permit, certificate of registration or MR) are prohibited from carrying their
firearms outside of residence. However, the Chief, Philippine National Police
may, in meritorious cases as determined by him and under conditions as he may
impose, authorize such person or persons to carry firearms outside of residence.
3. Purposes:
This Memorandum prescribes the guidelines in the implementation of the ban on
the carrying of firearms outside of residence as provided for in the
Implementing Rules and Regulations, Presidential Decree No. 1866,
dated June 29, 1983 and as directed by PGMA. It also prescribes the
conditions, requirements and procedures under which exemption from the ban
may be granted.
4. Specific Instructions on the Ban on the Carrying of Firearms:
a. All PTCFOR are hereby revoked. Authorized holders of licensed
firearms covered with valid PTCFOR may re-apply for a new PTCFOR in
accordance with the conditions hereinafter prescribed.
b. All holders of licensed or government firearms are hereby prohibited
from carrying their firearms outside their residence except those
covered with mission/letter orders and duty detail orders issued by
competent authority pursuant to Section 5, IRR, PD 1866, provided,
that the said exception shall pertain only to organic and regular
employees.
5. The following persons may be authorized to carry firearms outside of
residence.
a. All persons whose application for a new PTCFOR has been approved,
provided, that the persons and security of those so authorized are
under actual threat, or by the nature of their position, occupation and
profession are under imminent danger.
b. All organic and regular employees with Mission/Letter Orders
granted by their respective agencies so authorized pursuant to Section
5, IRR, PD 1866, provided, that such Mission/Letter Orders is valid only
for the duration of the official mission which in no case shall be more
than ten (10) days.
c. All guards covered with Duty Detail Orders granted by their
respective security agencies so authorized pursuant to Section 4, IRR,
PD 1866, provided, that such DDO shall in no case exceed 24-hour
duration. d. Members of duly recognized Gun Clubs issued Permit to
Transport (PTT) by the PNP for purposes of practice and competition,
provided, that such firearms while in transit must not be loaded with
ammunition and secured in an appropriate box or case detached from
the person. e. Authorized members of the Diplomatic Corps. 6.
Requirements for issuance of new PTCFOR: a. Written request by the
applicant addressed to Chief, PNP stating his qualification to possess
firearm and the reasons why he needs to carry firearm outside of
residence. b. Xerox copy of current firearm license duly authenticated
by Records Branch, FED; c. Proof of actual threat, the details of which
should be issued by the Chief of Police/Provincial or City Directors and
duly validated by C, RIID; d. Copy of Drug Test Clearance, duly
authenticated by the Drug Testing Center, if photocopied; e. Copy of
DI/ RIID clearance, duly authenticated by ODI/RIID, if photocopied; f.
Copy of Neuro-Psychiatric Clearance duly authenticated by NP Testing
Center, if photocopied; g. Copy of Certificate of Attendance to a Gun
Safety Seminar, duly validated by Chief, Operations Branch, FED; h.
NBI Clearance; i. Two (2) ID pictures (2" x 2") taken not earlier than one
(1) year from date of filing of application; and j. Proof of Payment
7. Procedures: a. Applications may be filed directly to the Office of the PTCFOR
Secretariat in Camp Crame. In the provinces, the applications may also be
submitted to the Police Regional Offices (PROs) and Provincial/City Police Offices
(P/CPOs) for initial processing before they are forwarded to the office of the
PTCFOR Secretariat. The processors, after ascertaining that the documentary
requirements are in order, shall issue the Order of Payment (OP) indicating the
amount of fees payable by the applicant, who in turn shall pay the fees to the
Land Bank. b. Applications, which are duly processed and prepared in
accordance with existing rules and regulations, shall be forwarded to the OCPNP
for approval. c. Upon approval of the application, OCPNP will issue PTCFOR valid
for one (1) year from date of issue. d. Applications for renewal of PTCFOR shall
be processed in accordance with the provisions of par. 6 above. e. Application for
possession and carrying of firearms by diplomats in the Philippines shall be
processed in accordance with NHQ PNP Memo dated September 25, 2000, with
Subj: Possession and Carrying of Firearms by Diplomats in the Philippines. 8.
Restrictions in the Carrying of Firearms: a. The firearm must not be displayed or
exposed to public view, except those authorized in uniform and in the
performance of their official duties. b. The firearm shall not be brought inside
public drinking and amusement places, and all other commercial or public
establishments."
30
Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued,
requested the Department of Interior and Local Government (DILG) to reconsider the
implementation of the assailed Guidelines. However, his request was denied. Thus, he
filed the present petition impleading public respondents Ebdane, as Chief of PNP; Alberto
G. Romulo, as Executive Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and
Explosives Division. He anchored his petition on the following grounds:
"I
THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE
SPEECH TO ALTER, MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A
GUN BAN AND CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED
OUTSIDE RESIDENCES.
II
OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE
PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN
BAN; THE PRESIDENTS VERBAL DECLARATION ON GUN BAN VIOLATED THE
PEOPLES RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY
FIREARMS.
III
V
THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE
CONSTITUTION BECAUSE:
1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY
INTERTWINED WITH THE PEOPLES INHERENT RIGHT TO LIFE AND TO
PROTECT LIFE. THUS, THE PNP GUIDELINES DEPRIVE PETITIONER OF
THIS RIGHT WITHOUT DUE PROCESS OF LAW FOR:
A) THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST
POTENT, IF NOT HIS ONLY, MEANS TO DEFEND HIMSELF.
B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF
HIS MEANS OF PROTECTION AGAINST CRIME DESPITE THE
FACT THAT THE STATE COULD NOT POSSIBLY PROTECT ITS
CITIZENS DUE TO THE INADEQUACY AND INEFFICIENCY OF
THE POLICE FORCE.
2) THE OWNESHIP AND CARRYING OF FIREARMS ARE
CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS WHICH CANNOT BE
TAKEN AWAY WITHOUT DUE PROCESS OF LAW AND WITHOUT JUST
CAUSE.
THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED

GUIDELINES BECAUSE:
1) THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS
THE PNP CHIEF THE AUTHORITY TO PROMULGATE THE PNP
GUIDELINES.
2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT
BE THE SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES.
VI
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN
THE EXERCISE OF POLICE POWER, THE SAME IS AN INVALID EXERCISE
THEREOF SINCE THE MEANS USED THEREFOR ARE UNREASONABLE
AND UNNCESSARY FOR THE ACCOMPLISHMENT OF ITS PURPOSE TO
DETER AND PREVENT CRIME THEREBY BECOMING UNDULY
OPPRESSIVE TO LAW-ABIDING GUN-OWNERS.
VII
3) THE PRESIDENTS SPEECH CANNOT BE A BASIS FOR THE

PROMULGATION OF IMPLEMENTNG GUIDELINES ON THE GUN BAN.
IV
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND
THE AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR
AUTHORITY TO ISSUE THE SAME BECAUSE
1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE
PROMULGATED JOINTLY BY THE DOJ AND THE DILG.
2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY
THE CHIEF OF THE PHILIPPINE CONSTABULARY.
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT

REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING
THE PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR.
VIII
THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO
LAW-ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS THE
LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF
COLLECTIVELY, AND NPA) UNTOUCHED.
IX
31
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY
WERE IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED.
X
THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY
APPLY RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED
PERMITS TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR
PROMULGATION."
Petitioners submissions may be synthesized into five (5) major issues:
First, whether respondent Ebdane is authorized to issue the assailed Guidelines;
Second, whether the citizens right to bear arms is a constitutional right?;
Third, whether the revocation of petitioners PTCFOR pursuant to the assailed
Guidelines is a violation of his right to property?;
Fourth, whether the issuance of the assailed Guidelines is a valid exercise of
police power?; and
Fifth, whether the assailed Guidelines constitute an ex post facto law?
The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of
hierarchy of courts. Nonetheless, in refutation of petitioners arguments, he contends that:
(1) the PNP Chief is authorized to issue the assailed Guidelines; (2) petitioner does not
have a constitutional right to own and carry firearms; (3) the assailed Guidelines do not
violate the due process clause of the Constitution; and (4) the assailed Guidelines do not
constitute an ex post facto law.
Initially, we must resolve the procedural barrier.
On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the
doctrine is not an iron-clad dictum. In several instances where this Court was confronted
with cases of national interest and of serious implications, it never hesitated to set aside
the rule and proceed with the judicial determination of the cases. 3 The case at bar is of
similar import as it involves the citizens right to bear arms.
I
Authority of the PNP Chief
Relying on the principle of separation of powers, petitioner argues that only Congress can
withhold his right to bear arms. In revoking all existing PTCFOR, President Arroyo and
respondent Ebdane transgressed the settled principle and arrogated upon themselves a
power they do not possess the legislative power.
We are not persuaded.

It is true that under our constitutional system, the powers of government are distributed
among three coordinate and substantially independent departments: the legislative, the
executive and the judiciary. Each has exclusive cognizance of the matters within its
jurisdiction and is supreme within its own sphere.4
Pertinently, the power to make laws the legislative power is vested in
Congress.5 Congress 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 "delegata potestas non potest delegari"
"delegated power may not be delegated." 6
The rule which forbids the delegation of legislative power, however, is not
absolute and inflexible. It admits of exceptions. An exception sanctioned by
immemorial practice permits the legislative body to delegate its licensing power to certain
persons, municipal corporations, towns, boards, councils, commissions, commissioners,
auditors, bureaus and directors. 7 Such licensing power includes the power to promulgate
necessary rules and regulations.8
The evolution of our laws on firearms shows that since the early days of our Republic, the
legislatures tendency was always towards the delegation of power. Act No.
1780,9 delegated upon the Governor-General (now the President) the authority (1) to
approve or disapprove applications of any person for a license to deal in firearms or to
possess the same for personal protection, hunting and other lawful purposes; and (2) to
revoke such license any time.10 Further, it authorized him to issue regulations which he
may deem necessary for the proper enforcement of the Act. 11 With the enactment of Act
No. 2711, the "Revised Administrative Code of 1917," the laws on firearms were
integrated.12 The Act retained the authority of the Governor General provided in Act No.
1780. Subsequently, the growing complexity in the Office of the Governor-General
resulted in the delegation of his authority to the Chief of the Constabulary. On January 21,
1919, Acting Governor-General Charles E. Yeater issued Executive Order No.
813 authorizing and directing the Chief of Constabulary to act on his behalf in approving
and disapproving applications for personal, special and hunting licenses. This was
followed by Executive Order No. 6114 designating the Philippine Constabulary (PC) as the
government custodian of all firearms, ammunitions and explosives. Executive Order No.
215,15 issued by President Diosdado Macapagal on December 3, 1965, granted the Chief
of the Constabulary, not only the authority to approve or disapprove applications for
personal, special and hunting license, but also the authority to revoke the same. With the
foregoing developments, it is accurate to say that the Chief of the Constabulary had
exercised the authority for a long time. In fact, subsequent issuances such as Sections 2
and 3 of the Implementing Rules and Regulations of Presidential Decree No.
186616 perpetuate such authority of the Chief of the Constabulary. Section 2 specifically
provides that any person or entity desiring to possess any firearm "shall first secure the
necessary permit/license/authority from the Chief of the Constabulary." With regard to the
issuance of PTCFOR, Section 3 imparts: "The Chief of Constabulary may, in meritorious
cases as determined by him and under such conditions as he may impose, authorize
lawful holders of firearms to carry them outside of residence." These provisions are issued
pursuant to the general power granted by P.D. No. 1866 empowering him to promulgate
rules and regulations for the effective implementation of the decree. 17 At this juncture, it
bears emphasis that P.D. No. 1866 is the chief law governing possession of firearms in the
Philippines and that it was issued by President Ferdinand E. Marcos in the exercise of his
legislative power.18 In an attempt to evade the application of the above-mentioned laws
and regulations, petitioner argues that the "Chief of the PNP" is not the same as the "Chief
of the Constabulary," the PC being a mere unit or component of the newly established
32
PNP. He contends further that Republic Act No. 829419 amended P.D. No. 1866 such that
the authority to issue rules and regulations regarding firearms is now jointly vested in the
Department of Justice and the DILG, not the Chief of the Constabulary. 20
Petitioners submission is bereft of merit.
By virtue of Republic Act No. 6975,21 the Philippine National Police (PNP) absorbed the
Philippine Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the
Constabulary and, therefore, assumed the latters licensing authority. Section 24 thereof
specifies, as one of PNPs powers, the issuance of licenses for the possession of firearms
and explosives in accordance with law. 22 This is in conjunction with the PNP Chiefs "power
to issue detailed implementing policies and instructions" on such "matters as may be
necessary to effectively carry out the functions, powers and duties" of the PNP. 23
Contrary to petitioners contention, R.A. No. 8294 does not divest the Chief of the
Constabulary (now the PNP Chief) of his authority to promulgate rules and regulations for
the effective implementation of P.D. No. 1866. For one, R.A. No. 8294 did not repeal
entirely P.D. No. 1866. It merely provides for the reduction of penalties for illegal
possession of firearms. Thus, the provision of P.D. No. 1866 granting to the Chief of the
Constabulary the authority to issue rules and regulations regarding firearms remains
effective. Correspondingly, the Implementing Rules and Regulations dated September 15,
1997 jointly issued by the Department of Justice and the DILG pursuant to Section 6 of
R.A. No. 8294 deal only with the automatic review, by the Director of the Bureau of
Corrections or the Warden of a provincial or city jail, of the records of convicts for
violations of P.D. No. 1866. The Rules seek to give effect to the beneficent provisions of
R.A. No. 8294, thereby ensuring the early release and reintegration of the convicts into
the community.
Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed
guidelines.
Corollarily, petitioner disputes President Arroyos declaration of a nationwide gun ban,
arguing that "she has no authority to alter, modify, or amend the law on firearms through
a mere speech."
First, it must be emphasized that President Arroyos speech was just an expression of her
policy and a directive to her subordinate. It cannot, therefore, be argued that President
Arroyo enacted a law through a mere speech.
Second, at the apex of the entire executive officialdom is the President. Section 17, Article
VII of the Constitution specifies his power as Chief Executive, thus: "The President shall
have control of all the executive departments, bureaus and offices. He shall ensure that
the laws be faithfully executed." As Chief Executive, President Arroyo holds the steering
wheel that controls the course of her government. She lays down policies in the execution
of her plans and programs. Whatever policy she chooses, she has her subordinates to
implement them. In short, she has the power of control. Whenever a specific function
is entrusted by law or regulation to her subordinate, she may act directly or
merely direct the performance of a duty.24 Thus, when President Arroyo directed
respondent Ebdane to suspend the issuance of PTCFOR, she was just directing a
subordinate to perform an assigned duty. Such act is well within the prerogative of her
office.
II
Right to bear arms: Constitutional or Statutory?
Petitioner earnestly contends that his right to bear arms is a constitutionally-protected
right. This, he mainly anchors on various American authorities. We therefore find it
imperative to determine the nature of the right in light of American jurisprudence.
The bearing of arms is a tradition deeply rooted in the English and American society. It
antedates not only the American Constitution but also the discovery of firearms. 25
A provision commonly invoked by the American people to justify their possession of
firearms is the Second Amendment of the Constitution of the United States of America,
which reads:
"A well regulated militia, being necessary for the security of free state, the right of the
people to keep and bear Arms, shall not be infringed."
An examination of the historical background of the foregoing provision shows that it
pertains to the citizens "collective right" to take arms in defense of the State, not to the
citizens "individual right" to own and possess arms. The setting under which the right was
contemplated has a profound connection with the keeping and maintenance of a militia or
an armed citizenry. That this is how the right was construed is evident in early American
cases.
The first case involving the interpretation of the Second Amendment that reached the
United States Supreme Court is United States vs. Miller.26 Here, the indictment charged
the defendants with transporting an unregistered "Stevens shotgun" without the required
stamped written order, contrary to the National Firearms Act. The defendants filed a
demurrer challenging the facial validity of the indictment on the ground that the National
Firearms Act offends the inhibition of the Second Amendment. The District Court
sustained the demurrer and quashed the indictment. On appeal, the Supreme Court
interpreted the right to bear arms under the Second Amendment as referring to the
collective right of those comprising the Militia a body of citizens enrolled for military
discipline. It does not pertain to the individual right of citizen to bear arm. Miller expresses
its holding as follows:
"In the absence of any evidence tending to show that possession or use of a
shotgun having a barrel of less than eighteen inches in length at this time has
some reasonable relationship to the preservation or efficiency of a well
regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument. Certainly it is
not within judicial notice that this weapon is any part of the ordinary military
equipment or that its use could contribute to the common defense.
The same doctrine was re-echoed in Cases vs. United States.27 Here, the Circuit Court of
Appeals held that theFederal Firearms Act, as applied to appellant, does not conflict with
the Second Amendment. It ruled that:
"While [appellants] weapon may be capable of military use, or while at least
familiarity with it might be regarded as of value in training a person to use a
33
comparable weapon of military type and caliber, still there is no evidence

that the appellant was or ever had been a member of any military
organization or that his use of the weapon under the circumstances
disclosed was in preparation for a military career. In fact, the only
inference possible is that the appellant at the time charged in the
indictment was in possession of, transporting, and using the firearm
and ammunition purely and simply on a frolic of his own and without
any thought or intention of contributing to the efficiency of the well
regulated militia which the Second amendment was designed to foster
as necessary to the security of a free state."
With the foregoing jurisprudence, it is erroneous to assume that the US Constitution
grants upon the American people the right to bear arms. In a more explicit language,
the United States vs. Cruikshank28 decreed: "The right of the people to keep and bear
arms is not a right granted by the Constitution. Neither is it in any way
dependent upon that instrument." Likewise, in People vs. Persce,29 the Court of
Appeals said: "Neither is there any constitutional provision securing the right to bear arms
which prohibits legislation with reference to such weapons as are specifically before us for
consideration. The provision in the Constitution of the United States that the
right of the people to keep and bear arms shall not be infringed is not designed
to control legislation by the state."
With more reason, the right to bear arms cannot be classified as fundamental under the
1987 Philippine Constitution. Our Constitution contains no provision similar to the Second
Amendment, as we aptly observed in the early case of United States vs. Villareal:30
"The only contention of counsel which would appear to necessitate comment is
the claim that the statute penalizing the carrying of concealed weapons and
prohibiting the keeping and the use of firearms without a license, is in violation
of the provisions of section 5 of the Philippine Bill of Rights.
applicant shall make a cash deposit in the postal savings bank in the sum of one
hundred pesos for each firearm for which the license is to be issued, or in lieu
thereof he may give a bond in such form as the Governor-General may
prescribe, payable to the Government of the Philippine Islands, in the sum of two
hundred pesos for each such firearm: PROVIDED, HOWEVER, That persons
who are actually members of gun clubs, duly formed and organized at the time
of the passage of this Act, who at such time have a license to possess firearms,
shall not be required to make the deposit or give the bond prescribed by this
section, and the bond duly executed by such person in accordance with existing
law shall continue to be security for the safekeeping of such arms."
The foregoing provision was restated in Section 887 31 of Act No. 2711 that integrated the
firearm laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified
the laws on illegal possession, manufacture, dealing in, acquisition of firearms,
ammunitions or explosives and imposed stiffer penalties for their violation. R.A. No. 8294
amended some of the provisions of P.D. No. 1866 by reducing the imposable penalties.
Being a mere statutory creation, the right to bear arms cannot be considered an
inalienable or absolute right.
III
Vested Property Right
Section 1, Article III of the Constitution provides that "no person shall be deprived of life,
liberty or property without due process of law." Petitioner invokes this provision, asserting
that the revocation of his PTCFOR pursuant to the assailed Guidelines deprived him of his
"vested property right" without due process of law and in violation of the equal protection
of law.
Petitioner cannot find solace to the above-quoted Constitutional provision.
Counsel does not expressly rely upon the prohibition in the United
States Constitution against the infringement of the right of the people
of the United States to keep and bear arms (U. S. Constitution,
amendment 2), which is not included in the Philippine Bill. But it may
be well, in passing, to point out that in no event could this
constitutional guaranty have any bearing on the case at bar, not only
because it has not been expressly extended to the Philippine Islands,
but also because it has been uniformly held that both this and similar
provisions in State constitutions apply only to arms used in civilized
warfare (see cases cited in 40 Cyc., 853, note 18); x x x."
Evidently, possession of firearms by the citizens in the Philippines is the exception, not the
rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a
mere statutory creation. What then are the laws that grant such right to the
Filipinos? The first real firearm law is Act No. 1780 enacted by the Philippine Commission
on October 12, 1907. It was passed to regulate the importation, acquisition, possession,
use and transfer of firearms. Section 9 thereof provides:
"SECTION 9. Any person desiring to possess one or more firearms for
personal protection, or for use in hunting or other lawful purposes only,
and ammunition therefor, shall make application for a license to
possess such firearm or firearms or ammunition as hereinafter
provided. Upon making such application, and before receiving the license, the
In evaluating a due process claim, the first and foremost consideration must be whether
life, liberty or property interest exists. 32 The bulk of jurisprudence is that a license
authorizing a person to enjoy a certain privilege is neither a property nor property right.
In Tan vs. The Director of Forestry,33 we ruled that "a license is merely a permit or
privilege to do what otherwise would be unlawful, and is not a contract between the
authority granting it and the person to whom it is granted; neither is it property or a
property right, nor does it create a vested right." In a more emphatic pronouncement, we
held in Oposa vs. Factoran, Jr.34 that:
"Needless to say, all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property right
protected by the due process clause of the Constitution."
Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied
heavily on Bell vs. Burson35 wherein the U.S. Supreme Court ruled that "once a license is
issued, continued possession may become essential in the pursuit of livelihood.
Suspension of issued licenses thus involves state action that adjudicates important
interest of the licensees."
Petitioners reliance on Bell is misplaced. This case involves a drivers license, not a
license to bear arms. The catena of American jurisprudence involving license to bear arms
34
is perfectly in accord with our ruling that a PTCFOR is neither a property nor a property
right. In Erdelyi vs. OBrien,36 the plaintiff who was denied a license to carry a firearm
brought suit against the defendant who was the Chief of Police of the City of Manhattan
Beach, on the ground that the denial violated her constitutional rights to due process and
equal protection of the laws. The United States Court of Appeals Ninth Circuit ruled that
Erdelyi did not have a property interest in obtaining a license to carry a firearm,
ratiocinating as follows:
satisfied with the terms imposed, he should decline to accept them, but, if for
the purpose of securing possession of the arms he does agree to such
conditions, he must fulfill them."
IV
Police Power
"Property interests protected by the Due Process Clause of the Fourteenth Amendment do
not arise whenever a person has only an abstract need or desire for, or unilateral
expectation of a benefit. x x x Rather, they arise from legitimate claims of entitlement
defined by existing rules or understanding that stem from an independent source, such as
state law. x x x Concealed weapons are closely regulated by the State of California. x x x
Whether the statute creates a property interest in concealed weapons licenses depends
largely upon the extent to which the statute contains mandatory language that restricts
the discretion of the [issuing authority] to deny licenses to applicants who claim to meet
the minimum eligibility requirements. x x x Where state law gives the issuing authority
broad discretion to grant or deny license application in a closely regulated field, initial
applicants do not have a property right in such licenses protected by the Fourteenth
Amendment. See Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law);"
Similar doctrine was announced in Potts vs. City of Philadelphia, 37 Conway vs.
King,38 Nichols vs. County of Sta. Clara,39 and Gross vs. Norton.40 These cases enunciated
that the test whether the statute creates a property right or interest depends largely on
the extent of discretion granted to the issuing authority.
In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR.
This is evident from the tenor of the Implementing Rules and Regulations of P.D. No. 1866
which state that "the Chief of Constabulary may, in meritorious cases as determined
by him and under such conditions as he may impose, authorize lawful holders of
firearms to carry them outside of residence." Following the American doctrine, it is indeed
logical to say that a PTCFOR does not constitute a property right protected under our
Constitution.
Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be
revoked any time. It does not confer an absolute right, but only a personal privilege to be
exercised under existing restrictions, and such as may thereafter be reasonably
imposed.41 A licensee takes his license subject to such conditions as the Legislature sees
fit to impose, and one of the statutory conditions of this license is that it might be
revoked by the selectmen at their pleasure. Such a license is not a contract, and a
revocation of it does not deprive the defendant of any property, immunity, or privilege
within the meaning of these words in the Declaration of Rights. 42The US Supreme Court,
in Doyle vs. Continental Ins. Co,43 held: "The correlative power to revoke or recall a
permission is a necessary consequence of the main power. A mere license by the State is
always revocable."
The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus,
in The Government of the Philippine Islands vs. Amechazurra 44 we ruled:
"x x x no private person is bound to keep arms. Whether he does or not is
entirely optional with himself, but if, for his own convenience or pleasure, he
desires to possess arms, he must do so upon such terms as the Government
sees fit to impose, for the right to keep and bear arms is not secured to him by
law. The Government can impose upon him such terms as it pleases. If he is not
At any rate, assuming that petitioners PTCFOR constitutes a property right protected by
the Constitution, the same cannot be considered as absolute as to be placed beyond the
reach of the States police power. All property in the state is held subject to its general
regulations, necessary to the common good and general welfare.
In a number of cases, we laid down the test to determine the validity of a police measure,
thus:
(1) The interests of the public generally, as distinguished from those of a
particular class, require the exercise of the police power; and
(2) The means employed are reasonably necessary for the accomplishment of
the purpose and not unduly oppressive upon individuals.
Deeper reflection will reveal that the test merely reiterates the essence of the
constitutional guarantees of substantive due process, equal protection, and nonimpairment of property rights.
It is apparent from the assailed Guidelines that the basis for its issuance was the need for
peace and order in the society. Owing to the proliferation of crimes, particularly those
committed by the New Peoples Army (NPA), which tends to disturb the peace of the
community, President Arroyo deemed it best to impose a nationwide gun ban. Undeniably,
the motivating factor in the issuance of the assailed Guidelines is the interest of the public
in general.
The only question that can then arise is whether the means employed are appropriate and
reasonably necessary for the accomplishment of the purpose and are not unduly
oppressive. In the instant case, the assailed Guidelines do not entirely prohibit possession
of firearms. What they proscribe is merely the carrying of firearms outside of residence.
However, those who wish to carry their firearms outside of their residences may re-apply
for a new PTCFOR. This we believe is a reasonable regulation. If the carrying of firearms is
regulated, necessarily, crime incidents will be curtailed. Criminals carry their weapon to
hunt for their victims; they do not wait in the comfort of their homes. With the revocation
of all PTCFOR, it would be difficult for criminals to roam around with their guns. On the
other hand, it would be easier for the PNP to apprehend them.
Notably, laws regulating the acquisition or possession of guns have frequently been
upheld as reasonable exercise of the police power.45 In State vs. Reams,46 it was held that
the legislature may regulate the right to bear arms in a manner conducive to the public
peace. With the promotion of public peace as its objective and the revocation of all
PTCFOR as the means, we are convinced that the issuance of the assailed Guidelines
constitutes a reasonable exercise of police power. The ruling in United States vs.
Villareal,47 is relevant, thus:
35
"We think there can be no question as to the reasonableness of a statutory

regulation prohibiting the carrying of concealed weapons as a police measure
well calculated to restrict the too frequent resort to such weapons in moments of
anger and excitement. We do not doubt that the strict enforcement of such a
regulation would tend to increase the security of life and limb, and to suppress
crime and lawlessness, in any community wherein the practice of carrying
concealed weapons prevails, and this without being unduly oppressive upon the
individual owners of these weapons. It follows that its enactment by the
legislature is a proper and legitimate exercise of the police power of the state."
V
Ex post facto law
In Mekin vs. Wolfe,48 an ex post facto law has been defined as one (a) which makes an
action done before the passing of the law and which was innocent when done criminal,
and punishes such action; or (b) which aggravates a crime or makes it greater than it was
when committed; or (c) which changes the punishment and inflicts a greater punishment
than the law annexed to the crime when it was committed; or (d) which alters the legal
rules of evidence and receives less or different testimony than the law required at the
time of the commission of the offense in order to convict the defendant.
We see no reason to devote much discussion on the matter. Ex post facto law prohibits
retrospectivity of penal laws.49 The assailed Guidelines cannot be considered as an ex
post facto law because it is prospective in its application. Contrary to petitioners
argument, it would not result in the punishment of acts previously committed.
WHEREFORE, the petition is hereby DISMISSED.
G.R. No. 135962
March 27, 2000
METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner,

vs.
BEL-AIR VILLAGE ASSOCIATION, INC., respondent.
PUNO, J.:
Not infrequently, the government is tempted to take legal shortcuts solve urgent problems
of the people. But even when government is armed with the best of intention, we cannot
allow it to run roughshod over the rule of law. Again, we let the hammer fall and fall hard
on the illegal attempt of the MMDA to open for public use a private road in a private
subdivision. While we hold that the general welfare should be promoted, we stress that it
should not be achieved at the expense of the rule of law.
Petitioner MMDA is a government agency tasked with the delivery of basic services in
Metro Manila. Respondent Bel-Air Village Association, Inc. (BAVA) is a non-stock, non-profit
corporation whose members are homeowners in Bel-Air Village, a private subdivision in
Makati City. Respondent BAVA is the registered owner of Neptune Street, a road inside BelAir Village.
On December 30, 1995, respondent received from petitioner, through its Chairman, a
notice dated December 22, 1995 requesting respondent to open Neptune Street to public
vehicular traffic starting January 2, 1996. The notice reads:
SUBJECT: NOTICE of the Opening of Neptune Street to Traffic.
Dear President Lindo,
Please be informed that pursuant to the mandate of the MMDA law or Republic
Act No. 7924 which requires the Authority to rationalize the use of roads and/or
thoroughfares for the safe and convenient movement of persons, Neptune Street
shall be opened to vehicular traffic effective January 2, 1996.
In view whereof, the undersigned requests you to voluntarily open the points of
entry and exit on said street.
Thank you for your cooperation and whatever assistance that may be extended
by your association to the MMDA personnel who will be directing traffic in the
area.
Finally, we are furnishing you with a copy of the handwritten instruction of the
President on the matter.
Very truly yours,
PROSPERO I. ORETA
Chairman
On the same day, respondent was apprised that the perimeter wall separating
the subdivision from the adjacent Kalayaan Avenue would be demolished.
On January 2, 1996, respondent instituted against petitioner before the Regional Trial
Court, Branch 136, Makati City, Civil Case No. 96-001 for injunction. Respondent prayed
for the issuance of a temporary restraining order and preliminary injunction enjoining the
opening of Neptune Street and prohibiting the demolition of the perimeter wall. The trial
court issued a temporary restraining order the following day.
On January 23, 1996, after due hearing, the trial court denied issuance of a preliminary
injunction. 2 Respondent questioned the denial before the Court of Appeals in CA-G.R. SP
No. 39549. The appellate court conducted an ocular inspection of Neptune Street 3 and on
February 13, 1996, it issued a writ of preliminary injunction enjoining the implementation
of the MMDA's proposed action. 4
On January 28, 1997, the appellate court rendered a Decision on the merits of the case
finding that the MMDA has no authority to order the opening of Neptune Street, a private
subdivision road and cause the demolition of its perimeter walls. It held that the authority
is lodged in the City Council of Makati by ordinance. The decision disposed of as follows:
36
WHEREFORE, the Petition is GRANTED; the challenged Order dated January 23,
1995, in Civil Case No. 96-001, is SET ASIDE and the Writ of Preliminary
Injunction issued on February 13, 1996 is hereby made permanent.
For want of sustainable substantiation, the Motion to Cite Roberto L. del Rosario
in contempt is denied. 5
No pronouncement as to costs.
SO ORDERED.
The Motion for Reconsideration of the decision was denied on September 28, 1998.
Hence, this recourse.
Petitioner MMDA raises the following questions:
I
HAS THE METROPOLITAN MANILA DEVELOPMENT AUTHORITY (MMDA) THE
MANDATE TO OPEN NEPTUNE STREET TO PUBLIC TRAFFIC PURSUANT TO ITS
REGULATORY AND POLICE POWERS?
II
IS THE PASSAGE OF AN ORDINANCE A CONDITION PRECEDENT BEFORE THE
MMDA MAY ORDER THE OPENING OF SUBDIVISION ROADS TO PUBLIC TRAFFIC?
III
IS RESPONDENT BEL-AIR VILLAGE ASSOCIATION, INC. ESTOPPED FROM DENYING
OR ASSAILING THE AUTHORITY OF THE MMDA TO OPEN THE SUBJECT STREET?
IV
WAS RESPONDENT DEPRIVED OF DUE PROCESS DESPITE THE SEVERAL
MEETINGS HELD BETWEEN MMDA AND THE AFFECTED EEL-AIR RESIDENTS AND
BAVA OFFICERS?
V
HAS RESPONDENT COME TO COURT WITH UNCLEAN HANDS?7
Neptune Street is owned by respondent BAVA. It is a private road inside Bel-Air Village, a
private residential subdivision in the heart of the financial and commercial district of
Makati City. It runs parallel to Kalayaan Avenue, a national road open to the general
public. Dividing the two (2) streets is a concrete perimeter wall approximately fifteen (15)
feet high. The western end of Neptune Street intersects Nicanor Garcia, formerly Reposo
Street, a subdivision road open to public vehicular traffic, while its eastern end intersects
Makati Avenue, a national road. Both ends of Neptune Street are guarded by iron gates.
Petitioner MMDA claims that it has the authority to open Neptune Street to public traffic
because it is an agent of the state endowed with police power in the delivery of basic
services in Metro Manila. One of these basic services is traffic management which involves
the regulation of the use of thoroughfares to insure the safety, convenience and welfare of
the general public. It is alleged that the police power of MMDA was affirmed by this Court
in the consolidated cases of Sangalang v. Intermediate Appellate Court. 8 From the
premise that it has police power, it is now urged that there is no need for the City of
Makati to enact an ordinance opening Neptune street to the public. 9
Police power is an inherent attribute of sovereignty. It has been defined as the power
vested by the Constitution in the legislature to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they shall judge to be for the good and
welfare of the commonwealth, and for the subjects of the same. 10 The power is plenary
and its scope is vast and pervasive, reaching and justifying measures for public health,
public safety, public morals, and the general welfare. 11
It bears stressing that police power is lodged primarily in the National Legislature. 12 It
cannot be exercised by any group or body of individuals not possessing legislative
power. 13 The National Legislature, however, may delegatethis power to the President and
administrative boards as well as the lawmaking bodies of municipal corporations or local
government units. 14 Once delegated, the agents can exercise only such legislative powers
as are conferred on them by the national lawmaking body. 15
A local government is a "political subdivision of a nation or state which is constituted by
law and has substantial control of local affairs." 16The Local Government Code of 1991
defines a local government unit as a "body politic and corporate." 17 one endowed with
powers as a political subdivision of the National Government and as a corporate entity
representing the inhabitants of its territory. 18 Local government units are the provinces,
cities, municipalities and barangays. 19 They are also the territorial and political
subdivisions of the state. 20
Our Congress delegated police power to the local government units in the Local
Government Code of 1991. This delegation is found in Section 16 of the same Code,
known as the general welfare clause, viz:
Sec. 16. General Welfare. Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare. Within their respective territorial jurisdictions, local government units
shall ensure and support, among other things, the preservation and enrichment
of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals,
enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants. 21
37
Local government units exercise police power through their respective legislative bodies.
The legislative body of the provincial government is the sangguniang panlalawigan, that
of the city government is the sangguniang panlungsod, that of the municipal government
is the sangguniang bayan, and that of the barangay is thesangguniang barangay. The
Local Government Code of 1991 empowers the sangguniang panlalawigan,sangguniang
panlungsod and sangguniang bayan to "enact ordinances, approve resolutions and
appropriate funds for the general welfare of the [province, city or municipality, as the case
may be], and its inhabitants pursuant to Section 16 of the Code and in the proper exercise
of the corporate powers of the [province, city municipality] provided under the Code . . .
" 22 The same Code gives the sangguniang barangay the power to "enact ordinances as
may be necessary to discharge the responsibilities conferred upon it by law or ordinance
and to promote the general welfare of the inhabitants thereon." 23
Metropolitan or Metro Manila is a body composed of several local government units i.e.,
twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila,
Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque
and Valenzuela, and the municipalities of Malabon, Navotas, Pateros, San Juan and
Taguig. With the passage of Republic Act (R. A.) No. 7924 24 in 1995, Metropolitan Manila
was declared as a "special development and administrative region" and the
Administration of "metro-wide" basic services affecting the region placed under "a
development authority" referred to as the MMDA. 25
"Metro-wide services" are those "services which have metro-wide impact and transcend
local political boundaries or entail huge expenditures such that it would not be viable for
said services to be provided by the individual local government units comprising Metro
Manila." 26 There are seven (7) basic metro-wide services and the scope of these services
cover the following: (1) development planning; (2) transport and traffic management; (3)
solid waste disposal and management; (4) flood control and sewerage management; (5)
urban renewal, zoning and land use planning, and shelter services; (6) health and
sanitation, urban protection and pollution control; and (7) public safety. The basic service
of transport and traffic management includes the following:
(b) Transport and traffic management which include the
formulation, coordination, and monitoring of policies, standards, programs and
projects to rationalize the existing transport operations, infrastructure
requirements, the use of thoroughfares, and promotion of safe and convenient
movement of persons and goods; provision for the mass transport system and
the institution of a system to regulate road users;administration and
implementation of all traffic enforcement operations, traffic engineering services
and traffic education programs, including the institution of a single ticketing
system in Metropolitan Manila;" 27
In the delivery of the seven (7) basic services, the MMDA has the following powers and
functions:
Sec. 5. Functions and powers of the Metro Manila Development Authority. The
MMDA shall:
(a) Formulate, coordinate and regulate the implementation of medium and longterm plans and programs for the delivery of metro-wide services, land use and
physical development within Metropolitan Manila, consistent with national
development objectives and priorities;
(b) Prepare, coordinate and regulate the implementation of medium-term

investment programs for metro-wide services which shall indicate sources and
uses of funds for priority programs and projects, and which shall include the
packaging of projects and presentation to funding institutions;
(c) Undertake and manage on its own metro-wide programs and projects for the
delivery of specific services under its jurisdiction, subject to the approval of the
Council. For this purpose, MMDA can create appropriate project management
offices;
(d) Coordinate and monitor the implementation of such plans, programs and
projects in Metro Manila; identify bottlenecks and adopt solutions to problems of
implementation;
(e) The MMDA shall set the policies concerning traffic in Metro Manila, and shall
coordinate and regulate the implementation of all programs and projects
concerning traffic management, specifically pertaining to
enforcement, engineering and education. Upon request, it shall be extended
assistance and cooperation,including but not limited to, assignment of
personnel, by all other government agencies and offices concerned;
(f) Install and administer a single ticketing system, fix, impose and collect fines
and penalties for all kinds of violations of traffic rules and regulations, whether
moving or non-moving in nature, and confiscate and suspend or revoke drivers'
licenses in the enforcement of such traffic laws and regulations, the provisions
of RA 4136 and PD 1605 to the contrary notwithstanding. For this purpose, the
Authority shall impose all traffic laws and regulations in Metro Manila, through
its traffic operation center, and may deputize members of the PNP, traffic
enforcers of local government units, duly licensed security guards, or members
of non-governmental organizations to whom may be delegated certain
authority, subject to such conditions and requirements as the Authority may
impose; and
(g) Perform other related functions required to achieve the objectives of the
MMDA, including the undertaking of delivery of basic services to the local
government units, when deemed necessary subject to prior coordination with
and consent of the local government unit concerned.
The implementation of the MMDA's plans, programs and projects is undertaken by the
local government units, national government agencies, accredited people's organizations,
non-governmental organizations, and the private sector as well as by the MMDA itself. For
this purpose, the MMDA has the power to enter into contracts, memoranda of agreement
and other arrangements with these bodies for the delivery of the required services Metro
Manila. 28
The governing board of the MMDA is the Metro Manila Council. The Council is composed of
the mayors of the component 12 cities and 5 municipalities, the president of the Metro
Manila Vice-Mayors' League and the president of the Metro Manila Councilors'
League. 29 The Council is headed by Chairman who is appointed by the President and
vested with the rank of cabinet member. As the policy-making body of the MMDA, the
Metro Manila Council approves metro-wide plans, programs and projects, and issues the
necessary rules and regulations for the implementation of said plans; it approves the
annual budget of the MMDA and promulgate the rules and regulations for the delivery of
38
basic services, collection of service and regulatory fees, fines and penalties. These
functions are particularly enumerated as follows:
Sec. 6. Functions of the Metro Manila Council.
(a) The Council shall be the policy-making body of the MMDA;
(b) It shall approve metro-wide plans, programs and projects and issue rules and
regulations deemed necessary by the MMDA to carry out the purposes of this
Act;
(c) It may increase the rate of allowances and per diems of the members of the
Council to be effective during the term of the succeeding Council. It shall fix the
compensation of the officers and personnel of the MMDA, and approve the
annual budget thereof for submission to the Department of Budget and
Management (DBM);
(d) It shall promulgate rules and regulations and set policies and standards for
metro-wide application governing the delivery of basic services, prescribe and
collect service and regulatory fees, and impose and collect fines and penalties.
Clearly, the scope of the MMDA's function is limited to the delivery of the seven (7) basic
services. One of these is transport and traffic management which includes the formulation
and monitoring of policies, standards and projects to rationalize the existing transport
operations, infrastructure requirements, the use of thoroughfares and promotion of the
safe movement of persons and goods. It also covers the mass transport system and the
institution of a system of road regulation, the administration of all traffic enforcement
operations, traffic engineering services and traffic education programs, including the
institution of a single ticketing system in Metro Manila for traffic violations. Under the
service, the MMDA is expressly authorized "to set the policies concerning traffic" and
"coordinate and regulate the implementation of all traffic management programs." In
addition, the MMDA may "install and administer a single ticketing system," fix, impose and
collect fines and penalties for all traffic violations.
It will be noted that the powers of the MMDA are limited to the following acts: formulation,
coordination, regulation, implementation, preparation, management, monitoring, setting
of policies, installation of a system and administration. There is no syllable in
R.A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the
Metro Manila Council has not been delegated any legislative power. Unlike the legislative
bodies of the local government units, there is no provision in R.A. No. 7924 that empowers
the MMDA or its Council to "enact ordinances, approve resolutions appropriate funds for
the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the
charter itself, "development authority." 30 It is an agency created for the purpose of laying
down policies and coordinating with the various national government agencies, people's
organizations, non-governmental organizations and the private sector for the efficient and
expeditious delivery of basic services in the vast metropolitan area. All its functions are
administrative in nature and these are actually summed up in the charter itself, viz:
Sec. 2. Creation of the Metropolitan Manila Development Authority. . . . .
The MMDA shall perform planning, monitoring and coordinative functions, and in
the process exerciseregulatory and supervisory authority over the delivery of
metro-wide services within Metro Manila, without diminution of the autonomy of

the local government units concerning purely local matters. 31
Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate Appellate
Court 32 where we upheld a zoning ordinance issued by the Metro Manila Commission
(MMC), the predecessor of the MMDA, as an exercise of police power. The
first Sangalang decision was on the merits of the petition, 33 while the second decision
denied reconsideration of the first case and in addition discussed the case of Yabut
v. Court of Appeals. 34
Sangalang v. IAC involved five (5) consolidated petitions filed by respondent BAVA and
three residents of Bel-Air Village against other residents of the Village and the Ayala
Corporation, formerly the Makati Development Corporation, as the developer of the
subdivision. The petitioners sought to enforce certain restrictive easements in the deeds
of sale over their respective lots in the subdivision. These were the prohibition on the
setting up of commercial and advertising signs on the lots, and the condition that the lots
be used only for residential purposes. Petitioners alleged that respondents, who were
residents along Jupiter Street of the subdivision, converted their residences into
commercial establishments in violation of the "deed restrictions," and that respondent
Ayala Corporation ushered in the full commercialization" of Jupiter Street by tearing down
the perimeter wall that separated the commercial from the residential section of the
village. 35
The petitions were dismissed based on Ordinance No. 81 of the Municipal Council of
Makati and Ordinance No. 81-01 of the Metro Manila Commission (MMC). Municipal
Ordinance No. 81 classified Bel-Air Village as a Class A Residential Zone, with its boundary
in the south extending to the center line of Jupiter Street. The Municipal Ordinance was
adopted by the MMC under the Comprehensive Zoning Ordinance for the National Capital
Region and promulgated as MMC Ordinance No. 81-01. Bel-Air Village was indicated
therein as bounded by Jupiter Street and the block adjacent thereto was classified as a
High Intensity Commercial Zone. 36
We ruled that since both Ordinances recognized Jupiter Street as the boundary between
Bel-Air Village and the commercial district, Jupiter Street was not for the exclusive benefit
of Bel-Air residents. We also held that the perimeter wall on said street was constructed
not to separate the residential from the commercial blocks but simply for security reasons,
hence, in tearing down said wall, Ayala Corporation did not violate the "deed restrictions"
in the deeds of sale.
We upheld the ordinances, specifically MMC Ordinance No. 81-01, as a legitimate exercise
of police power. 37 The power of the MMC and the Makati Municipal Council to enact zoning
ordinances for the general welfare prevailed over the "deed restrictions".
In the second Sangalang/Yabut decision, we held that the opening of Jupiter Street was
warranted by the demands of the common good in terms of "traffic decongestion and
public convenience." Jupiter was opened by the Municipal Mayor to alleviate traffic
congestion along the public streets adjacent to the Village. 38 The same reason was given
for the opening to public vehicular traffic of Orbit Street, a road inside the same village.
The destruction of the gate in Orbit Street was also made under the police power of the
municipal government. The gate, like the perimeter wall along Jupiter, was a public
nuisance because it hindered and impaired the use of property, hence, its summary
abatement by the mayor was proper and legal. 39
39
Contrary to petitioner's claim, the two Sangalang cases do not apply to the case at
bar. Firstly, both involved zoning ordinances passed by the municipal council of Makati
and the MMC. In the instant case, the basis for the proposed opening of Neptune Street is
contained in the notice of December 22, 1995 sent by petitioner to respondent BAVA,
through its president. The notice does not cite any ordinance or law, either by the
Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the
proposed opening of Neptune Street. Petitioner MMDA simply relied on its authority under
its charter "to rationalize the use of roads and/or thoroughfares for the safe and
convenient movement of persons." Rationalizing the use of roads and thoroughfares is
one of the acts that fall within the scope of transport and traffic management. By no
stretch of the imagination, however, can this be interpreted as an express or implied grant
of ordinance-making power, much less police power.
Existing tax measures should, however, continue to be operative until otherwise

modified or repealed by the Commission;
Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is
the forerunner of the present MMDA, an examination of Presidential Decree (P. D.) No.
824, the charter of the MMC, shows that the latter possessed greater powers which were
not bestowed on the present MMDA.
5. To review, amend, revise or repeal all ordinances, resolutions and acts of cities
and municipalities within Metropolitan Manila;
Metropolitan Manila was first created in 1975 by Presidential Decree (P.D.) No. 824. It
comprised the Greater Manila Area composed of the contiguous four (4) cities of Manila,
Quezon, Pasay and Caloocan, and the thirteen (13) municipalities of Makati, Mandaluyong,
San Juan, Las Pinas, Malabon, Navotas, Pasig, Pateros, Paranaque, Marikina, Muntinlupa
and Taguig in the province of Rizal, and Valenzuela in the province of
Bulacan. 40Metropolitan Manila was created as a response to the finding that the rapid
growth of population and the increase of social and economic requirements in these areas
demand a call for simultaneous and unified development; that the public services
rendered by the respective local governments could be administered more efficiently and
economically if integrated under a system of central planning; and this coordination,
"especially in the maintenance of peace and order and the eradication of social and
economic ills that fanned the flames of rebellion and discontent [were] part of reform
measures under Martial Law essential to the safety and security of the State." 41
3. To charge and collect fees for the use of public service facilities;
4. To appropriate money for the operation of the metropolitan government and
review appropriations for the city and municipal units within its jurisdiction with
authority to disapprove the same if found to be not in accordance with the
established policies of the Commission, without prejudice to any contractual
obligation of the local government units involved existing at the time of approval
of this Decree;
6. To enact or approve ordinances, resolutions and to fix penalties for any

violation thereof which shall not exceed a fine of P10,000.00 or imprisonment of
six years or both such fine and imprisonment for a single offense;
7. To perform general administrative, executive and policy-making functions;
8. To establish a fire control operation center, which shall direct the fire services
of the city and municipal governments in the metropolitan area;
9. To establish a garbage disposal operation center, which shall direct garbage
collection and disposal in the metropolitan area;
10. To establish and operate a transport and traffic center, which shall direct
traffic activities;
Metropolitan Manila was established as a "public corporation" with the following powers:
Sec. 1. Creation of the Metropolitan Manila. There is hereby created a public
corporation, to be known as the Metropolitan Manila, vested with powers and
attributes of a corporation including the power to make contracts, sue and be
sued, acquire, purchase, expropriate, hold, transfer and dispose of property and
such other powers as are necessary to carry out its purposes. The Corporation
shall be administered by a Commission created under this Decree. 42
The administration of Metropolitan Manila was placed under the Metro Manila Commission
(MMC) vested with the following powers:
Sec. 4. Powers and Functions of the Commission. The Commission shall have the
following powers and functions:
1. To act as a central government to establish and administer programs and
provide services common to the area;
2. To levy and collect taxes and special assessments, borrow and expend money
and issue bonds, revenue certificates, and other obligations of indebtedness.
11. To coordinate and monitor governmental and private activities pertaining to

essential services such as transportation, flood control and drainage, water
supply and sewerage, social, health and environmental services, housing, park
development, and others;
12. To insure and monitor the undertaking of a comprehensive social, economic
and physical planning and development of the area;
13. To study the feasibility of increasing barangay participation in the affairs of
their respective local governments and to propose to the President of the
Philippines definite programs and policies for implementation;
14. To submit within thirty (30) days after the close of each fiscal year an annual
report to the President of the Philippines and to submit a periodic report
whenever deemed necessary; and
15. To perform such other tasks as may be assigned or directed by the President
of the Philippines.
40
The MMC was the "central government" of Metro Manila for the purpose of establishing
and administering programs providing services common to the area. As a "central
government" it had the power to levy and collect taxes and special assessments, the
power to charge and collect fees; the power to appropriate money for its operation, and at
the same time, review appropriations for the city and municipal units within its
jurisdiction. It was bestowed the power to enact or approve ordinances, resolutions and fix
penalties for violation of such ordinances and resolutions. It also had the power to review,
amend, revise or repeal all ordinances, resolutions and acts of any of the four (4) cities
and thirteen (13) municipalities comprising Metro Manila.
Sec. 1. The territorial and political subdivisions of the Republic of the Philippines
are the provinces, cities, municipalities and barangays. There shall be
autonomous regions in Muslim Mindanao and the Cordilleras as herein provided.
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
The Constitution, however, recognized the necessity of creating metropolitan regions not
only in the existing National Capital Region but also in potential equivalents in the Visayas
and Mindanao. 43 Section 11 of the same Article X thus provided:
P.D. No. 824 further provided:

Sec. 9. Until otherwise provided, the governments of the four cities and thirteen
municipalities in the Metropolitan Manila shall continue to exist in their present
form except as may be inconsistent with this Decree. The members of the
existing city and municipal councils in Metropolitan Manila shall, upon
promulgation of this Decree, and until December 31, 1975, become members of
the Sangguniang Bayan which is hereby created for every city and municipality
of Metropolitan Manila.
In addition, the Sangguniang Bayan shall be composed of as many barangay
captains as may be determined and chosen by the Commission, and such
number of representatives from other sectors of the society as may be
appointed by the President upon recommendation of the Commission.
xxx
xxx
xxx
The Sangguniang Bayan may recommend to the Commission ordinances,

resolutions or such measures as it may adopt; Provided, that no such ordinance,
resolution or measure shall become effective, until after its approval by the
Commission; and Provided further, that the power to impose taxes and other
levies, the power to appropriate money and the power to pass ordinances or
resolutions with penal sanctions shall be vested exclusively in the Commission.
The creation of the MMC also carried with it the creation of the Sangguniang Bayan. This
was composed of the members of the component city and municipal councils, barangay
captains chosen by the MMC and sectoral representatives appointed by the President.
The Sangguniang Bayan had the power to recommend to the MMC the adoption of
ordinances, resolutions or measures. It was the MMC itself, however, that possessed
legislative powers. All ordinances, resolutions and measures recommended by
the Sangguniang Bayan were subject to the MMC's approval. Moreover, the power to
impose taxes and other levies, the power to appropriate money, and the power to pass
ordinances or resolutions with penal sanctions were vested exclusively in the MMC.
Thus, Metropolitan Manila had a "central government," i.e., the MMC which fully possessed
legislative police powers. Whatever legislative powers the component cities and
municipalities had were all subject to review and approval by the MMC.
After President Corazon Aquino assumed power, there was a clamor to restore the
autonomy of the local government units in Metro Manila. Hence, Sections 1 and 2 of
Article X of the 1987 Constitution provided:
Sec. 11. The Congress may, by law, create special metropolitan political
subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The
component cities and municipalities shall retain their basic autonomy and shall
be entitled to their own local executives and legislative assemblies. The
jurisdiction of the metropolitan authority that will thereby be created shall be
limited to basic services requiring coordination.
Constitution itself expressly provides that Congress may, by law, create "special
metropolitan political subdivisions" which shall be subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected; the jurisdiction of this
subdivision shall be limited to basic services requiring coordination; and the cities and
municipalities comprising this subdivision shall retain their basic services requiring
coordination; and the cities and municipalities comprising this subdivision shall retain
their basic autonomy and their own local executive and legislative assemblies. 44 Pending
enactment of this law, the Transitory Provisions of the Constitution gave the President of
the Philippines the power to constitute the Metropolitan Authority, viz:
Sec. 8. Until otherwise provided by Congress, the President may constitute the
Metropolitan Authority to be composed of the heads of all local government
units comprising the Metropolitan Manila area. 45
In 1990, President Aquino issued Executive Order (E. O.) No. 392 and constituted the
Metropolitan Manila Authority (MMA). The powers and functions of the MMC were devolved
to the MMA. 46 It ought to be stressed, however, that not all powers and functions of the
MMC were passed to the MMA. The MMA's power was limited to the "delivery of basic
urban services requiring coordination in Metropolitan Manila." 47 The MMA's governing
body, the Metropolitan Manila Council, although composed of the mayors of the
component cities and municipalities, was merely given power of: (1) formulation of
policies on the delivery of basic services requiring coordination and consolidation; and (2)
promulgation resolutions and other issuances, approval of a code of basic services and the
exercise of its rule-making power. 48
Under the 1987 Constitution, the local government units became primarily responsible for
the governance of their respective political subdivisions. The MMA's jurisdiction was
limited to addressing common problems involving basic services that transcended local
boundaries. It did not have legislative power. Its power was merely to provide the local
government units technical assistance in the preparation of local development plans. Any
semblance of legislative power it had was confined to a "review [of] legislation proposed
by the local legislative assemblies to ensure consistency among local governments and
with the comprehensive development plan of Metro Manila," and to "advise the local
governments accordingly." 49
41
When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and
administrative region" and the MMDA a "special development authority" whose functions
were "without prejudice to the autonomy of the affected local government units." The
character of the MMDA was clearly defined in the legislative debates enacting its charter.
R.A. No. 7924 originated as House Bill No. 14170/11116 and was introduced by several
legislators led by Dante Tinga, Roilo Golez and Feliciano Belmonte. It was presented to the
House of Representatives by the Committee on Local Governments chaired by
Congressman Ciriaco R. Alfelor. The bill was a product of Committee consultations with the
local government units in the National Capital Region (NCR), with former Chairmen of the
MMC and MMA,50 and career officials of said agencies. When the bill was first taken up by
the Committee on Local Governments, the following debate took place:
THE CHAIRMAN [Hon. Ciriaco Alfelor]: Okay, Let me explain. This has been
debated a long time ago, you know. It's a special . . . we can create a special
metropolitan political subdivision.
Actually, there are only six (6) political subdivisions provided for in the
Constitution: barangay, municipality, city, province, and we have the
Autonomous Region of Mindanao and we have the Cordillera. So we have 6. Now.
....
HON. [Elias] LOPEZ: May I interrupt, Mr. Chairman. In the case of the
Autonomous Region, that is also specifically mandated by the Constitution.
THE CHAIRMAN: That's correct. But it is considered to be a political subdivision.
What is the meaning of a political subdivision? Meaning to say, that it has its
own government, it has its own political personality, it has the power to tax, and
all governmental powers: police power and everything. All right. Authority is
different; because it does not have its own government. It is only a council, it is
an organization of political subdivision, powers, "no, which is not imbued with
any political power.
If you go over Section 6, where the powers and functions of the Metro Manila
Development Authority, it is purely coordinative. And it provides here that the
council is policy-making. All right.
Under the Constitution is a Metropolitan Authority with coordinative power.
Meaning to say, it coordinates all of the different basic services which have to be
delivered to the constituency. All right.
There is now a problem. Each local government unit is given its respective . . . as
a political subdivision. Kalookan has its powers, as provided for and protected
and guaranteed by the Constitution. All right, the exercise. However, in the
exercise of that power, it might be deleterious and disadvantageous to other
local government units. So, we are forming an authority where all of these will
be members and then set up a policy in order that the basic services can be
effectively coordinated. All right.
Of course, we cannot deny that the MMDA has to survive. We have to provide
some funds, resources. But it does not possess any political power. We do not
elect the Governor. We do not have the power to tax. As a matter of fact, I was
trying to intimate to the author that it must have the power to sue and be sued
because it coordinates. All right. It coordinates practically all these basic
services so that the flow and the distribution of the basic services will be
continuous. Like traffic, we cannot deny that. It's before our eyes. Sewerage,
flood control, water system, peace and order, we cannot deny these. It's right on
our face. We have to look for a solution. What would be the right solution? All
right, we envision that there should be a coordinating agency and it is called an
authority. All right, if you do not want to call it an authority, it's alright. We may
call it a council or maybe a management agency.
xxx
xxx
xxx
51
Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA
is that given to the Metro Manila Council to promulgate administrative rules and
regulations in the implementation of the MMDA's functions. There is no grant of authority
to enact ordinances and regulations for the general welfare of the inhabitants of the
metropolis. This was explicitly stated in the last Committee deliberations prior to the bill's
presentation to Congress. Thus:
THE CHAIRMAN: Yeah, but we have to go over the suggested revision. I think this
was already approved before, but it was reconsidered in view of the proposals,
set-up, to make the MMDA stronger. Okay, so if there is no objection to
paragraph "f". . . And then next is paragraph "b," under Section 6. "It shall
approve metro-wide plans, programs and projects and issue ordinances or
resolutions deemed necessary by the MMDA to carry out the purposes of this
Act." Do you have the powers? Does the MMDA... because that takes the form of
a local government unit, a political subdivision.
HON. [Feliciano] BELMONTE: Yes, I believe so, your Honor. When we say that it
has the policies, it's very clear that those policies must be followed. Otherwise,
what's the use of empowering it to come out with policies. Now, the policies may
be in the form of a resolution or it may be in the form of a ordinance. The term
"ordinance" in this case really gives it more teeth, your honor. Otherwise, we are
going to see a situation where you have the power to adopt the policy but you
cannot really make it stick as in the case now, and I think here is Chairman
Bunye. I think he will agree that that is the case now. You've got the power to set
a policy, the body wants to follow your policy, then we say let's call it an
ordinance and see if they will not follow it.
THE CHAIRMAN: That's very nice. I like that. However, there is a constitutional
impediment.1wphi1 You are making this MMDA a political subdivision. The
creation of the MMDA would be subject to a plebiscite. That is what I'm trying to
avoid. I've been trying to avoid this kind of predicament. Under the Constitution
it states: if it is a political subdivision, once it is created it has to be subject to a
plebiscite. I'm trying to make this as administrative. That's why we place the
Chairman as a cabinet rank.
HON. BELMONTE: All right, Mr. Chairman, okay, what you are saying there is . . . .
.
THE CHAIRMAN: In setting up ordinances, it is a political exercise, Believe me.
42
HON. [Elias] LOPEZ: Mr. Chairman, it can be changed into issuances of rules and
regulations. That would be . . . it shall also be enforced.
HON. BELMONTE: Okay, I will . . . .
HON. LOPEZ: And you can also say that violation of such rule, you impose a
sanction. But you know, ordinance has a different legal connotation.
HON. BELMONTE: All right, I defer to that opinion, your Honor.
We stress that this decision does not make light of the MMDA's noble efforts to solve the
chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic bottlenecks
plague the metropolis. Even our once sprawling boulevards and avenues are now
crammed with cars while city streets are clogged with motorists and pedestrians. Traffic
has become a social malaise affecting our people's productivity and the efficient delivery
of goods and services in the country. The MMDA was created to put some order in the
metropolitan transportation system but unfortunately the powers granted by its charter
are limited. Its good intentions cannot justify the opening for public use of a private street
in a private subdivision without any legal warrant. The promotion of the general welfare is
not antithetical to the preservation of the rule of law.1wphi1.nt
THE CHAIRMAN: So instead of ordinances, say rules and regulations.
IN VIEW WHEREOF, the petition is denied. The Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 39549 are affirmed.
HON. BELMONTE: Or resolutions. Actually, they are actually considering

resolutions now.
G.R. No. 144681
THE CHAIRMAN: Rules and resolutions.

HON. BELMONTE: Rules, regulations and resolutions.
52
The draft of H. B. No. 14170/11116 was presented by the Committee to the House of
Representatives. The explanatory note to the bill stated that the proposed MMDA is a
"development authority" which is a "national agency, not a political government
unit." 53 The explanatory note was adopted as the sponsorship speech of the Committee
on Local Governments. No interpellations or debates were made on the floor and no
amendments introduced. The bill was approved on second reading on the same day it was
presented. 54
When the bill was forwarded to the Senate, several amendments were
made.1wphi1 These amendments, however, did not affect the nature of the MMDA as
originally conceived in the House of Representatives. 55
It is thus beyond doubt that the MMDA is not a local government unit or a public
corporation endowed with legislative power. It is not even a "special metropolitan political
subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a
"special metropolitan political subdivision" requires the approval by a majority of the votes
cast in a plebiscite in the political units directly affected." 56 R. A. No. 7924 was not
submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is
not an official elected by the people, but appointed by the President with the rank and
privileges of a cabinet member. In fact, part of his function is to perform such other duties
as may be assigned to him by the President, 57 whereas in local government units, the
President merely exercises supervisory authority. This emphasizes the administrative
character of the MMDA.
Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A.
No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of
the community. It is the local government units, acting through their respective legislative
councils, that possess legislative power and police power. In the case at bar, the
Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering
the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal
and the respondent Court of Appeals did not err in so ruling. We desist from ruling on the
other issues as they are unnecessary.
June 21, 2004
PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN HERMOGENES P.

POBRE, ASSOCIATE COMMISSIONER ARMANDO PASCUAL, BOARD OF MEDICINE,
CHAIRMAN RODOLFO P. DE GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE,
RUBEN R. POLICARPIO, EDGARDO T. FERNANDO and RICARDO D. FULGENCIO
II, petitioners,
vs.
ARLENE V. DE GUZMAN, VIOLETA V. MENESES, CELERINA S. NAVARRO, JOSE
RAMONCITO P. NAVARRO, ARNEL V. HERRERA and GERALDINE ELIZABETH M.
PAGILAGAN, ELNORA R. RAQUENO, MARISSA A. REGODON, LAURA M. SANTOS,
KARANGALAN D. SERRANO, DANILO A. VILLAVER, MARIA ROSARIO L. LEONOR,
ALICIA S. LIZANO, MARITEL M. ECHIVERRI, BERNADETTE T. MENDOZA,
FERNANDO F. MANDAPAT, ALELI A. GOLLAYAN, ELCIN C. ARRIOLA, HERMINIGILDA
E. CONEJOS, SALLY B. BUNAGAN, ROGELIO B. ANCHETA, OSCAR H. PADUA, JR.,
EVELYN D. GRAJO, EVELYN S. ACOSTA, MARGARITA BELINDA L. VICENCIO,
VALENTINO P. ARBOLEDA, EVELYN O. RAMOS, ACHILLES J. PERALTA, CORAZON M.
CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO, MA. LUISA S. GUTIERREZ, LYDIA C.
CHAN, OPHELIA C. HIDALGO, FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL I.
TOLENTINO, GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L. SERRANO,
FEDERICO L. CASTILLO, MELITA J. CAEDO, SAMUEL B. BANGOY, BERNARDITA B.
SY, GLORIA T. JULARBAL, FREDERICK D. FRANCISCO, CARLOS M. BERNARDO, JR.,
HUBERT S. NAZARENO, CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN,
BERNADETTE H. CABUHAT, NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L.
CUE, EVELYN C. CUNDANGAN, RHONEIL R. DEVERATURDA, DERILEEN D. DORADO,
SAIBZUR N. EDDING, VIOLETA C. FELIPE, HERMINIO V. FERNANDEZ, JR., MARIA
VICTORIA M. LACSAMANA, NORMA G. LAFAVILLA, RUBY B. LANTIN, MA. ELOISA
Q. MALLARI, CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A.
SALVADOR, ROBERT B. SANCHEZ, MERLY D. STA. ANA and YOLANDA P.
UNICA, respondents.
DECISION
TINGA, J.:
This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify
the D E C I S I O N,1dated May 16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283.
The appellate court affirmed the judgment2 dated December 19, 1994, of the Regional
Trial Court (RTC) of Manila, Branch 52, in Civil Case No. 93-66530. The trial court allowed
43
the respondents to take their physicians oath and to register as duly licensed physicians.
Equally challenged is the R E S O L U T I O N3 promulgated on August 25, 2000 of the
Court of Appeals, denying petitioners Motion for Reconsideration.
The facts of this case are as follows:
The respondents are all graduates of the Fatima College of Medicine, Valenzuela
City, Metro Manila. They passed the Physician Licensure Examination conducted
in February 1993 by the Board of Medicine (Board). Petitioner Professional
Regulation Commission (PRC) then released their names as successful
examinees in the medical licensure examination.
Shortly thereafter, the Board observed that the grades of the seventy-nine
successful examinees from Fatima College in the two most difficult subjects in
the medical licensure exam, Biochemistry (Bio-Chem) and Obstetrics and
Gynecology (OB-Gyne), were unusually and exceptionally high. Eleven Fatima
examinees scored 100% in Bio-Chem and ten got 100% in OB-Gyne, another
eleven got 99% in Bio-Chem, and twenty-one scored 99% in OB-Gyne. The Board
also observed that many of those who passed from Fatima got marks of 95% or
better in both subjects, and no one got a mark lower than 90%. A comparison of
the performances of the candidates from other schools was made. The Board
observed that strangely, the unusually high ratings were true only for Fatima
College examinees. It was a record-breaking phenomenon in the history of the
Physician Licensure Examination.
On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as
physicians of all the examinees from the Fatima College of Medicine. 4 The PRC asked the
National Bureau of Investigation (NBI) to investigate whether any anomaly or irregularity
marred the February 1993 Physician Licensure Examination.
Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert
mathematician and authority in statistics, and later president of the Ateneo de Manila
University, to conduct a statistical analysis of the results in Bio-Chem and Ob-Gyne of the
said examination.
On June 10, 1993, Fr. Nebres submitted his report. He reported that a comparison of the
scores in Bio-Chem and Ob-Gyne, of the Fatima College examinees with those of
examinees from De La Salle University and Perpetual Help College of Medicine showed
that the scores of Fatima College examinees were not only incredibly high but unusually
clustered close to each other. He concluded that there must be some unusual reason
creating the clustering of scores in the two subjects. It must be a cause "strong enough to
eliminate the normal variations that one should expect from the examinees [of Fatima
College] in terms of talent, effort, energy, etc." 5
For its part, the NBI found that "the questionable passing rate of Fatima examinees in the
[1993] Physician Examination leads to the conclusion that the Fatima examinees gained
early access to the test questions."6
On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S.
Navarro, Jose Ramoncito P. Navarro, Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan
(Arlene V. De Guzman et al., for brevity) filed a special civil action for mandamus, with
prayer for preliminary mandatory injunction docketed as Civil Case No. 93-66530 with the
Regional Trial Court (RTC) of Manila, Branch 52. Their petition was adopted by the other
respondents as intervenors.
Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents
with "immorality, dishonest conduct, fraud, and deceit" in connection with the Bio-Chem
and Ob-Gyne examinations. It recommended that the test results of the Fatima examinees
be nullified. The case was docketed as Adm. Case No. 1687 by the PRC.
On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the
preliminary mandatory injunction sought by the respondents. It ordered the petitioners to
administer the physicians oath to Arlene V. De Guzman et al., and enter their names in
the rolls of the PRC.
The petitioners then filed a special civil action for certiorari with the Court of Appeals to
set aside the mandatory injunctive writ, docketed as CA-G.R. SP No. 31701.
On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the
dispositive portion of theDecision ordaining as follows:
WHEREFORE, this petition is GRANTED. Accordingly, the writ of preliminary
mandatory injunction issued by the lower court against petitioners is hereby
nullified and set aside.
SO ORDERED.7
Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No.
112315. In ourResolution dated May 23, 1994, we denied the petition for failure to show
reversible error on the part of the appellate court.
Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pretrial conference in Civil Case No. 93-66530 was held. Then, the parties, agreed to reduce
the testimonies of their respective witnesses to sworn questions-and-answers. This was
without prejudice to cross-examination by the opposing counsel.
On December 13, 1993, petitioners counsel failed to appear at the trial in the mistaken
belief that the trial was set for December 15. The trial court then ruled that petitioners
waived their right to cross-examine the witnesses.
On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the
reasons for her non-appearance and praying that the cross-examination of the witnesses
for the opposing parties be reset. The trial court denied the motion for lack of notice to
adverse counsel. It also denied the Motion for Reconsideration that followed on the ground
that adverse counsel was notified less than three (3) days prior to the hearing.
Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687,
the respondents herein moved for the issuance of a restraining order, which the lower
court granted in its Order dated April 4, 1994.
The petitioners then filed with this Court a petition for certiorari docketed as G.R. No.
115704, to annul the Ordersof the trial court dated November 13, 1993, February 28,
44
1994, and April 4, 1994. We referred the petition to the Court of Appeals where it was
docketed as CA-G.R. SP No. 34506.
On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows:
WHEREFORE, the present petition for certiorari with prayer for temporary
restraining order/preliminary injunction is GRANTED and the Orders of December
13, 1993, February 7, 1994, February 28, 1994, and April 4, 1994 of the RTCManila, Branch 52, and all further proceedings taken by it in Special Civil Action
No. 93-66530 are hereby DECLARED NULL and VOID. The said RTC-Manila is
ordered to allow petitioners counsel to cross-examine the respondents
witnesses, to allow petitioners to present their evidence in due course of trial,
and thereafter to decide the case on the merits on the basis of the evidence of
the parties. Costs against respondents.
IT IS SO ORDERED.8
The trial was then set and notices were sent to the parties.
A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent ExParte Manifestation and Motion praying for the partial reconsideration of the appellate
courts decision in CA-G.R. SP No. 34506, and for the outright dismissal of Civil Case No.
93-66530. The petitioners asked for the suspension of the proceedings.
In its Order dated September 23, 1994, the trial court granted the aforesaid motion,
cancelled the scheduled hearing dates, and reset the proceedings to October 21 and 28,
1994.
Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for
reconsideration in CA-G.R. SP No. 34506. Thus, petitioners filed with the Supreme Court a
petition for review docketed as G.R. No. 117817, entitled Professional Regulation
Commission, et al. v. Court of Appeals, et al.
It should be made clear that this decision is without prejudice to any

administrative disciplinary action which may be taken against any of the
petitioners for such causes and in the manner provided by law and consistent
with the requirements of the Constitution as any other professionals.
No costs.
SO ORDERED.10
As a result of these developments, petitioners filed with this Court a petition for review on
certiorari docketed as G.R. No. 118437, entitled Professional Regulation Commission v.
Hon. David G. Nitafan, praying inter alia, that (1) G.R. No. 118437 be consolidated with
G.R. No. 117817; (2) the decision of the Court of Appeals dated August 31, 1994 in CAG.R. SP No. 34506 be nullified for its failure to decree the dismissal of Civil Case No. 9366530, and in the alternative, to set aside the decision of the trial court in Civil Case No.
93-66530, order the trial court judge to inhibit himself, and Civil Case No. 93-66530 be reraffled to another branch.
On December 26, 1994, the petitioners herein filed their Notice of Appeal11 in Civil Case
No. 93-66530, thereby elevating the case to the Court of Appeals, where it was docketed
as CA-G.R. SP No. 37283.
In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No. 117817.
On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise:
WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for being moot. The
petition in G.R. No. 118437 is likewise DISMISSED on the ground that there is a
pending appeal before the Court of Appeals. Assistant Solicitor General Amparo
M. Cabotaje-Tang is advised to be more circumspect in her dealings with the
courts as a repetition of the same or similar acts will be dealt with accordingly.
SO ORDERED.12
On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil
Case No. 93-66530. Upon motion of the respondents herein, the trial court ruled that
herein petitioners waived their right to cross-examine the herein respondents. Trial was
reset to November 28, 1994.
On November 25, 1994, petitioners counsel moved for the inhibition of the trial court
judge for alleged partiality. On November 28, 1994, the day the Motion to Inhibit was to be
heard, petitioners failed to appear. Thus, the trial court denied the Motion to Inhibit and
declared Civil Case No. 93-66530 deemed submitted for decision.
On December 19, 1994, the trial court handed down its judgment in Civil Case No. 9366530, the fallo of which reads:
WHEREFORE, judgment is rendered ordering the respondents to allow the
petitioners and intervenors (except those with asterisks and footnotes in pages 1
& 2 of this decision) [sic],9 to take the physicians oath and to register them as
physicians.
While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V.
Herrera, one of the original petitioners in Civil Case No. 93-66530, joined by twenty-seven
intervenors, to wit: Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza,
Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza,
Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura
M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S.
Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert
B. Sanchez, Maria Rosario L. Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma,
Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio,
Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro, manifested that they were no
longer interested in proceeding with the case and moved for its dismissal. A similar
manifestation and motion was later filed by intervenors Mary Jean I. Yeban-Merlan,
Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P.
Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R.
Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V.
Meneses, Melita J. Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano,
Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals
ruled that its decision in CA-G.R. SP No. 37283 would not apply to them.
45
On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the
following fallo, to wit:
WHEREFORE, finding no reversible error in the decision appealed from, We
hereby AFFIRM the same and DISMISS the instant appeal.
No pronouncement as to costs.
SO ORDERED.13
In sustaining the trial courts decision, the appellate court ratiocinated that the
respondents complied with all the statutory requirements for admission into the licensure
examination for physicians in February 1993. They all passed the said examination.
Having fulfilled the requirements of Republic Act No. 2382, 14 they should be allowed to
take their oaths as physicians and be registered in the rolls of the PRC.
Hence, this petition raising the following issues:
I
WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF ACTION FOR
MANDAMUS AGAINST PETITIONERS IN THE LIGHT OF THE RESOLUTION OF THIS
HONORABLE COURT IN G.R. NO. 112315 AFFIRMING THE COURT OF APPEALS
DECISION DECLARING THAT IF EVER THERE IS SOME DOUBT AS TO THE MORAL
FITNESS OF EXAMINEES, THE ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS
NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL EXAMINEES.
II
WHETHER OR NOT THE PETITION FOR MANDAMUS COULD PROCEED DESPITE
THE PENDENCY OF ADMINISTRATIVE CASE NO. 1687, WHICH WAS PRECISELY
LODGED TO DETERMINE THE MORAL FITNESS OF RESPONDENTS TO BECOME
DOCTORS.15
To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in
sustaining the judgment of the trial court that respondents are entitled to a writ of
mandamus?
The petitioners submit that a writ of mandamus will not lie in this case. They point out
that for a writ of mandamus to issue, the applicant must have a well-defined, clear and
certain legal right to the thing demanded and it is the duty of the respondent to perform
the act required. Thus, mandamus may be availed of only when the duty sought to be
performed is a ministerial and not a discretionary one. The petitioners argue that the
appellate courts decision in CA-G.R. SP No. 37283 upholding the decision of the trial court
in Civil Case No. 93-66530 overlooked its own pronouncement in CA-G.R. SP No. 31701.
The Court of Appeals held in CA-G.R. SP No. 31701 that the issuance of a license to
engage in the practice of medicine becomes discretionary on the PRC if there exists some
doubt that the successful examinee has not fully met the requirements of the law. The
petitioners stress that this Courts Resolution dated May 24, 1994 in G.R. No. 112315 held
that there was no showing "that the Court of Appeals had committed any reversible error
in rendering the questioned judgment" in CA-G.R. SP No. 31701. The petitioners point out
that our Resolution in G.R. No. 112315 has long become final and executory.
Respondents counter that having passed the 1993 licensure examinations for physicians,
the petitioners have the obligation to administer to them the oath as physicians and to
issue their certificates of registration as physicians pursuant to Section 20 16 of Rep. Act
No. 2382. The Court of Appeals in CA-G.R. SP No. 37283, found that respondents complied
with all the requirements of Rep. Act No. 2382. Furthermore, respondents were admitted
by the Medical Board to the licensure examinations and had passed the same. Hence,
pursuant to Section 20 of Rep. Act No. 2382, the petitioners had the obligation to
administer their oaths as physicians and register them.
Mandamus is a command issuing from a court of competent jurisdiction, in the name of
the state or the sovereign, directed to some inferior court, tribunal, or board, or to some
corporation or person requiring the performance of a particular duty therein specified,
which duty results from the official station of the party to whom the writ is directed, or
from operation of law.17 Section 3 of Rule 6518 of the 1997 Rules of Civil Procedure outlines
two situations when a writ of mandamus may issue, when any tribunal, corporation,
board, officer or person unlawfully (1) neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station; or (2) excludes
another from the use and enjoyment of a right or office to which the other is entitled.
We shall discuss the issues successively.
1. On The Existence of a Duty of the Board of Medicine To Issue Certificates of
Registration as Physicians under Rep. Act No. 2382.
For mandamus to prosper, there must be a showing that the officer, board, or official
concerned, has a clear legal duty, not involving discretion. 19 Moreover, there must be
statutory authority for the performance of the act, 20 and the performance of the duty has
been refused.21 Thus, it must be pertinently asked now: Did petitioners have the duty to
administer the Hippocratic Oath and register respondents as physicians under the Medical
Act of 1959?
As found by the Court of Appeals, on which we agree on the basis of the records:
It bears emphasizing herein that petitioner-appellees and intervenor-appellees
have fully complied with all the statutory requirements for admission into the
licensure examinations for physicians conducted and administered by the
respondent-appellants on February 12, 14, 20 and 21, 1993. Stress, too, must be
made of the fact that all of them successfully passed the same examinations. 22
The crucial query now is whether the Court of Appeals erred in concluding that petitioners
should allow the respondents to take their oaths as physicians and register them, steps
which would enable respondents to practice the medical profession 23 pursuant to Section
20 of the Medical Act of 1959?
The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in
concluding that the petitioners had the ministerial obligation to administer the Hippocratic
Oath to respondents and register them as physicians. But it is a basic rule in statutory
construction that each part of a statute should be construed in connection with every
other part to produce a harmonious whole, not confining construction to only one
46
section.24 The intent or meaning of the statute should be ascertained from the statute
taken as a whole, not from an isolated part of the provision. Accordingly, Section 20, of
Rep. Act No. 2382, as amended should be read in conjunction with the other provisions of
the Act. Thus, to determine whether the petitioners had the ministerial obligation to
administer the Hippocratic Oath to respondents and register them as physicians, recourse
must be had to the entirety of the Medical Act of 1959.
A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the
word "shall" with respect to the issuance of certificates of registration. Thus, the
petitioners "shall sign and issue certificates of registration to those who have
satisfactorily complied with the requirements of the Board." In statutory construction the
term "shall" is a word of command. It is given imperative meaning. Thus, when an
examinee satisfies the requirements for the grant of his physicians license, the Board is
obliged to administer to him his oath and register him as a physician, pursuant to Section
20 and par. (1) of Section 2225 of the Medical Act of 1959.
However, the surrounding circumstances in this case call for serious inquiry concerning
the satisfactory compliance with the Board requirements by the respondents. The
unusually high scores in the two most difficult subjects was phenomenal, according to Fr.
Nebres, the consultant of PRC on the matter, and raised grave doubts about the integrity,
if not validity, of the tests. These doubts have to be appropriately resolved.
Under the second paragraph of Section 22, the Board is vested with the power to conduct
administrative investigations and "disapprove applications for examination or
registration," pursuant to the objectives of Rep. Act No. 2382 as outlined in Section
126 thereof. In this case, after the investigation, the Board filed before the PRC, Adm. Case
No. 1687 against the respondents to ascertain their moral and mental fitness to practice
medicine, as required by Section 927 of Rep. Act No. 2382. In its Decision dated July 1,
1997, the Board ruled:
WHEREFORE, the BOARD hereby CANCELS the respondents[] examination
papers in the Physician Licensure Examinations given in February 1993 and
further DEBARS them from taking any licensure examination for a period of ONE
(1) YEAR from the date of the promulgation of this DECISION. They may, if they
so desire, apply for the scheduled examinations for physicians after the lapse of
the period imposed by the BOARD.
SO ORDERED.28
Until the moral and mental fitness of the respondents could be ascertained, according to
petitioners, the Board has discretion to hold in abeyance the administration of the
Hippocratic Oath and the issuance of the certificates to them. The writ of mandamus does
not lie to compel performance of an act which is not duly authorized.
The respondents nevertheless argue that under Section 20, the Board shall not issue a
certificate of registration only in the following instances: (1) to any candidate who has
been convicted by a court of competent jurisdiction of any criminal offense involving
moral turpitude; (2) or has been found guilty of immoral or dishonorable conduct after the
investigation by the Board; or (3) has been declared to be of unsound mind. They aver
that none of these circumstances are present in their case.
Petitioners reject respondents argument. We are informed that in Board Resolution No.
26,29 dated July 21, 1993, the Board resolved to file charges against the examinees from
Fatima College of Medicine for "immorality, dishonesty, fraud, and deceit in the
Obstetrics-Gynecology and Biochemistry examinations." It likewise sought to cancel the
examination results obtained by the examinees from the Fatima College.
Section 830 of Rep. Act No. 2382 prescribes, among others, that a person who aspires to
practice medicine in the Philippines, must have "satisfactorily passed the corresponding
Board Examination." Section 22, in turn, provides that the oath may only be administered
"to physicians who qualified in the examinations." The operative word here is
"satisfactorily," defined as "sufficient to meet a condition or obligation" or "capable of
dispelling doubt or ignorance."31 Gleaned from Board Resolution No. 26, the licensing
authority apparently did not find that the respondents "satisfactorily passed" the licensure
examinations. The Board instead sought to nullify the examination results obtained by the
respondents.
2. On the Right Of The Respondents To Be Registered As Physicians
The function of mandamus is not to establish a right but to enforce one that has been
established by law. If no legal right has been violated, there can be no application of a
legal remedy, and the writ of mandamus is a legal remedy for a legal right. 32 There must
be a well-defined, clear and certain legal right to the thing demanded. 33 It is long
established rule that a license to practice medicine is a privilege or franchise granted by
the government.34
It is true that this Court has upheld the constitutional right 35 of every citizen to select a
profession or course of study subject to a fair, reasonable, and equitable admission and
academic requirements.36 But like all rights and freedoms guaranteed by the Charter, their
exercise may be so regulated pursuant to the police power of the State to safeguard
health, morals, peace, education, order, safety, and general welfare of the people. 37 Thus,
persons who desire to engage in the learned professions requiring scientific or technical
knowledge may be required to take an examination as a prerequisite to engaging in their
chosen careers. This regulation takes particular pertinence in the field of medicine, to
protect the public from the potentially deadly effects of incompetence and ignorance
among those who would practice medicine. In a previous case, it may be recalled, this
Court has ordered the Board of Medical Examiners to annul both its resolution and
certificate authorizing a Spanish subject, with the degree of Licentiate in Medicine and
Surgery from the University of Barcelona, Spain, to practice medicine in the Philippines,
without first passing the examination required by the Philippine Medical Act. 38 In another
case worth noting, we upheld the power of the State to upgrade the selection of
applicants into medical schools through admission tests. 39
It must be stressed, nevertheless, that the power to regulate the exercise of a profession
or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary,
despotic, or oppressive manner. A political body that regulates the exercise of a particular
privilege has the authority to both forbid and grant such privilege in accordance with
certain conditions. Such conditions may not, however, require giving up ones
constitutional rights as a condition to acquiring the license. 40 Under the view that the
legislature cannot validly bestow an arbitrary power to grant or refuse a license on a
public agency or officer, courts will generally strike down license legislation that vests in
public officials discretion to grant or refuse a license to carry on some ordinarily lawful
business, profession, or activity without prescribing definite rules and conditions for the
guidance of said officials in the exercise of their power. 41
47
In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382,
as amended, which prescribes the requirements for admission to the practice of medicine,
the qualifications of candidates for the board examinations, the scope and conduct of the
examinations, the grounds for denying the issuance of a physicians license, or revoking a
license that has been issued. Verily, to be granted the privilege to practice medicine, the
applicant must show that he possesses all the qualifications and none of the
disqualifications. Furthermore, it must appear that he has fully complied with all the
conditions and requirements imposed by the law and the licensing authority. Should doubt
taint or mar the compliance as being less than satisfactory, then the privilege will not
issue. For said privilege is distinguishable from a matter of right, which may be demanded
if denied. Thus, without a definite showing that the aforesaid requirements and conditions
have been satisfactorily met, the courts may not grant the writ of mandamus to secure
said privilege without thwarting the legislative will.
3. On the Ripeness of the Petition for Mandamus
Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the
petition for mandamus below for being premature. They argue that the administrative
remedies had not been exhausted. The records show that this is not the first time that
petitioners have sought the dismissal of Civil Case No. 93-66530. This issue was raised in
G.R. No. 115704, which petition we referred to the Court of Appeals, where it was
docketed as CA-G.R. SP No. 34506. On motion for reconsideration in CA-G.R. SP No.
34506, the appellate court denied the motion to dismiss on the ground that the prayers
for the nullification of the order of the trial court and the dismissal of Civil Case No. 9366530 were inconsistent reliefs. In G.R. No. 118437, the petitioners sought to nullify the
decision of the Court of Appeals in CA-G.R. SP No. 34506 insofar as it did not order the
dismissal of Civil Case No. 93-66530. In our consolidated decision, dated July 9, 1998, in
G.R. Nos. 117817 & 118437, this Court speaking through Justice Bellosillo opined that:
Indeed, the issue as to whether the Court of Appeals erred in not ordering the
dismissal of Civil Case No. 93-66530 sought to be resolved in the instant petition
has been rendered meaningless by an event taking place prior to the filing of
this petition and denial thereof should follow as a logical consequence. 42 There is
no longer any justiciable controversy so that any declaration thereon would be of
no practical use or value.43 It should be recalled that in its decision of 19
December 1994 the trial court granted the writ of mandamus prayed for by
private respondents, which decision was received by petitioners on 20
December 1994. Three (3) days after, or on 23 December 1994, petitioners filed
the instant petition. By then, the remedy available to them was to appeal the
decision to the Court of Appeals, which they in fact did, by filing a notice of
appeal on 26 December 1994.44
The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor
will their reliance upon the doctrine of the exhaustion of administrative remedies in the
instant case advance their cause any.
Section 2645 of the Medical Act of 1959 provides for the administrative and judicial
remedies that respondents herein can avail to question Resolution No. 26 of the Board of
Medicine, namely: (a) appeal the unfavorable judgment to the PRC; (b) should the PRC
ruling still be unfavorable, to elevate the matter on appeal to the Office of the President;
and (c) should they still be unsatisfied, to ask for a review of the case or to bring the case
to court via a special civil action of certiorari. Thus, as a rule, mandamus will not lie when
administrative remedies are still available.46 However, the doctrine of exhaustion of
administrative remedies does not apply where, as in this case, a pure question of law is
raised.47 On this issue, no reversible error may, thus, be laid at the door of the appellate
court in CA-G.R. SP No. 37283, when it refused to dismiss Civil Case No. 93-66530.
As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat,
Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa
A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H.
Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C.
Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N.
Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula,
Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla,
Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose
Ramoncito P. Navarro manifested to the Court of Appeals during the pendency of CA-G.R.
SP No. 37283, that they were no longer interested in proceeding with the case and moved
for its dismissal insofar as they were concerned. A similar manifestation and motion were
later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G.
Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G.
Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A.
Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J.
Caedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver,
Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and
motions, the appellate court in CA-G.R. SP No. 37283 decreed that its ruling would not
apply to them. Thus, inasmuch as the instant case is a petition for review of the appellate
courts ruling in CA-G.R. SP No. 37283, a decision which is inapplicable to the
aforementioned respondents will similarly not apply to them.
As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H.
Padua, Jr., Evelyn D. Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D.
Cuaresma, Violeta C. Felipe, Percival H. Pangilinan, Corazon M. Cruz and Samuel B.
Bangoy, herein decision shall not apply pursuant to the Orders of the trial court in Civil
Case No. 93-66530, dropping their names from the suit.
Consequently, this Decision is binding only on the remaining respondents, namely: Arlene
V. de Guzman, Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal,
Hubert S. Nazareno, Nancy J. Chavez, Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria
Victoria M. Lacsamana and Merly D. Sta. Ana, as well as the petitioners.
WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the assailed decision
dated May 16, 2000, of the Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the
judgment dated December 19, 1994, of the Regional Trial Court of Manila, Branch 52, in
Civil Case No. 93-66530, ordering petitioners to administer the physicians oath to herein
respondents as well as the resolution dated August 25, 2000, of the appellate court,
denying the petitioners motion for reconsideration, are REVERSED and SET ASIDE; and (2)
the writ of mandamus, issued in Civil Case No. 93-66530, and affirmed by the appellate
court in CA-G.R. SP No. 37283 is NULLIFIED AND SET ASIDE.
G.R. No. 120095 August 5, 1996
JMM PROMOTION AND MANAGEMENT, INC., and KARY INTERNATIONAL,
INC., petitioner,
vs.
HON. COURT OF APPEALS, HON. MA. NIEVES CONFESSOR, then Secretary of the
Department of Labor and Employment, HON. JOSE BRILLANTES, in his capacity
as acting Secretary of the Department of Labor and Employment and HON.
48
FELICISIMO JOSON, in his capacity as Administrator of the Philippine Overseas

Employment Administration, respondents.
KAPUNAN, J.:p
The limits of government regulation under the State's police power are once
again at the vortex of the instant controversy. Assailed is the government's
power to control deployment of female entertainers to Japan by requiring an
Artist Record Book (ARB) as a precondition to the processing by the POEA of any
contract for overseas employment. By contending that the right to overseas
employment is a property right within the meaning of the Constitution,
petitioners vigorously aver that deprivation thereof allegedly through the
onerous requirement of an ARB violates the due process clause and constitutes
an invalid exercise of the police power.
The factual antecedents are undisputed.
Following the much-publicized death of Maricris Sioson in 1991, former President
Corazon C. Aquino ordered a total ban against the deployment of performing
artists to Japan and other foreign destinations. The ban was, however, rescinded
after leaders of the overseas employment industry promised to extend full
support for a program aimed at removing kinks in the system of deployment. In
its place, the government, through the Secretary of Labor and Employment,
subsequently issued Department Order No. 28, creating the Entertainment
Industry Advisory Council (EIAC), which was tasked with issuing guidelines on the
training, testing certification and deployment of performing artists abroad.
Pursuant to the EIAC's recommendations, 1 the Secretary of Labor, on January 6,
1994, issued Department Order No. 3 establishing various procedures and
requirements for screening performing artists under a new system of training,
testing, certification and deployment of the former. Performing artists
successfully hurdling the test, training and certification requirement were to be
issued an Artist's Record Book (ARB), a necessary prerequisite to processing of
any contract of employment by the POEA. Upon request of the industry,
implementation of the process, originally scheduled for April 1, 1994, was moved
to October 1, 1994.
Thereafter, the Department of Labor, following the EIAC's recommendation,
issued a series of orders fine-tuning and implementing the new system.
Prominent among these orders were the following issuances:
1. Department Order No. 3-A, providing for additional guidelines on the
training, testing, certification and deployment of performing artists.
2. Department Order No. 3-B, pertaining to the Artist Record Book
(ARB) requirement, which could be processed only after the artist could
show proof of academic and skills training and has passed the required
tests.
3. Department Order No. 3-E, providing the minimum salary a

performing artist ought to received (not less than US$600.00 for those
bound for Japan) and the authorized deductions therefrom.
4. Department Order No. 3-F, providing for the guidelines on the
issuance and use of the ARB by returning performing artists who,
unlike new artists, shall only undergo a Special Orientation Program
(shorter than the basic program) although they must pass the
academic test.
In Civil Case No. 95-72750, the Federation of Entertainment Talent Managers of
the Philippines (FETMOP), on January 27, 1995 filed a class suit assailing these
department orders, principally contending that said orders 1) violated the
constitutional right to travel; 2) abridged existing contracts for employment; and
3) deprived individual artists of their licenses without due process of law.
FETMOP, likewise, averred that the issuance of the Artist Record Book (ARB) was
discriminatory and illegal and "in gross violation of the constitutional right... to
life liberty and property." Said Federation consequently prayed for the issuance
of a writ of preliminary injunction against the aforestated orders.
On February 2, 1992, JMM Promotion and Management, Inc. Kary International,
Inc., herein petitioners, filed a Motion for Intervention in said civil case, which
was granted by the trial court in an Order dated 15 February, 1995.
However, on February 21, 1995, the trial court issued an Order denying
petitioners' prayed for a writ of preliminary injunction and dismissed the
complaint.
On appeal from the trial court's Order, respondent court, in CA G.R. SP No. 36713
dismissed the same. Tracing the circumstances which led to the issuance of the
ARB requirement and the assailed Department Order, respondent court
concluded that the issuance constituted a valid exercise by the state of the
police power.
We agree.
The latin maxim salus populi est surprema lex embodies the character of the
entire spectrum of public laws aimed at promoting the general welfare of the
people under the State's police power. As an inherent attribute of sovereignty
which virtually "extends to all public needs," 2 this "least limitable" 3 of
governmental powers grants a wide panoply of instruments through which the
state, as parens patriae gives effect to a host of its regulatory powers.
Describing the nature and scope of the police power, Justice Malcolm, in the
early case of Rubi v. Provincial Board of Mindoro 4 wrote:
"The police power of the State," one court has said... is a power
coextensive with self-protection, and is not inaptly termed "the law of
overruling necessity." It may be said to be that inherent and plenary
power in the state which enables it to prohibit all things hurtful to the
comfort, safety and welfare of society." Carried onward by the current
of legislature, the judiciary rarely attempts to dam the onrushing power
49
of legislative discretion, provided the purposes of the law do not go

beyond the great principles that mean security for the public welfare or
do not arbitrarily interfere with the right of the individual. 5
Thus, police power concerns government enactments which precisely interfere
with personal liberty or property in order to promote the general welfare or the
common good. As the assailed Department Order enjoys a presumed validity, it
follows that the burden rests upon petitioners to demonstrate that the said
order, particularly, its ARB requirement, does not enhance the public welfare or
was exercised arbitrarily or unreasonably.
A thorough review of the facts and circumstances leading to the issuance of the
assailed orders compels us to rule that the Artist Record Book requirement and
the questioned Department Order related to its issuance were issued by the
Secretary of Labor pursuant to a valid exercise of the police power.
In 1984, the Philippines emerged as the largest labor sending country in Asia
dwarfing the labor export of countries with mammoth populations such as India
and China. According to the National Statistics Office, this diaspora was
augmented annually by over 450,000 documented and clandestine or illegal
(undocumented) workers who left the country for various destinations abroad,
lured by higher salaries, better work opportunities and sometimes better living
conditions.
Of the hundreds of thousands of workers who left the country for greener
pastures in the last few years, women composed slightly close to half of those
deployed, constituting 47% between 1987-1991, exceeding this proportion
(58%) by the end of 1991, 6 the year former President Aquino instituted the ban
on deployment of performing artists to Japan and other countries as a result of
the gruesome death of Filipino entertainer Maricris Sioson.
It was during the same period that this Court took judicial notice not only of the
trend, but also of the fact that most of our women, a large number employed as
domestic helpers and entertainers, worked under exploitative conditions
"marked by physical and personal abuse." 7 Even then, we noted that "[t]he
sordid tales of maltreatment suffered by migrant Filipina workers, even rape and
various forms of torture, confirmed by testimonies of returning workers"
compelled "urgent government action." 8
Pursuant to the alarming number of reports that a significant number of Filipina
performing artists ended up as prostitutes abroad (many of whom were beaten,
drugged and forced into prostitution), and following the deaths of number of
these women, the government began instituting measures aimed at deploying
only those individuals who met set standards which would qualify them as
legitimate performing artists. In spite of these measures, however, a number of
our countrymen have nonetheless fallen victim to unscrupulous recruiters,
ending up as virtual slaves controlled by foreign crime syndicates and forced
into jobs other than those indicated in their employment contracts. Worse, some
of our women have been forced into prostitution.
Thus, after a number of inadequate and failed accreditation schemes, the
Secretary of Labor issued on August 16, 1993, D.O. No. 28, establishing the
Entertainment Industry Advisory Council (EIAC), the policy advisory body of
DOLE on entertainment industry matters. 9 Acting on the recommendations of

the said body, the Secretary of Labor, on January 6, 1994, issued the assailed
orders. These orders embodied EIAC's Resolution No. 1, which called for
guidelines on screening, testing and accrediting performing overseas Filipino
artists. Significantly, as the respondent court noted, petitioners were duly
represented in the EIAC, 10 which gave the recommendations on which the ARB
and other requirements were based.
Clearly, the welfare of Filipino performing artists, particularly the women was
paramount in the issuance of Department Order No. 3. Short of a total and
absolute ban against the deployment of performing artists to "high risk"
destinations, a measure which would only drive recruitment further
underground, the new scheme at the very least rationalizes the method of
screening performing artists by requiring reasonable educational and artistic
skills from them and limits deployment to only those individuals adequately
prepared for the unpredictable demands of employment as artists abroad. It
cannot be gainsaid that this scheme at least lessens the room for exploitation by
unscrupulous individuals and agencies.
Moreover, here or abroad, selection of performing artists is usually accomplished
by auditions, where those deemed unfit are usually weeded out through a
process which is inherently subjective and vulnerable to bias and differences in
taste. The ARB requirement goes one step further, however, attempting to
minimize the subjectivity of the process by defining the minimum skills required
from entertainers and performing artists. As the Solicitor General observed, this
should be easily met by experienced artists possessing merely basic skills. The
test are aimed at segregating real artists or performers from those passing
themselves off as such, eager to accept any available job and therefore exposing
themselves to possible exploitation.
As to the other provisions of Department Order No. 3 questioned by petitioners,
we see nothing wrong with the requirements for document and booking
confirmation (D.O. 3-C), a minimum salary scale (D.O. 3-E), or the requirement
for registration of returning performers. The requirement for a venue certificate
or other documents evidencing the place and nature or work allows the
government closer monitoring of foreign employers and helps keep our
entertainers away from prostitution fronts and other worksites associated with
unsavory, immoral, illegal or exploitative practices. Parenthetically, none of
these issuances appear to us, by any stretch of the imagination, even remotely
unreasonable or arbitrary. They address a felt need of according greater
protection for an oft-exploited segment of our OCW's. They respond to the
industry's demand for clearer and more practicable rules and guidelines. Many
of these provisions were fleshed out following recommendations by, and after
consultations with, the affected sectors and non-government organizations. On
the whole, they are aimed at enhancing the safety and security of entertainers
and artists bound for Japan and other destinations, without stifling the industry's
concerns for expansion and growth.
In any event, apart from the State's police power, the Constitution itself
mandates government to extend the fullest protection to our overseas workers.
The basic constitutional statement on labor, embodied in Section 18 of Article II
of the Constitution provides:
50
Sec. 18. The State affirms labor as a primary social economic force. It
shall protect the rights of workers and promote their welfare.
More emphatically, the social justice provisions on labor of the 1987 Constitution
in its first paragraph states:
The State shall afford full protection to labor, local and overseas,
organized and unorganized and promote full employment and equality
of employment opportunities for all.
Obviously, protection to labor does not indicate promotion of employment alone.
Under the welfare and social justice provisions of the Constitution, the promotion
of full employment, while desirable, cannot take a backseat to the government's
constitutional duty to provide mechanisms for the protection of our workforce,
local or overseas. As this Court explained in Philippine Association of Service
Exporters (PASEI) v. Drilon, 11in reference to the recurring problems faced by our
overseas workers:
What concerns the Constitution more paramountly is that such an
employment be above all, decent, just, and humane. It is bad enough
that the country has to send its sons and daughters to strange lands
because it cannot satisfy their employment needs at home. Under
these circumstances, the Government is duty-adequate protection,
personally and economically, while away from home.
We now go to petitioners' assertion that the police power cannot, nevertheless,
abridge the right of our performing workers to return to work abroad after having
earlier qualified under the old process, because, having previously been
accredited, their accreditation became a "property right," protected by the due
process clause. We find this contention untenable.
A profession, trade of calling is a property right within the meaning of our
constitutional guarantees. One cannot be deprived of the right to work and right
to make a living because these rights are property rights, the arbitrary and
unwarranted deprivation of which normally constitutes an actionable wrong. 12
Nevertheless, no right is absolute, and the proper regulation of a profession,
calling, business or trade has always been upheld as a legitimate subject of a
valid exercise of the police power by the state particularly when their conduct
affects either the execution of legitimate governmental functions, the
preservation of the State, the public health and welfare and public morals.
According to the maxim, sic utere tuo ut alienum non laedas, it must of course
be within the legitimate range of legislative action to define the mode and
manner in which every one may so use of his own property so as not to pose
injury to himself or others. 13
In any case, where the liberty curtailed affects at most the rights of property, the
permissible scope of regulatory measures is certainly much
wider. 14 To pretend that licensing or accreditation requirements violates the due
process clause is to ignore the settled practice, under the mantle of the police
power, of regulating entry to the practice of various trades or professions.
Professionals leaving for abroad are required to pass rigid written and practical
exams before they are deemed fit to practice their trade. Seamen are required
to take tests determining their seamanship. Locally, the Professional Regulation
Commission has began to require previously licensed doctors and other
professionals to furnish documentary proof that they has either re-trained or had
undertaken continuing education courses as a requirement for renewal of their
licenses. It is not claimed that these requirements pose an unwarranted
deprivation of a property right under the due process clause. So long as
professionals and other workers meet reasonable regulatory standards no such
deprivation exists.
Finally, it is a futile gesture on the part of petitioners to invoke the nonimpairment clause of the Constitution to support their argument that the
government cannot enact the assailed regulatory measures because they
abridge the freedom to contract. In Philippine Association of Service Exporters,
Inc. vs. Drilon, we held that "[t]he non-impairment clause of the Constitution...
must yield to the loftier purposes targeted by the government." 15 Equally
important, into every contract is read provisions of existing law, and always, a
reservation of the police power for so long as the agreement deals with a subject
impressed with the public welfare.
A last point. Petitioners suggest that the singling out of entertainers and
performing artists under the assailed department orders constitutes class
legislation which violates the equal protection clause of the Constitution. We do
not agree.
The equal protection clause is directed principally against undue favor and
individual or class privilege. It is not intended to prohibit legislation which is
limited to the object to which it is directed or by the territory in which it is to
operate. It does not require absolute equality, but merely that all persons be
treated alike under like conditions both as to privileges conferred and liabilities
imposed. 16 We have held, time and again, that the equal protection clause of
the Constitution does not forbid classification for so long as such classification is
based on real and substantial differences having a reasonable relation to the
subject of the particular legislation. 17 If classification is germane to the purpose
of the law, concerns all members of the class, and applies equally to present and
future conditions, the classification does not violate the equal protection
guarantee.
In the case at bar, the challenged Department Order clearly applies to all
performing artists and entertainers destined for jobs abroad. These orders, we
stressed hereinfore, further the Constitutional mandate requiring government to
protect our workforce, particularly those who may be prone to abuse and
exploitation as they are beyond the physical reach of government regulatory
agencies. The tragic incidents must somehow stop, but short of absolutely
curtailing the right of these performers and entertainers to work abroad, the
assailed measures enable our government to assume a measure of control.
WHEREFORE, finding no reversible error in the decision sought to be reviewed,
petition is hereby DENIED.
G.R. No. L-42571-72 July 25, 1983
51
VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ,

TERESITA CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE
VILLANUEVA, HONORATO BUENAVENTURA, RUBEN DE CASTRO, VICENTE ROXAS,
RICARDO DAMIAN, DOMDINO ROMDINA, ANGELINA OBLIGACION, CONRADO
GREGORIO, TEODORO REYES, LYDIA ATRACTIVO, NAPOLEON MENDOZA,
PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA DURAN, SOCORRO
BERNARDEZ, and PEDRO GABRIEL, petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor,
MARIO MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF
BOCAUE, BULACAN, respondents.
Federico N. Alday for petitioners.
thenceforth, the operation of these establishments within the jurisdiction of the

municipality shall be illegal. Section 5.Penalty in case of violation. Violation of any of
the provisions of this Ordinance shall be punishable by imprisonment not exceeding three
(3) months or a fine not exceeding P200.00 or both at the discretion of the Court. If the
offense is committed by a juridical entity, the person charged with the management
and/or operation thereof shall be liable for the penalty provided herein. Section 6.
Separability Clause. If, for any reason, any section or provision of this Ordinance is
held unconstitutional or invalid, no other section or provision hereof shall be affected
thereby. Section 7. Repealing Clause. All ordinance, resolutions, circulars, memoranda
or parts thereof that are inconsistent with the provisions of this Ordinance are hereby
repealed. Section 8. Effectivity. This Ordinance shall take effect immediately upon its
approval; provided, however, that operators of night clubs, cabarets and dance halls now
in operation including professional hostesses, hospitality girls and professional dancers
are given a period of thirty days from the approval hereof within which to wind up their
businesses and comply with the provisions of this Ordinance." 4
Dakila F. Castro for respondents.

On November 5, 1975, two cases for prohibition with preliminary injunction were filed with
the Court of First Instance of Bulacan. 5 The grounds alleged follow:
FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or not a municipal
corporation, Bocaue, Bulacan, represented by respondents, 1 can, prohibit the exercise of
a lawful trade, the operation of night clubs, and the pursuit of a lawful occupation, such
clubs employing hostesses. It is contended that the ordinance assailed as invalid is tainted
with nullity, the municipality being devoid of power to prohibit a lawful business,
occupation or calling, petitioners at the same time alleging that their rights to due process
and equal protection of the laws were violated as the licenses previously given to them
was in effect withdrawn without judicial hearing. 2
The assailed ordinance 3 is worded as follows: "Section 1. Title of Ordinance. This
Ordinance shall be known and may be cited as the [Prohibition and Closure Ordinance] of
Bocaue, Bulacan. Section 2. Definitions of Terms (a) 'Night Club' shall include any
place or establishment selling to the public food or drinks where customers are allowed to
dance. (b) 'Cabaret' or 'Dance Hall' shall include any place or establishment where
dancing is permitted to the public and where professional hostesses or hospitality girls
and professional dancers are employed. (c) 'Professional hostesses' or 'hospitality girls'
shall include any woman employed by any of the establishments herein defined to
entertain guests and customers at their table or to dance with them. (d) 'Professional
dancer' shall include any woman who dances at any of the establishments herein defined
for a fee or remuneration paid directly or indirectly by the operator or by the persons she
dances with. (e) 'Operator' shall include the owner, manager, administrator or any person
who operates and is responsible for the operation of any night club, cabaret or dance hall.
Section 3. Prohibition in the Issuance and Renewal of Licenses, Permits. Being the
principal cause in the decadence of morality and because of their other adverse effects on
this community as explained above, no operator of night clubs, cabarets or dance halls
shall henceforth be issued permits/licenses to operate within the jurisdiction of the
municipality and no license/permit shall be issued to any professional hostess, hospitality
girls and professional dancer for employment in any of the aforementioned
establishments. The prohibition in the issuance of licenses/permits to said persons and
operators of said establishments shall include prohibition in the renewal thereof. Section
4. Revocation of Permits and Licenses. The licenses and permits issued to operators of
night clubs, cabarets or dance halls which are now in operation including permits issued to
professional hostesses, hospitality girls and professional dancers are hereby revoked upon
the expiration of the thirty-day period given them as provided in Section 8 hereof and
1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful
business, occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal
protection of the law, as the license previously given to petitioners was in effect
withdrawn without judicial hearing. 3. That under Presidential Decree No. 189, as
amended, by Presidential Decree No. 259, the power to license and regulate touristoriented businesses including night clubs, has been transferred to the Department of
Tourism." 6 The cases were assigned to respondent Judge, now Associate Justice Paras of
the Intermediate Appellate Court, who issued a restraining order on November 7, 1975.
The answers were thereafter filed. It was therein alleged: " 1. That the Municipal Council is
authorized by law not only to regulate but to prohibit the establishment, maintenance and
operation of night clubs invoking Section 2243 of the RAC, CA 601, Republic Acts Nos.
938, 978 and 1224. 2. The Ordinance No. 84 is not violative of petitioners' right to due
process and the equal protection of the law, since property rights are subordinate to
public interests. 3. That Presidential Decree No. 189, as amended, did not deprive
Municipal Councils of their jurisdiction to regulate or prohibit night clubs." 7There was the
admission of the following facts as having been established: "l. That petitioners Vicente de
la Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses by the
Municipal Mayor of Bocaue-petitioner Jose Torres III, since 1958; petitioner Vicente de la
Cruz, since 1960; petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since
1972; 2. That petitioners had invested large sums of money in their businesses; 3. That
the night clubs are well-lighted and have no partitions, the tables being near each other;
4. That the petitioners owners/operators of these clubs do not allow the hospitality girls
therein to engage in immoral acts and to go out with customers; 5. That these hospitality
girls are made to go through periodic medical check-ups and not one of them is suffering
from any venereal disease and that those who fail to submit to a medical check-up or
those who are found to be infected with venereal disease are not allowed to work; 6. That
the crime rate there is better than in other parts of Bocaue or in other towns of
Bulacan." 8 Then came on January 15, 1976 the decision upholding the constitutionality
and validity of Ordinance No. 84 and dismissing the cases. Hence this petition for
certiorari by way of appeal.
In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its
rationale is set forth in the opening paragraph thus: "Those who lust cannot last. This in
essence is why the Municipality of Bocaue, Province of Bulacan, stigmatized as it has been
52
by innuendos of sexual titillation and fearful of what the awesome future holds for it, had
no alternative except to order thru its legislative machinery, and even at the risk of partial
economic dislocation, the closure of its night clubs and/or cabarets. This in essence is also
why this Court, obedient to the mandates of good government, and cognizant of the
categorical imperatives of the current legal and social revolution, hereby [upholds] in the
name of police power the validity and constitutionality of Ordinance No. 84, Series of
1975, of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore
issued in these two cases are therefore hereby rifted, effective the first day of February,
1976, the purpose of the grace period being to enable the petitioners herein to apply to
the proper appellate tribunals for any contemplated redress." 9 This Court is, however,
unable to agree with such a conclusion and for reasons herein set forth, holds that
reliance on the police power is insufficient to justify the enactment of the assailed
ordinance. It must be declared null and void.
1. Police power is granted to municipal corporations in general terms as follows: "General
power of council to enact ordinances and make regulations. - The municipal council shall
enact such ordinances and make such regulations, not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred upon it by
law and such as shall seem necessary and proper to provide for the health and safety,
promote the prosperity, improve the morals, peace, good order, comfort, and convenience
of the municipality and the inhabitants thereof, and for the protection of property
therein." 10 It is practically a reproduction of the former Section 39 of Municipal Code. 11 An
ordinance enacted by virtue thereof, according to Justice Moreland, speaking for the Court
in the leading case of United States v. Abendan 12 "is valid, unless it contravenes the
fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless
it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in
derogation of common right. Where the power to legislate upon a given subject, and the
mode of its exercise and the details of such legislation are not prescribed, the ordinance
passed pursuant thereto must be a reasonable exercise of the power, or it will be
pronounced invalid." 13 In another leading case, United States v.
Salaveria, 14the ponente this time being Justice Malcolm, where the present Administrative
Code provision was applied, it was stated by this Court: "The general welfare clause has
two branches: One branch attaches itself to the main trunk of municipal authority, and
relates to such ordinances and regulations as may be necessary to carry into effect and
discharge the powers and duties conferred upon the municipal council by law. With this
class we are not here directly concerned. The second branch of the clause is much more
independent of the specific functions of the council which are enumerated by law. It
authorizes such ordinances as shall seem necessary and proper to provide for the health
and safety, promote the prosperity, improve the morals, peace, good order, comfort, and
convenience of the municipality and the inhabitants thereof, and for the protection of
property therein.' It is a general rule that ordinances passed by virtue of the implied
power found in the general welfare clause must be reasonable, consonant with the
general powersand purposes of the corporation, and not inconsistent with the laws or
policy of the State." 15 If night clubs were merely then regulated and not prohibited,
certainly the assailed ordinance would pass the test of validity. In the two leading cases
above set forth, this Court had stressed reasonableness, consonant with the general
powers and purposes of municipal corporations, as well as consistency with the laws or
policy of the State. It cannot be said that such a sweeping exercise of a lawmaking power
by Bocaue could qualify under the term reasonable. The objective of fostering public
morals, a worthy and desirable end can be attained by a measure that does not
encompass too wide a field. Certainly the ordinance on its face is characterized by
overbreadth. The purpose sought to be achieved could have been attained by reasonable
restrictions rather than by an absolute prohibition. The admonition in Salaveria should be
heeded: "The Judiciary should not lightly set aside legislative action when there is not a
clear invasion of personal or property rights under the guise of police regulation." 16 It is
clear that in the guise of a police regulation, there was in this instance a clear invasion of
personal or property rights, personal in the case of those individuals desirous of
patronizing those night clubs and property in terms of the investments made and salaries
to be earned by those therein employed.
2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was
originally enacted on June 20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY
BOARDS AND COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT, MAINTENANCE
AND OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE
TERRITORIAL JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The municipal
or city board or council of each chartered city shall have the power to regulate by
ordinance the establishment, maintenance and operation of night clubs, cabarets, dancing
schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools, and other similar
places of amusement within its territorial jurisdiction: ... " 19 Then on May 21, 1954, the
first section was amended to include not merely "the power to regulate, but likewise
"Prohibit ... " 20 The title, however, remained the same. It is worded exactly as Republic Act
No. 938. It is to be admitted that as thus amended, if only the above portion of the Act
were considered, a municipal council may go as far as to prohibit the operation of night
clubs. If that were all, then the appealed decision is not devoid of support in law. That is
not all, however. The title was not in any way altered. It was not changed one whit. The
exact wording was followed. The power granted remains that of regulation,
not prohibition. There is thus support for the view advanced by petitioners that to
construe Republic Act No. 938 as allowing the prohibition of the operation of night clubs
would give rise to a constitutional question. The Constitution mandates: "Every bill shall
embrace only one subject which shall be expressed in the title thereof. " 21 Since there is
no dispute as the title limits the power to regulating, not prohibiting, it would result in the
statute being invalid if, as was done by the Municipality of Bocaue, the operation of a
night club was prohibited. There is a wide gap between the exercise of a regulatory power
"to provide for the health and safety, promote the prosperity, improve the morals, 22 in the
language of the Administrative Code, such competence extending to all "the great public
needs, 23 to quote from Holmes, and to interdict any calling, occupation, or enterprise. In
accordance with the well-settled principle of constitutional construction that between two
possible interpretations by one of which it will be free from constitutional infirmity and by
the other tainted by such grave defect, the former is to be preferred. A construction that
would save rather than one that would affix the seal of doom certainly commends itself.
We have done so before We do so again.24
3. There is reinforcement to the conclusion reached by virtue of a specific provision of the
recently-enacted Local Government Code. 25 The general welfare clause, a reiteration of
the Administrative Code provision, is set forth in the first paragraph of Section 149
defining the powers and duties of the sangguniang bayan. It read as follows: "(a) Enact
such ordinances and issue such regulations as may be necessary to carry out and
discharge the responsibilities conferred upon it by law, and such as shall be necessary and
proper to provide for the health, safety, comfort and convenience, maintain peace and
order, improve public morals, promote the prosperity and general welfare of the
municipality and the inhabitants thereof, and insure the protection of property
therein; ..." 26 There are in addition provisions that may have a bearing on the question
now before this Court. Thus the sangguniang bayan shall "(rr) Regulate cafes, restaurants,
beer-houses, hotels, motels, inns, pension houses and lodging houses, except travel
agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist
inns of international standards which shall remain under the licensing and regulatory
power of the Ministry of Tourism which shall exercise such authority without infringing on
the taxing or regulatory powers of the municipality; (ss) Regulate public dancing schools,
public dance halls, and sauna baths or massage parlors; (tt) Regulate the establishment
and operation of billiard pools, theatrical performances, circuses and other forms of
entertainment; ..." 27 It is clear that municipal corporations cannot prohibit the operation
of night clubs. They may be regulated, but not prevented from carrying on their business.
It would be, therefore, an exercise in futility if the decision under review were sustained.
53
All that petitioners would have to do is to apply once more for licenses to operate night
clubs. A refusal to grant licenses, because no such businesses could legally open, would
be subject to judicial correction. That is to comply with the legislative will to allow the
operation and continued existence of night clubs subject to appropriate regulations. In the
meanwhile, to compel petitioners to close their establishments, the necessary result of an
affirmance, would amount to no more than a temporary termination of their business.
During such time, their employees would undergo a period of deprivation. Certainly, if
such an undesirable outcome can be avoided, it should be. The law should not be
susceptible to the reproach that it displays less than sympathetic concern for the plight of
those who, under a mistaken appreciation of a municipal power, were thus left without
employment. Such a deplorable consequence is to be avoided. If it were not thus, then the
element of arbitrariness enters the picture. That is to pay less, very much less, than full
deference to the due process clause with its mandate of fairness and reasonableness.
4. The conclusion reached by this Court is not to be interpreted as a retreat from its
resolute stand sustaining police power legislation to promote public morals. The
commitment to such an Ideal forbids such a backward step. Legislation of that character is
deserving of the fullest sympathy from the judiciary. Accordingly, the judiciary has not
been hesitant to lend the weight of its support to measures that can be characterized as
falling within that aspect of the police power. Reference is made by respondents
to Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila. 28 There is a misapprehension as to what was decided by this Court. That was a
regulatory measure. Necessarily, there was no valid objection on due process or equal
protection grounds. It did not prohibit motels. It merely regulated the mode in which it
may conduct business in order precisely to put an end to practices which could encourage
vice and immorality. This is an entirely different case. What was involved is a measure not
embraced within the regulatory power but an exercise of an assumed power to prohibit.
Moreover, while it was pointed out in the aforesaid Ermita-Malate Hotel and Motel
Operators Association, Inc. decision that there must be a factual foundation of invalidity, it
was likewise made clear that there is no need to satisfy such a requirement if a statute
were void on its face. That it certainly is if the power to enact such ordinance is at the
most dubious and under the present Local Government Code non-existent.
WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated
January 15, 1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the
Municipality of Bocaue is declared void and unconstitutional. The temporary restraining
order issued by this Court is hereby made permanent. No costs.
54

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POLITICAL REVIEW: VI.

FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

G.R. No. 152642

November 13, 2012

HON. PATRICIA A. STO.TOMAS, ROSALINDA BALDOZ and LUCITA

G. Cuaresma), WHITE FALCON SERVICES, INC., and JAIME ORTIZ (President of

G.R. Nos. 182978-79

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

whether committed by any person, whether a non-licensee, non-holder, licensee or holder

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

Page 403 U. S. 717

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

Page 403 U. S. 721

Section 798, relating to cryptography, applies to whoever: "communicates, furnishes,

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

national defense and international affairs may lie in an enlightened citizenry -- in an

Page 403 U. S. 728

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

Page 403 U. S. 732

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

Page 403 U. S. 739

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

Page 403 U. S. 742

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

Sec. 2. Comelec Space. The Commission shall procure free print

Page 403 U. S. 763

"Comelec Space" shall also be used by the Commission for

G.R. No. L-119694 May 22, 1995

Sec. 3. Uses of Comelec Space. "Comelec Space" shall be

Sec. 4. Allocation of Comelec Space. (a) "Comelec Space" shall also

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

Sec. 8. Undue Reference to Candidates/Political Parties in Newspapers.

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

2. Section 8 of Res. No. 2772

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

respect of candidates, their qualifications, and programs and so forth,

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

2. To the extent it pertains to Section 8 of Resolution No. 2772, the Petition

G.R. No. L-75697 June 18, 1987

1. WHEREAS, the proliferation and unregulated circulation of

2. WHEREAS, videogram(s) establishments collectively earn around

Nelson Y. Ng for petitioner.

3. WHEREAS, the unregulated activities of videogram establishments

4. "WHEREAS, in order to ensure national economic recovery, it is

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

xxx xxx xxx

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

POLITICAL REVIEW: VI. FUNDAMENTAL POWERS OF THE STATE (FULL TEXT)

not allowable under the Constitution if on a matter left to the discretion

ORTIGAS & CO. LTD., petitioner,

11. No single-family residential building shall be erecteduntil the building