ADMIN (3RD SET)

G.R. No. L-23004

It is not farfetched to assert as petitioner does 2 that for all practical purposes, the
Commission's order or resolution would make it impossible for the Makati Stock
Exchange to operate. So, its "permission" amounted to a "prohibition."
June 30, 1965

MAKATI STOCK EXCHANGE, INC., petitioner,

vs.
SECURITIES AND EXCHANGE COMMISSION and MANILA STOCK
EXCHANGE, respondents.
Hermenegildo B. Reyes for petitioner.
Office of the Solicitor General for respondent Securities and Exchange Commission.
Norberto J. Quisumbing and Emma Quisumbing-Fernando for respondent Manila
Stock Exchange.
BENGZON, C.J.:
This is a review of the resolution of the Securities and Exchange Commission which
would deny the Makati Stock Exchange, Inc., permission to operate a stock
exchange unless it agreed not to list for trading on its board, securities already listed
in the Manila Stock Exchange.
Objecting to the requirement, Makati Stock Exchange, Inc. contends that the
Commission has no power to impose it and that, anyway, it is illegal, discriminatory
and unjust.
Under the law, no stock exchange may do business in the Philippines unless it is
previously registered with the Commission by filing a statement containing the
information described in Sec. 17 of the Securities Act (Commonwealth Act 83, as
amended).
It is assumed that the Commission may permit registration if the section is complied
with; if not, it may refuse. And there is now no question that the section has been
complied with, or would be complied with, except that the Makati Stock Exchange,
upon challenging this particular requirement of the Commission (rule against double
listing) may be deemed to have shown inability or refusal to abide by its rules, and
thereby to have given ground for denying registration. [Sec. 17 (a) (1) and (d)].
Such rule provides: "... nor shall a security already listed in any securities exchange
be listed anew in any other securities exchange ... ."
The objection of Makati Stock Exchange, Inc., to this rule is understandable. There is
actually only one securities exchange The Manila Stock Exchange that has
been operating alone for the past 25 years; and all or presumably all available
or worthwhile securities for trading in the market are now listed there. In effect, the
Commission permits the Makati Stock Exchange, Inc., to deal only with
other securities. Which is tantamount to permitting a store to open provided it sells
only those goods not sold in other stores. And if there's only one existing store, 1 the
result is a monopoly.

Apparently, the Commission acted "in the public interest." 3 Hence, it is pertinent to
inquire whether the Commission may "in the public interest" prohibit (or make
impossible) the establishment of another stock exchange (besides the Manila Stock
Exchange), on the ground that the operation of two or more exchanges adversely
affects the public interest.
At first glance, the answer should be in the negative, because the law itself
contemplated, and, therefore, tacitly permitted or tolerated at least, the operation of
two or more exchanges.
Wherever two or more exchanges exist, the Commission, by order, shall
require and enforce uniformity of trading regulations in and/or between said
exchanges. [Emphasis Ours] (Sec. 28b-13, Securities Act.)
In fact, as admitted by respondents, there were five stock exchanges in Manila,
before the Pacific War (p. 10, brief), when the Securities Act was approved or
amended. (Respondent Commission even admits that dual listing was practiced
then.) So if the existence of more than one exchange were contrary to public
interest, it is strange that the Congress having from time to time enacted legislation
amending the Securities Act, 4 has not barred multiplicity of exchanges.
Forgetting for the moment the monopolistic aspect of the Commission's resolution,
let us examine the authority of the Commission to promulgate and implement the
rule in question.
It is fundamental that an administrative officer has only such powers as are
expressly granted to him by the statute, and those necessarily implied in the
exercise thereof.
In its brief and its resolution now subject to review, the Commission cites no
provision expressly supporting its rule. Nevertheless, it suggests that the power is
"necessary for the execution of the functions vested in it"; but it makes no
explanation, perhaps relying on the reasons advanced in support of its position that
trading of the same securities in two or more stock exchanges, fails to give
protection to the investors, besides contravening public interest. (Of this, we shall
treat later) .
On the legality of its rule, the Commission's argument is that: (a) it was approved by
the Department Head before the War; and (b) it is not in conflict with the
provisions of the Securities Act. In our opinion, the approval of the Department, 5 by
itself, adds no weight in a judicial litigation; and the test is not whether the Act
forbids the Commission from imposing a prohibition, but whether it empowers the
Commission to prohibit. No specific portion of the statute has been cited to uphold
this power. It is not found in sec. 28 (of the Securities Act), which is entitled "Powers
(of the Commission) with Respect to Exchanges and Securities." 6
According to many court precedents, the general power to "regulate" which the
Commission has (Sec. 33) does not imply authority to prohibit." 7

The Manila Stock Exchange, obviously the beneficiary of the disputed rule, contends
that the power may be inferred from the express power of the Commission to
suspend trading in a security, under said sec. 28 which reads partly:
And if in its opinion, the public interest so requires, summarily to suspend
trading in any registered security on any securities exchange ... . (Sec.
28[3], Securities Act.)
However, the Commission has not acted nor claimed to have acted in
pursuance of such authority, for the simple reason that suspension under it may
only be for ten days. Indeed, this section, if applicable, precisely argues against the
position of the Commission because the "suspension," if it is, and as applied to
Makati Stock Exchange, continues for an indefinite period, if not forever; whereas
this Section 28 authorizes suspension for ten days only. Besides, the suspension of
trading in the security should not be on one exchange only, but on allexchanges;
bearing in mind that suspension should be ordered "for the protection of investors"
(first par., sec. 28) in all exchanges, naturally, and if "the public interest so requires"
[sec. 28(3)].
This brings up the Commission's principal conclusions underlying its determination
viz.: (a) that the establishment of another exchange in the environs of Manila would
be inimical to the public interest; and (b) that double or multiple listing of securities
should be prohibited for the "protection of the investors."
(a) Public Interest Having already adverted to this aspect of the matter, and the
emerging monopoly of the Manila Stock Exchange, we may, at this juncture,
emphasize that by restricting free competition in the marketing of stocks, and
depriving the public of the advantages thereof the Commission all but permits what
the law punishesas monopolies as "crimes against public interest." 8
"A stock exchange is essentially monopolistic," the Commission states in its
resolution (p. 14-a, Appendix, Brief for Petitioner). This reveals the basic foundation
of the Commission's process of reasoning. And yet, a few pages afterwards, it recalls
the benefits to be derived "from the existence of two or more exchanges," and the
desirability of "a healthy and fair competition in the securities market," even as it
expresses the belief that "a fair field of competition among stock exchanges should
be encouraged only to resolve, paradoxically enough, that Manila Stock Exchange
shall, in effect, continue to be the only stock exchange in Manila or in the
Philippines.
"Double listing of a security," explains the Commission, "divides the sellers and the
buyers, thus destroying the essence of a stock exchange as a two-way auction
market for the securities, where all the buyers and sellers in one geographical area
converge in one defined place, and the bidders compete with each other to purchase
the security at the lowest possible price and those seeking to sell it compete with
each other to get the highest price therefor. In this sense, a stock exchange is
essentially monopolistic."
Inconclusive premises, for sure. For it is debatable whether the buyer of stock may
get the lowest price where all the sellers assemble in only one place. The price
there, in one sale, will tend to fix the price for the succeeding, sales, and he has no
chance to get a lower price except at another stock exchange. Therefore, the
arrangement desired by the Commission may, at most, be beneficial to sellers of
stock not to buyers although what applies to buyers should obtain equally as to

sellers (looking for higher prices). Besides, there is the brokerage fee which must be
considered. Not to mention the personality of the broker.
(b) Protection of investors. At any rate, supposing the arrangement contemplated
is beneficial to investors (as the Commission says), it is to be doubted whether it is
"necessary" for their "protection" within the purview of the Securities Act. As the
purpose of the Act is to give adequate and effective protection to the investing
publicagainst fraudulent representations, or false promises and the imposition of
worthless ventures, 9 it is hard to see how the proposed concentration of the market
has a necessary bearing to the prevention of deceptive devices or unlawful
practices. For it is not mere semantics to declare that acts for the protection of
investors are necessarily beneficial to them; but not everything beneficial to them is
necessary for their protection.
And yet, the Commission realizes that if there were two or more exchanges "the
same security may sell for more in one exchange and sell for less in the other.
Variance in price of the same security would be the rule ... ." Needless to add, the
brokerage rates will also differ.
This, precisely, strengthens the objection to the Commission's ruling. Such difference
in prices and rates gives the buyer of shares alternative options, with the
opportunity to invest at lower expense; and the seller, to dispose at higher prices.
Consequently, for the investors' benefit (protection is not the word), quality of
listing 10 should be permitted, nay, encouraged, and other exchanges allowed to
operate. The circumstance that some people "made a lot of money due to the
difference in prices of securities traded in the stock exchanges of Manila before the
war" as the Commission noted, furnishes no sufficient reason to let one exchange
corner the market. If there was undue manipulation or unfair advantage in exchange
trading the Commission should have other means to correct the specific abuses.
Granted that, as the Commission observes, "what the country needs is not another"
market for securities already listed on the Manila Stock Exchange, but "one that
would focus its attention and energies on the listing of new securities and thus
effectively help in raising capital sorely needed by our ... unlisted industries and
enterprises."
Nonetheless, we discover no legal authority for it to shore up (and stifle) free
enterprise and individual liberty along channels leading to that economic
desideratum. 11
The Legislature has specified the conditions under which a stock exchange may
legally obtain a permit (sec. 17, Securities Act); it is not for the Commission to
impose others. If the existence of two competing exchanges jeopardizes public
interest which is doubtful let the Congress speak. 12 Undoubtedly, the opinion
and recommendation of the Commission will be given weight by the Legislature, in
judging whether or not to restrict individual enterprise and business opportunities.
But until otherwise directed by law, the operation of exchanges should not be so
regulated as practically to create a monopoly by preventing the establishment of
other stock exchanges and thereby contravening:
(a) the organizers' (Makati's) Constitutional right to equality before the law;

(b) their guaranteed civil liberty to pursue any lawful employment or trade;
and
(c) the investor's right to choose where to buy or to sell, and his privilege to
select the brokers in his employment. 13
And no extended elucidation is needed to conclude that for a licensing officer to
deny license solely on the basis of what he believes is best for the economy of the
country may amount to regimentation or, in this instance, the exercise of
undelegated legislative powers and discretion.
Thus, it has been held that where the licensing statute does not expressly or
impliedly authorize the officer in charge, he may not refuse to grant a license simply
on the ground that a sufficient number of licenses to serve the needs of the public
have already been issued. (53 C.J.S. p. 636.)
Concerning res judicata. Calling attention to the Commission's order of May 27,
1963, which Makati Stock did not appeal, the Manila Stock Exchange pleads the
doctrine of res judicata. 14 (The order now reviewed is dated May 7, 1964.)
It appears that when Makati Stock Exchange, Inc. presented its articles of
incorporation to the Commission, the latter, after making some inquiries, issued on
May 27, 1963, an order reading as follows.

Indeed, there can be no valid objection to the discussion of this issue of double
listing now, 16 because even if the Makati Stock Exchange, Inc. may be held to have
accepted the permission to operate with the condition against double listing (for
having failed to appeal the order of May 27, 1963), still it was not precluded from
afterwards contesting 17 the validity of such condition or rule:
(1) An agreement (which shall not be construed as a waiver of any constitutional
right or any right to contest the validity of any rule or regulation) to comply and to
enforce so far as is within its powers, compliance by its members, with the
provisions of this Act, and any amendment thereto, and any rule or regulation made
or to be made thereunder. (See. 17-a-1, Securities Act [Emphasis Ours].)
Surely, this petition for review has suitably been coursed. And making reasonable
allowances for the presumption of regularity and validity of administrative action, we
feel constrained to reach the conclusion that the respondent Commission possesses
no power to impose the condition of the rule, which, additionally, results in
discrimination and violation of constitutional rights.
ACCORDINGLY, the license of the petition to operate a stock exchange is approved
without such condition. Costs shall be paid by the Manila Stock Exchange. So
ordered.

Let the certificate of incorporation of the MAKATI STOCK EXCHANGE be

issued, and if the organizers thereof are willing to abide by the foregoing
conditions, they may file the proper application for the registration and
licensing of the said Exchange.
In that order, the Commission advanced the opinion that "it would permit the
establishment and operation of the proposed Makati Stock Exchange, provided ... it
shall not list for trading on its board, securities already listed in the Manila Stock
Exchange ... ."
Admittedly, Makati Stock Exchange, Inc. has not appealed from that order of May 27,
1963. Now, Manila Stock insists on res judicata.
Why should Makati have appealed? It got the certificate of incorporation which it
wanted. The condition or proviso mentioned would only apply if and when
it subsequently filed the application for registration as stock exchange. It had not
yet applied. It was not the time to question the condition; 15 Makati was still
exploring the convenience of soliciting the permit to operate subject to that
condition. And it could have logically thought that, since the condition did not affect
its articles of incorporation, it should not appeal the order (of May 27, 1963) which
after all, granted the certificate of incorporation (corporate existence) it wanted at
that time.
And when the Makati Stock Exchange finally found that it could not successfully
operate with the condition attached, it took the issue by the horns, and expressing
its desire for registration and license, it requested that the condition (against double
listing) be dispensed with. The order of the Commission denying, such request is
dated May 7, 1964, and is now under, review.

G.R. No. 85439 January 13, 1992

KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA NG BAGONG
PAMILIHANG BAYAN NG MUNTINLUPA, INC. (KBMBPM), TERESITA A.
FAJARDO, NADYESDA B. PONSONES, MA. FE V. BOMBASE, LOIDA D. LUCES,
MARIO S. FRANCISCO, AMADO V. MANUEL and ROLANDO G. GARCIA,
incumbent members of the Board, AMADO G. PEREZ and MA. FE V.
BOMBASE, incumbent General Manager and Secretary-Treasurer,
respectively, petitioners,
vs.
HON. CARLOS G. DOMINGUEZ, Secretary of Agriculture, Regional Director
of Region IV of the Department of Agriculture ROGELIO P. MADRIAGA,
RECTO CORONADO and Municipal Mayor IGNACIO R. BUNYE, both in his
capacity as Municipal Mayor of Muntinlupa, Metro Manila and as Presiding
Officer of Sangguniang Bayan ng Muntinglupa, and JOHN DOES, respondents.
G.R. No. 91927 January 13, 1992
IGNACIO R. BUNYE, JAIME R. FRESNEDI, CARLOS G. TENSUAN, VICTOR E.
AGUINALDO, ALEJANDRO I. MARTINEZ, EPIFANIO A. ESPELETA, REY E.
BULAY, LUCIO B. CONSTANTINO, ROMAN E. NIEFES, NEMESIO O. MOZO,
ROGER SMITH, RUFINO B. JOAQUIN, NOLASCO I. DIAZ, RUFINO IBE and

NESTOR SANTOS,petitioners,
vs.
THE SANDIGANBAYAN, THE OMBUDSMAN and ROGER C. BERBANO, Special
Prosecutor III, respondents.
Jose O. Villanueva and Roberto B. Romanillos for petitioners in G.R. No. 85439.
Alampay & Manhit Law Offices for petitioners in G.R. No. 91927.

DAVIDE, JR., J.:

These cases have been consolidated because they are closely linked with each other
as to factual antecedents and issues.
The first case, G.R. No. 85439 (hereinafter referred to as the Kilusang Bayan case),
questions the validity of the order of 28 October 1988 of then Secretary of
Agriculture Hon. Carlos G. Dominguez which ordered: (1) the take-over by the
Department of Agriculture of the management of the petitioner Kilusang Bayan sa
Paglilingkod Ng Mga Magtitinda ng Bagong Pamilihang Bayan ng Muntilupa, Inc.
(KBMBPM) pursuant to the Department's regulatory and supervisory powers under
Section 8 of P.D. No. 175, as amended, and Section 4 of Executive Order No. 13, (2)
the creation of a Management Committee which shall assume the management of
KBMBPM upon receipt of the order, (3) the disbandment of the Board of Directors,
and (4) the turn over of all assets, properties and records of the KBMBPM the
Management Committee.
The second case. G.R. No. 91927 (hereinafter referred to as the Bunye case), seeks
the nullification of the Resolution of 4 January 1990 of the Sandiganbayan admitting
the Amended Information against petitioners in Criminal Case No. 13966 and
denying their motion to order or direct preliminary investigation, and its Resolution
of 1 February 1990 denying the motion to reconsider the former.
The procedural and factual antecedents are not disputed.
On 2 September 1985, the Municipal Government of Muntinlupa (hereinafter,
Municipality), Metro Manila, thru its then Mayor Santiago Carlos, Jr., entered into a
contract with the KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA SA
BAGONG PAMILIHANG BAYAN NG MUNTINLUPA, INC. (KBMBPM) represented by its
General Manager, Amado Perez, for the latter's management and operation of the
new Muntinlupa public market. The contract provides for a twenty-five (25) year
term commencing on 2 September 1985, renewable for a like period, unless sooner
terminated and/or rescinded by mutual agreement of the parties, at a monthly
consideration of Thirty-Five Thousand Pesos (P35,000) to be paid by the KBMBPM
within the first five (5) days of each month which shall, however, be increased by
ten percent (10%) each year during the first five (5) years only. 1
The KBMBPM is a service cooperative organized by and composed of vendors
occupying the New Muntinlupa Public Market in Alabang, Muntinlupa, Metro Manila
pursuant to Presidential Decree No. 175 and Letter of Implementation No. 23; its
articles of incorporation and by-laws were registered with the then Office of the

Bureau of Cooperatives Development (thereafter the Bureau of Agricultural

Cooperatives Development or BACOD and now the Cooperative Development
Authority). 2
Following his assumption into office as the new mayor succeeding Santiago Carlos,
Jr., petitioner Ignacio Bunye, claiming to be particularly scandalized by the "virtual
50-year term of the agreement, contrary to the provision of Section 143, paragraph
3 of Batas Pambansa Blg. 337," and the "patently inequitable rental," directed a
review of the aforesaid contract. 3 He sought opinions from both the Commission on
Audit and the Metro Manila Commission (MMC) on the validity of the instrument. In
separate letters, these agencies urged that appropriate legal steps be taken towards
its rescission. The letter of Hon. Elfren Cruz of the MMC even granted the
Municipality authority "to take the necessary legal steps for the
cancellation/recission of the above cited contract and make representations with
KBMBPM for the immediate transfer/takeover of the possession, management and
operation of the New Muntinlupa Market to the Municipal Government of
Muntinlupa." 4
Consequently, upon representations made by Bunye with the Municipal Council, the
latter approved on 1 August 1988 Resolution No. 45 abrogating the contract. To
implement this resolution, Bunye, together with his co-petitioners and elements of
the Capital Command of the Philippine Constabulary, proceeded, on 19 August 1986,
to the public market and announced to the general public and the stallholders
thereat that the Municipality was taking over the management and operation of the
facility, and that the stallholders should henceforth pay their market fees to the
Municipality, thru the Market Commission, and no longer to the KBMBPM. 5
On 22 August 1988, the KBMBPM filed with Branch 13 of the Regional Trial Court of
Makati a complaint for breach of contract, specific performance and damages with
prayer for a writ of preliminary injunction against the Municipality and its officers,
which was docketed as Civil Case No. 88-1702. 6 The complaint was premised on the
alleged illegal take-over of the public market effected "in excess of his (Bunye's)
alleged authority" and thus "constitutes breach of contract and duty as a public
official."
The writ applied for having been denied, 7 the KBMBPM officers resisted the
attempts of Bunye and company to complete the take-over; they continued holding
office in the KBS building, under their respective official capacities. The matter
having been elevated to this Court by way of certiorari, 8 We remanded the same to
the Court of Appeals which docketed it as C.A.-G.R. No. L-16930. 9
On 26 August 1988, Amado Perez filed with the Office of the Ombudsman a lettercomplaint charging Bunye and his co-petitioners with oppression, harassment, abuse
of authority and violation of the Anti-Graft and Corrupt Practices Act 10 for taking
over the management and operation of the public market from KBMBPM. 11
In a subpoena dated 7 October 1988, prosecutor Mothalib C. Onos of the Office of
the Special Prosecutor directed Bunye and his co-petitioners to submit within ten
(10) days from receipt thereof counter-affidavits, affidavits of their witnesses and
other supporting documents. 12 The subpoena and letter-complaint were received on
12 October 1988.
On 20 October 1988, two (2) days before the expiration of the period granted to file
said documents, Bunye, et al. filed by mail an urgent motion for extension of "at

least fifteen (15) days from October 22, 1988" within which to comply
subpoena.

13

with the

Thereafter, the following transpired which subsequently gave rise to these petitions:
G.R. No. 85439
In the early morning of 29 October 1988, a Saturday, respondent Madriaga and
Coronado, allegedly accompanied by Mayor Bunye and the latters' heavily armed
men, both in uniform and in civilian clothes, together with other civilians, namely:
Romulo Bunye II, Alfredo Bunye, Tomas Osias, Reynaldo Camilon, Benjamin
Taguibao, Benjamin Bulos and other unidentified persons, allegedly through force,
violence and intimidation, forcibly broke open the doors of the offices of petitioners
located at the second floor of the KBS Building, new Muntinlupa Public Market,
purportedly to serve upon petitioners the Order of respondent Secretary of
Agriculture dated 28 October 1988, and to implement the same, by taking over and
assuming the management of KBMBPM, disbanding the then incumbent Board of
Directors for that purpose and excluding and prohibiting the General Manager and
the other officers from exercising their lawful functions as such. 14 The Order of the
Secretary reads as follows: 15

WHEREAS, it is ordered that the Department of Agriculture in the

exercise of its regulatory and supervisory powers under Section 8
of PD 175, as amended, and Section 4 of Executive Order No. 113,
take over the management of KBMBPM under the following
directives:
1. THAT a Management Committee is hereby
created composed of the following:
a) Reg. Dir. or OIC RD DA Region IV
b) Atty. Rogelio P. Madriaga BACOD
c) Mr. Recto Coronado KBMBPM
d) Mrs. Nadjasda Ponsones KBMBPM
e) One (1) from the Municipal Government of
Muntinlupa to be designated by the
Sangguniang Pambayan ng Muntinlupa;

ORDER
WHEREAS, the KILUSANG BAYAN SA PAGLILINGKOD NG MGA
MAGTITINDA NG BAGONG PAMILIHANG BAYAN NG MUNTINLUPA,
INC., (KBMBPM), Alabang, Muntinlupa, Metro Manila is a
Cooperative registered under the provisions of Presidential Decree
No. 175, as amended;
WHEREAS, the Department of Agriculture is empowered to
regulate and supervise cooperatives registered under the
provisions of Presidential Decree No. 175, as amended;
WHEREAS, the general membership of the KBMBPM has petitioned
the Department of Agriculture for assistance in the removal of the
members of the Board of Directors who were not elected by the
general membership of said cooperative;
WHEREAS, the on-going financial and management audit of the
Department of Agriculture auditors show (sic) that the
management of the KBMBPM is not operating that cooperative in
accordance with PD. 175, LOI No. 23, the Circulars issued by
DA/BACOD and the provisions of the by-laws of KBMBPM;
WHEREAS, the interest of the public so demanding it is evident
and urgently necessary that the KBMBPM MUST BE PLACED UNDER
MANAGEMENT TAKE-OVER of the Department of Agriculture in
order to preserve the financial interest of the members of the
cooperative and to enhance the cooperative development
program of the government;

2. THAT the Management Committee shall, upon

receipt of this Order, assume the management
of KBMBPM;
3. THAT the present Board of Directors is hereby
disbanded and the officers and Manager of the
KBMBPM are hereby directed to turnover all
assets, properties and records of the KBMBPM to
the Management Committee herein created;
4. THAT the Management Committee is hereby
empowered to promulgate rules of procedure to
govern its workings as a body;
5. THAT the Management Committee shall
submit to the undersigned thru the Director of
BACOD monthly reports on the operations of
KBMBPM;
6. THAT the Management Committee shall call a
General Assembly of all registered members of
the KBMBPM within Ninety (90) days from date
of this Order to decide such matters affecting
the KBMBPM, including the election of a new set
of Board of Director (sic).
This Order takes effect immediately and shall continue to be in
force until the members of the Board of Directors shall have been
duly elected and qualified.

Done this 28th day of October, 1988 at Quezon City.

As claimed by petitioners, the Order served on them was not written on the
stationary of the Department, does not bear its seal and is a mere xerox copy.
The so-called petition upon which the Order is based appears to be an unverified
petition dated 10 October 1988 signed, according to Mayor Bunye, 16 by 371
members of the KBMBPM.
On 2 November 1988, petitioners filed the petition in this case alleging, inter alia,
that:
(a) Respondent Secretary acted without or in excess of jurisdiction
in issuing the Order for he arrogated unto himself a judicial
function by determining the alleged guilt of petitioners on the
strength of a mere unverified petition; the disbandment of the
Board of Directors was done without authority of law since under
Letter of Implementation No. 23, removal of officers, directors or
committee members could be done only by the majority of the
members entitled to vote at an annual or special general assembly
and only after an opportunity to be heard at said assembly.
(b) Respondent Secretary acted in a capricious, whimsical,
arbitrary and despotic manner, so patent and gross that it
amounted to a grave abuse of discretion.
(c) The Order is a clear violation of the By-Laws of KBMBPM and is
likewise illegal and unlawful for it allows or tolerates the violation
of the penal provisions under paragraph (c), Section 9 of P.D. No.
175.
(d) The Order is a clear violation of the constitutional right of the
individual petitioners to be heard. 17
They pray that upon the filing of the petition, respondents, their agents,
representatives or persons acting on their behalf be ordered to refrain, cease and
desist from enforcing and implementing the questioned Order or from excluding the
individual petitioners from the exercise of their rights as such officers and, in the
event that said acts sought to be restrained were already partially or wholly done, to
immediately restore the management and operation of the public market to
petitioners, order respondents to vacate the premises and, thereafter, preserve
the status quo; and that, finally, the challenged Order be declared null and void.
In the Resolution of 9 October 1988, 18 We required the respondents to Comment on
the petition. Before any Comment could be filed, petitioners filed on 2 January 1989
an Urgent Ex-Parte Motion praying that respondent Atty. Rogelio Madriaga, who had
assumed the position of Chairman of the Management Committee, be ordered to
stop and/or cancel the scheduled elections of the officers of the KBMBPM on 6
January 1989 and, henceforth, desist from scheduling any election of officers or
Members of the Board of Directors thereof until further orders on the Court. 19 The
elections were, nevertheless, held and a new board of directors was elected. So, on
19 January 1989, petitioners filed a supplemental motion 20 praying that respondent
Madriaga and the "newly elected Board of Directors be ordered to cease and desist

from assuming, performing or exercising powers as such, and/or from removing or

replacing the counsels of petitioners as counsels for KBMBPM and for Atty. Fernando
Aquino, Jr., to cease and desist from unduly interfering with the affairs and business
of the cooperative."
Respondent Bunye, by himself, filed his Comment on 23 January 1989. 21 He denies
the factual allegations in the petition and claims that petitioners failed to exhaust
administrative remedies. A reply thereto was filed by petitioners on 7 February
1989. 22
Respondent Recto Coronado filed two (2) Comments. The first was filed on 6
February 1989 23 by his counsel, Atty. Fernando Aquino, Jr., and the second, which is
for both him and Atty. Madriaga, was filed by the latter on 10 February 1989. 24
On 20 February 1989, petitioners filed a Reply to the first Comment of
Coronado 25 and an Ex-Parte Motion for the immediate issuance of a cease and
desist order 26 praying that the so-called new directors and officers of KBMBPM,
namely: Tomas M. Osias, Ildefonso B. Reyes, Paulino Moldez, Fortunato M. Medina,
Aurora P. del Rosario, Moises Abrenica, and Lamberto Casalla, be ordered to
immediately cease and desist from filing notices of withdrawals or motions to
dismiss cases filed by the Cooperative now pending before the courts,
administrative offices and the Ombudsman and Tanodbayan, and that if such
motions or notices were already filed, to immediately withdraw and desist from
further pursuing the same until further orders of this Court. The latter was
precipitated by the Resolution No. 19 of the "new" board of directors withdrawing all
cases filed by its predecessors against Bunye, et al., and more particularly the
following cases: (a) G.R. No. 85439 (the instant petition), (b) Civil Case No. 88-1702,
(c) OSP Case No. 88-2110 before the Ombudsman, (d) IBP Case No. 88-0119 before
the Tanodbayan, and Civil Case No. 88-118 for Mandamus. 27
On 1 March 1989, We required the Solicitor General to file his Comment to the
petition and the urgent motion for the immediate issuance of a cease and desist
order. 28
A motion to dismiss the instant petition was filed on 30 March 1989. 29 On 19 April
1989, We resolved to dismiss the case and consider it closed and
terminated. 30 Thereupon, after some petitioners filed a motion for clarification and
reconsideration, We set aside the dismissal order and required the new directors to
comment on the Opposition to Motion to Dismiss filed by the former. 31
The new board, on 14 June 1989, prayed that its Manifestation of 6 June 1989 and
Opposition dated 9 June 1989, earlier submitted it response to petitioners' motion
for reconsideration of the order dismissing the instant petition, be treated as its
Comment. 32 Both parties then continued their legal fencing, serving several
pleadings on each other.
In Our Resolution of 9 August 1989, 33 We gave the petition due course and required
the parties to submit their respective Memoranda.
On 14 August 1989, petitioners filed an urgent ex-parte motion for the immediate
issuance of a cease and desist order 34 in view of the new board's plan to enter into
a new management contract; the motion was noted by this Court on 23 August
1989. A second ex-parte motion, noted on 18 October 1989, was filed on 19

September 1989 asking this court to consider the "Invitation to pre-qualify and bid"
for a new contract published by respondent Bunye. 35

information against them before the Sandiganbayan. 42Petitioners also claim that
they submitted their counter-affidavits on 9 November 1988. 43

In a belated Comment 36 for the respondent Secretary of Agriculture filed on 22

September 1989, the Office of the Solicitor General asserts that individual
petitioners, who were not allegedly elected by the members or duly designated by
the BACOD Director, have no right or authority to file this case; the assailed Order of
the Secretary was issued pursuant to P.D. No. 175, more particularly Section 8
thereof which authorizes him "(d) to suspend the operation or cancel the registration
of any cooperative after hearing and when in its judgment and based on findings,
such cooperative is operating in violation of this Decree, rules and regulations,
existing laws as well as the by-laws of the cooperative itself;" the Order is
reasonably necessary to correct serious flaws in the cooperative and provide interim
measures until election of regular members to the board and officers thereof; the
elections conducted on 6 January 1989 are valid; and that the motion to dismiss filed
by the new board of directors binds the cooperative. It prays for the dismissal of the
petition.

In their motion dated 2 December 1988, petitioners move for a reconsideration of

the above Resolution, 44 which was denied by Onos 45 in his 18 January 1989 Order.
The information against the petitioners was attached to this order.

Respondent Secretary of Agriculture manifested on 22 September 1989 that he is

adopting the Comment submitted by the Office of the Solicitor General as his
memorandum; 37 petitioners and respondents Coronado and Madriaga filed their
separate Memoranda on 6 November 1989; 38 while the new board of directors
submitted its Memorandum on 11 December 1989. 39

On 22 August 1989, de la Llana recommended the filing of an information for

violation of section 3 (e) of the Anti-Graft and Corrupt Practices Act. 49 The case was
referred to special prosecuting officer Jose Parentela, Jr. who, in his
Memorandum 50 to the Ombudsman through the Acting Special Prosecutor, likewise
urged that an information be filed against herein petitioners. On 3 October 1989, the
Ombudsman signed his conformity to the Memorandum and approved the 18
January information prepared by Onos, which was then filed with the
Sandiganbayan.

The new KBMBPM board submitted additional pleadings on 16 February 1990 which
it deemed relevant to the issues involved herein. Reacting, petitioners filed a motion
to strike out improper and inadmissible pleadings and annexes and sought to have
the pleaders cited for contempt. Although We required respondents to comment, the
latter did not comply.
Nevertheless, a manifestation was filed by the same board on 25 February
1991 40 informing this Court of the holding, on 9 January 1991, of its annual general
assembly and election of its board of directors for 1991. It then reiterates the prayer
that the instant petition be considered withdrawn and dismissed. Petitioners filed a
counter manifestation alleging that the instant petition was already given due
course on 9 August 1989. 41 In its traverse to the counter manifestation, the new
board insists that it "did not derive authority from the October 28, 1988 Order, the
acts of the Management Committee, nor (sic) from the elections held in (sic) January
6, 1989," but rather from the members of the cooperative who elected them into
office during the elections.
Petitioners filed a rejoinder asserting that the election of new directors is not a
supervening event independent of the main issue in the present petition and that to
subscribe to the argument that the issues in the instant petition became moot with
their assumption into office is to reward a wrong done.
G. R. NO. 91927
Petitioners claim that without ruling on their 20 October 1988 motion for an
extension of at last 15 days from 22 October 1988 within which to file their counteraffidavits, which was received by the Office of the Special Prosecutor on 3 November
1988, Special Prosecutor Onos promulgated on 11 November 1988 a Resolution
finding the evidence on hand sufficient to establish a prima facie case against
respondents (herein petitioners) and recommending the filing of the corresponding

Upon submission of the records for his approval, the Ombudsman issued a first
indorsement on 4 April 1989 referring to "Judge Gualberto J. de la Llana, Acting
Director , IEO/RSSO, this Office, the within records of OSP Case No. 88-02110 . . . for
further preliminary investigation . . ." 46
Thereafter, on 28 April 1989, Bunye and company received a subpoena from de la
Llana requiring them to appear before the latter on 25 April 1989, 47 submit a report
and file comment. After being granted an extension, Bunye and company submitted
their comment on 18 May 1989. 48

Consequently, Bunye, et al. were served arrest warrants issued by the

Sandiganbayan. Detained at the NBI on 9 October 1989, they claim to have
discovered only then the existence of documents recommending and approving the
filing of the complaint and a memorandum by special prosecutor Bernardita G. Erum
proposing the dismissal of the same. 51
Arraignment was set for 18 October 1989.

52

However, on 14 October 1989, petitioners filed with the Sandiganbayan an

"Omnibus Motion to Remand to the Office of the Ombudsman; to Defer Arraignment
and to Suspend Proceedings." 53
Subsequently, through new counsel, petitioners filed on 17 October 1989 a
Consolidated Manifestation and Supplemental Motion 54 praying, inter alia, for the
quashal of the information on the ground that they were deprived of their right to a
preliminary investigation and that the information did not charge an offense.
The Sandiganbayan issued an order on 18 October 1989 deferring arraignment and
directing the parties to submit their respective memoranda, 55 which petitioners
complied with on 2 November 1989. 56 On 16 November 1989, special Prosecutor
Berbano filed a motion to admit amended
information. 57
On 17 November 1989, the Sandiganbayan handed down a Resolution 58 denying for
lack of merit the Omnibus Motion to Remand the Case To The Office of the
Ombudsman, to Defer Arraignment and to Suspend Proceedings. Petitioners then

filed a motion to order a preliminary investigation 59 on the basis of the introduction

by the amended information of new, material and substantive allegations, which the
special prosecutor opposed,60 thereby precipitating a rejoinder filed by petitioners. 61
On 4 January 1990, the Sandiganbayan handed down a Resolution 62 admitting the
Amended Information and denying the motion to direct preliminary investigation.
Their motion to reconsider this Resolution having been denied in the Resolution of 1
February 1990, 63 petitioners filed the instant petition on 12 February 1990.
Petitioners claim that respondent Sandiganbayan acted without or in excess of
jurisdiction or with manifest grave abuse of discretion amounting to lack of
jurisdiction in denying petitioners their right to preliminary investigation and in
admitting the Amended Information.
They then pray that: (a) the 4 January and 1 February 1990 Resolutions of the
Sandiganbayan, admitting the amended information and denying the motion for
reconsideration, respectively, be annulled; (b) a writ be issued enjoining the
Sandiganbayan from proceeding further in Criminal Case No. 13966; and (c)
respondents be enjoined from pursuing further actions in the graft case.
We required the respondents to Comment on the petition.
On 21 February 1990, petitioners' counsel filed a motion to drop Epifanio Espeleta
and Rey E. Dulay as petitioners, 64 and in the Comment they filed on 30 March 1990,
in compliance with Our Resolution of 1 March 1990, they state that they do not
interpose any objection to the motion.
On 20 March 1990, the Office of the Solicitor General moved that it be excused from
filing comment for the respondents as it cannot subscribe to the position taken by
the latter with respect to the questions of law involved. 65 We granted this motion in
the resolution of 8 May 1990.
Respondent Berbano filed his comment on 10 September 1991 and petitioners
replied on 20 December 1990; Berbano subsequently filed a Rejoinder thereto on 11
January 1991. 66 The Sandiganbayan then filed a manifestation proposing that it be
excused from filing comment as its position
on the matters in issue is adequately stated in the resolutions sought to be
annulled. 67 On 7 March 1991, We resolved to note the manifestation and order the
instant petition consolidated with G.R. No. 85439.
The present dispute revolves around the validity of the antecedent proceedings
which led to the filing of the original information on 18 January 1989 and the
amended information afterwards.
THE ISSUES AND THEIR RESOLUTION
1. G. R. No. 85439.
As adverted to in the introductory portion of this Decision, the principal issue in G.R.
No. 85439 is the validity of the 28 October 1988 Order of respondent Secretary of
Agriculture. The exordium of said Order unerringly indicates that its basis is the
alleged petition of the general membership of the KBMBPM requesting the

Department for assistance "in the removal of the members of the Board of Directors
who were not elected by the general membership" of the cooperative and that the
"ongoing financial and management audit of the Department of Agriculture auditors
show (sic) that the management of the KBMBPM is not operating that cooperative in
accordance with P.D. 175, LOI 23, the Circulars issued by DA/BACOD and the
provisions and by-laws of KBMBPM." It is also professed therein that the Order was
issued by the Department "in the exercise of its regulatory and supervisory powers
under Section 8 of P.D. 175, as amended, and Section 4 of Executive Order No. 113."
Respondents challenge the personality of the petitioners to bring this action, set up
the defense of non-exhaustion of administrative remedies, and assert that the Order
was lawfully and validly issued under the above decree and Executive Order.
We find merit in the petition and the defenses interposed do not persuade Us.
Petitioners have the personality to file the instant petition and ask, in effect, for their
reinstatement as Section 3, Rule 65 of the Rules of Court, defining an action
for mandamus, permits a person who has been excluded from the use and
enjoyment of a right or office to which he is entitled, to file suit. 68 Petitioners, as
ousted directors of the KBMBPM, are questioning precisely the act of respondent
Secretary in disbanding the board of directors; they then pray that this Court restore
them to their prior stations.
As to failure to exhaust administrative remedies, the rule is well-settled that this
requirement does not apply where the respondent is a department secretary whose
acts, as an alter ego of the President, bear the implied approval of the latter, unless
actually disapproved by him. 69 This doctrine of qualified political agency ensures
speedy access to the courts when most needed. There was no need then to appeal
the decision to the office of the President; recourse to the courts could be had
immediately. Moreover, the doctrine of exhaustion of administrative remedies also
yields to other exceptions, such as when the question involved is purely legal, as in
the instant case, 70 or where the questioned act is patently illegal, arbitrary or
oppressive. 71 Such is the claim of petitioners which, as hereinafter shown, is correct.
And now on the validity of the assailed Order.
Regulation 34 of Letter of Implementation No. 23 (implementing P.D. No. 175)
provides the procedure for the removal of directors or officers of cooperatives, thus:
An elected officer, director or committee member may be removed
by a vote of majority of the members entitled to vote at an annual
or special general assembly. The person involved shall have an
opportunity to be heard.
A substantially identical provision, found in Section 17, Article III of the KBMBPM's
by-laws, reads:
Sec. 17. Removal of Directors and Committee Members. Any
elected director or committee member may be removed from
office for cause by a majority vote of the members in good
standing present at the annual or special general assembly called
for the purpose after having been given the opportunity to be
heard at the assembly.

Under the same article are found the requirements for the holding of both the
annual general assembly and a special general assembly.

that a hearing was not expressly required in the law, still the Order can be validly
issued only after giving due process to the affected parties, herein petitioners.

Indubitably then, there is an established procedure for the removal of directors and
officers of cooperatives. It is likewise manifest that the right to due process is
respected by the express provision on the opportunity to be heard. But even without
said provision, petitioners cannot be deprived of that right.

Due process is guaranteed by the Constitution 75 and extends to administrative

proceedings. In the landmark case of Ang Tibay vs. Court of Industrial
Relations, 76 this Court, through Justice Laurel, laid down the cardinal primary
requirements of due process in administrative proceedings, foremost of which is the
right to a hearing, which includes the right to present one's case and submit
evidence in support thereof. The need for notice and the opportunity to be heard is
the heart of procedural due process, be it in either judicial or administrative
proceedings. 77 Nevertheless, a plea of a denial of procedural due process does not
lie where a defect consisting in an absence of notice of hearing was thereafter cured
by the aggrieved party himself as when he had the opportunity to be heard on a
subsequent motion for reconsideration. This is consistent with the principle that
what the law prohibits is not the absence of previous notice but the absolute
absence thereof and lack of an opportunity to be heard. 78

The procedure was not followed in this case. Respondent Secretary of Agriculture
arrogated unto himself the power of the members of the KBMBPM who are
authorized to vote to remove the petitioning directors and officers. He cannot take
refuge under Section 8 of P.D. No. 175 which grants him authority to supervise and
regulate all cooperatives. This section does not give him that right.
An administrative officer has only such powers as are expressly granted to him and
those necessarily implied in the exercise thereof. 72 These powers should not be
extended by implication beyond what may to necessary for their just and reasonable
execution. 73
Supervision and control include only the authority to: (a) act directly whenever a
specific function is entrusted by law or regulation to a subordinate; (b) direct the
performance of duty; restrain the commission of acts; (c) review, approve, reverse or
modify acts and decisions of subordinate officials or
units; (d) determine priorities in the execution of plans and programs; and (e)
prescribe standards, guidelines, plans and programs. Specifically, administrative
supervision is limited to the authority of the department or its equivalent to: (1)
generally oversee the operations of such agencies and insure that they are managed
effectively, efficiently and economically but without interference with day-to-day
activities; (2) require the submission of reports and cause the conduct of
management audit, performance evaluation and inspection to determine compliance
with policies, standards and guidelines of the department; (3) take such action as
may be necessary for the proper performance of official functions, including
rectification of violations, abuses and other forms of mal-administration; (4) review
and pass upon budget proposals of such agencies but may not increase or add to
them. 74
The power to summarily disband the board of directors may not be inferred from any
of the foregoing as both P.D. No. 175 and the by-laws of the KBMBPM explicitly
mandate the manner by which directors and officers are to be removed. The
Secretary should have known better than to disregard these procedures and rely on
a mere petition by the general membership of the KBMBPM and an on-going audit by
Department of Agriculture auditors in exercising a power which he does not have,
expressly or impliedly. We cannot concede to the proposition of the Office of the
Solicitor General that the Secretary's power under paragraph (d), Section 8 of P.D.
No. 175 above quoted to suspend the operation or cancel the registration of any
cooperative includes the "milder authority of suspending officers and calling for the
election of new officers." Firstly, neither suspension nor cancellation includes the
take-over and ouster of incumbent directors and officers, otherwise the law itself
would have expressly so stated. Secondly, even granting that the law intended such
as postulated, there is the requirement of a hearing. None was conducted.
Likewise, even if We grant, for the sake of argument, that said power includes the
power to disband the board of directors and remove the officers of the KBMBPM, and

In the instant case, there was no notice of a hearing on the alleged petition of the
general membership of the KBMBPM; there was, as well, not even a semblance of a
hearing. The Order was based solely on an alleged petition by the general
membership of the KBMBPM. There was then a clear denial of due process. It is most
unfortunate that it was done after democracy was restored through the peaceful
people revolt at EDSA and the overwhelming ratification of a new Constitution
thereafter, which preserves for the generations to come the gains of that historic
struggle which earned for this Republic universal admiration.
If there were genuine grievances against petitioners, the affected members should
have timely raise these issues in the annual general assembly or in a special general
assembly. Or, if such a remedy would be futile for some reason or another, judicial
recourse was available.
Be that as it may, petitioners cannot, however, be restored to their positions. Their
terms expired in 1989, thereby rendering their prayer for reinstatement moot and
academic. Pursuant to Section 13 of the by-laws, during the election at the first
annual general assembly after registration, one-half plus one (4) of the directors
obtaining the highest number of votes shall serve for two years, and the remaining
directors (3) for one year; thereafter, all shall be elected for a term of two years.
Hence, in 1988, when the board was disbanded, there was a number of directors
whose terms would have expired the next year (1989) and a number whose terms
would have expired two years after (1990). Reversion to the status quo preceding 29
October 1988 would not be feasible in view of this turn of events. Besides, elections
were held in 1990 and 1991. 79 The affairs of the cooperative are presently being
managed by a new board of directors duly elected in accordance with the
cooperative's by-laws.
2. G. R. No. 91927.
The right of an accused to a preliminary investigation is not among
the rights guaranteed him in the Bill of Rights. As stated in Marcos, et
al. vs. Cruz, 80 "the preliminary investigation in criminal cases is not a creation of
the Constitution; its origin is statutory and it exists and the right thereto can be
invoked when so established and granted by law. It is so specifically granted by
procedural law. 81 If not waived, absence thereof may amount to a denial of due
process. 82 However, lack of preliminary investigation is not a ground to quash or

dismiss a complaint or information. Much less does it affect the court's jurisdiction.
In People vs. Casiano, 83 this Court ruled:
Independently of the foregoing, the absence of such investigation
[preliminary] did not impair the validity of the information or
otherwise render it defective. Much less did it affect the
jurisdiction of the court of first instance over the present case.
Hence, had the defendant-appellee been entitled to another
preliminary investigation, and had his plea of not guilty upon
arraignment not implied a waiver of said right, the court of first
instance should have, either conducted such preliminary
investigation, or ordered the Provincial Fiscal to make it, in
pursuance of section 1687 of the Revised Administrative Code (as
amended by Republic Act No. 732), or remanded the record for
said investigation to the justice of the peace court, instead of
dismissing the case as it did in the order appealed from.
This doctrine was thereafter reiterated or affirmed in several case. 84
In the instant case, even if it is to be conceded for argument's sake that there was in
fact no preliminary investigation, the Sandiganbayan, per Doromal
vs. Sandiganbayan, 85 "should merely suspend or hold in abeyance proceedings
upon the questioned Amended Information and remand the case to the Office of the
Ombudsman for him to conduct a preliminary investigation."
It is Our view, however, that petitioners were not denied the right to preliminary
investigation. They, nevertheless, insist that the preliminary investigation conducted
by the Office of the Special Prosecutor existed more in form than in substance. This
is anchored on the failure by prosecutor Onos to consider the counter-affidavits filed
by petitioners. The same sin of omission is ascribed to Acting Director de la Llana
who purportedly failed to consider the comments submitted by the petitioners
pursuant to a subpoena dated 13 April 1989. The failure of special prosecutor
Berbano to conduct a preliminary investigation before amending the information is
also challenged.
It is finally urged that the Sandiganbayan completely disregarded the "glaring
anomaly that on its face the Information filed by the Office of the Special Prosecutor"
was prepared and subscribed on 18 January 1989, while the records indicate that the
preliminary investigation was concluded on 3 October 1989.
In his Comment, respondent Berbano dispassionately traces the genesis of the
criminal information filed before the Sandiganbayan. His assessment that a
preliminary investigation sufficient in substance and manner was conducted prior to
the filing of the information reflects the view of the Sandiganbayan, maintained in
both the 17 November 1989 and 4 January 1990 resolutions, that there was
compliance with the requirements of due process.
Petitioners were provided a reasonable period within which to submit their counteraffidavits; they did not avail of the original period; they moved for an extension of at
least fifteen (15) days from 22 October 1988. Despite the urgency of its nature, the
motion was sent by mail. The extension prayed for was good up to 6 November
1988. But, as admitted by them, they filed the Counter-Affidavits only on 9
November 1988. Yet, they blamed prosecutor Onos for promulgating the 11
November 1989 Resolution and for, allegedly, not acting on the motion. Petitioners

then should not lay the blame on Onos; they should blame themselves for
presuming that the motion would be granted.
This notwithstanding, petitioners were able to file a Motion for Reconsideration on 13
December 1988 requesting that the reviewing prosecutor consider the belatedly
filed documents; 86 thus, there is the recommendation of prosecutor Bernardita
Erum calling for the dismissal of the charges on 2 March 1989, which, however, was
not sustained upon subsequent review. The Sandiganbayan, in its 17 November
1989 Resolution, succinctly summed up the matter when it asserted that "even
granting, for the sake of argument, that prosecutor Onos . . . failed to consider
accused-movants' counter-affidavits, such defect was cured when a "Motion for
Reconsideration" was filed, and
which . . . de la Llana took into account upon review."
It may not then be successfully asserted that the counter-affidavits were not
considered by the Ombudsman in approving the information. Perusal of the factual
antecedents reveals that a second investigation was conducted upon the "1st
Indorsement" of the Ombudsman of 4 April 1989. As a result, subpoenas were issued
and comments were asked to be submitted, which petitioners did, but only after a
further extension of fifteen (15) days from the expiration of the original deadline.
From this submission the matter underwent further review.
Moreover, in the 18 January 1989 Order of prosecutor Onos, there was an ample
discussion of the defenses raised by the petitioners in their counter-affidavits, thus
negating the charge that the issues raised by them were not considered at all. 87
It is indisputable that the respondents were not remiss in their duty to afford the
petitioners the opportunity to contest the charges thrown their way. Due process
does not require that the accused actually file his counter-affidavits before the
preliminary investigation is deemed completed. All that is required is that he be
given the opportunity to submit such if he is so minded. 88
In any event, petitioners did in fact, although belatedly, submit their counteraffidavits and as a result thereof, the prosecutors concerned considered them in
subsequent reviews of the information, particularly in the re-investigation ordered by
the Ombudsman.
And now, as to the protestation of lack of preliminary investigation prior to the filing
of the Amended Information. The prosecution may amend the information without
leave of court before arraignment, 89 and such does not prejudice the
accused. 90 Reliance on the pronouncements in Doromal vs. Sandiganbayan 91 is
misplaced as what obtained therein was the preparation of an entirely new
information as contrasted with mere amendments introduced in the amended
information, which also charges petitioners with violating Section 3 (e) of the AntiGraft Law.
In Gaspar vs. Sandiganbayan, 92 We held that there is no rule or law requiring the
Tanodbayan to conduct another preliminary investigation of a case under review by
it. On the contrary, under P.D. No. 911, in relation to Rule 12, Administrative Order
No. VII, the Tanodbayan may, upon review, reverse the findings of the investigator
and thereafter "where he finds a prima facie case, to cause the filing of an
information in court against the respondent, based on the same sworn statements or
evidence submitted, without the necessity of conducting another preliminary
investigation."

Respondent Sandiganbayan did not then commit any grave abuse of discretion in
respect to its Resolutions of 4 January 1990 and 1 February 1990.
The petition then must fail.
CONCLUSION
WHEREFORE, judgment is hereby rendered:

xxx

1. GRANTING the petition in G.R. No. 85439; declaring null and void the challenged
Order of 28 October 1988 of the respondent Secretary of Agriculture; but denying,
for having become moot and academic, the prayer of petitioners that they be
restored to their positions in the KBMBPM.
2. DISMISSING, for lack of merit, the petition in G.R. No. 91927.
No pronouncement as to costs.
IT IS SO ORDERED.

SENATOR ROBERT S. JAWORSKI, petitioner, vs. PHILIPPINE AMUSEMENT

AND
GAMING
CORPORATION
and
SPORTS
AND
GAMES
ENTERTAINMENT CORPORATION, respondents.
DECISION
YNARES-SANTIAGO, J.:
The instant petition for certiorari and prohibition under Rule 65 of the Rules of
Court seeks to nullify the Grant of Authority and Agreement for the Operation of
Sports Betting and Internet Gaming, executed by respondent Philippine Amusement
and Gaming Corporation (hereinafter referred to as PAGCOR) in favor of respondent
Sports and Games and Entertainment Corporation (also referred to as SAGE).
The facts may be summarized as follows:
PAGCOR is a government owned and controlled corporation existing under
Presidential Decree No. 1869 issued on July 11, 1983 by then President Ferdinand
Marcos. Pertinent provisions of said enabling law read:
SECTION 1. Declaration of Policy. It is hereby declared to be the policy of the State
to centralize and integrate all games of chance not heretofore authorized by existing
franchises or permitted by law in order to attain the following objectives:
xxx

xxx

xxx

TITLE IV GRANT OF FRANCHISE

Sec.10. Nature and term of franchise. Subject to the terms and conditions
established in this Decree, the Corporation is hereby granted for a period of twentyfive (25) years, renewable for another twenty-five (25) years, the rights, privileges
and authority to operate and maintain gambling casinos, clubs, and other recreation
or amusement places, sports, gaming pools, i.e. basketball, football, lotteries, etc.
whether on land or sea, within the territorial jurisdiction of the Republic of the
Philippines.
On March 31, 1998, PAGCORs board of directors approved an instrument
denominated as Grant of Authority and Agreement for the Operation of Sports
Betting and Internet Gaming, which granted SAGE the authority to operate and
maintain Sports Betting station in PAGCORs casino locations, and Internet Gaming
facilities to service local and international bettors, provided that to the satisfaction
of PAGCOR, appropriate safeguards and procedures are established to ensure the
integrity and fairness of the games.

[G.R. No. 144463. January 14, 2004]

xxx

b)
To establish and operate clubs and casinos, for amusement and recreation,
including sports, gaming pools (basketball, football, lotteries, etc.) and such other
forms of amusement and recreation including games of chance, which may be
allowed by law within the territorial jurisdiction of the Philippines and which will: x x
x (3) minimize, if not totally eradicate, the evils, malpractices and corruptions that
are normally prevalent in the conduct and operation of gambling clubs and casinos
without direct government involvement.

xxx

On September 1, 1998, PAGCOR, represented by its Chairperson, Alicia Ll.

Reyes, and SAGE, represented by its Chairman of the Board, Henry Sy, Jr., and its
President, Antonio D. Lacdao, executed the above-named document.
Pursuant to the authority granted by PAGCOR, SAGE commenced its operations
by conducting gambling on the Internet on a trial-run basis, making pre-paid cards
and redemption of winnings available at various Bingo Bonanza outlets.
Petitioner, in his capacity as member of the Senate and Chairman of the
Senate Committee on Games, Amusement and Sports, files the instant petition,
praying that the grant of authority by PAGCOR in favor of SAGE be nullified. He
maintains that PAGCOR committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it authorized SAGE to operate gambling on the internet.
He contends that PAGCOR is not authorized under its legislative franchise, P.D. 1869,
to operate gambling on the internet for the simple reason that the said decree could
not have possibly contemplated internet gambling since at the time of its enactment
on July 11, 1983 the internet was yet inexistent and gambling activities were
confined exclusively to real-space. Further, he argues that the internet, being an
international network of computers, necessarily transcends the territorial jurisdiction
of the Philippines, and the grant to SAGE of authority to operate internet gambling
contravenes the limitation in PAGCORs franchise, under Section 14 of P.D. No. 1869
which provides:
Place. The Corporation [i.e., PAGCOR] shall conduct gambling activities or games of
chance on land or water within the territorial jurisdiction of the Republic of the
Philippines. x x x

Moreover, according to petitioner, internet gambling does not fall under any of
the categories of the authorized gambling activities enumerated under Section 10 of
P.D. No. 1869 which grants PAGCOR the right, privilege and authority to operate
and maintain gambling casinos, clubs, and other recreation or amusement places,
sports gaming pools, within the territorial jurisdiction of the Republic of the
Philippines.[1] He contends that internet gambling could not have been included
within the commonly accepted definition of gambling casinos, clubs or other
recreation or amusement places as these terms refer to a physical structure in realspace where people who intend to bet or gamble go and play games of chance
authorized by law.
The issues raised by petitioner are as follows:
I. WHETHER OR NOT RESPONDENT PAGCOR IS AUTHORIZED UNDER P.D.
NO. 1869 TO OPERATE GAMBLING ACTIVITIES ON THE INTERNET;
II. WHETHER RESPONDENT PAGCOR ACTED WITHOUT OR IN EXCESS OF
ITS JURISDICTION, OR GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION, WHEN IT AUTHORIZED
RESPONDENT SAGE TO OPERATE INTERNET GAMBLING ON THE BASIS
OF ITS RIGHT TO OPERATE AND MAINTAIN GAMBLING CASINOS,
CLUBS AND OTHER AMUSEMENT PLACES UNDER SECTION 10 OF P.D.
1869;
III. WHETHER RESPONDENT PAGCOR ACTED WITHOUT OR IN EXCESS OF
ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT GRANTED
AUTHORITY TO SAGE TO OPERATE GAMBLING ACTIVITIES IN THE
INTERNET.
The above-mentioned issues may be summarized into a single pivotal
question: Does PAGCORs legislative franchise include the right to vest another
entity, SAGE in this case, with the authority to operate Internet
gambling? Otherwise put, does Presidential Decree No. 1869 authorize PAGCOR to
contract any part of its franchise to SAGE by authorizing the latter to operate
Internet gambling?
Before proceeding with our main discussion, let us first try to hurdle a number
of important procedural matters raised by the respondents.
In their separate Comments, respondents PAGCOR and SAGE insist that
petitioner has no legal standing to file the instant petition as a concerned citizen or
as a member of the Philippine Senate on the ground that he is not a real party-ininterest entitled to the avails of the suit. In this light, they argue that petitioner does
not have the requisite personal and substantial interest to impugn the validity of
PAGCORs grant of authority to SAGE.
Objections to the legal standing of a member of the Senate or House of
Representative to maintain a suit and assail the constitutionality or validity of laws,
acts, decisions, rulings, or orders of various government agencies or
instrumentalities are not without precedent. Ordinarily, before a member of
Congress may properly challenge the validity of an official act of any department of
the government there must be an unmistakable showing that the challenged official
act affects or impairs his rights and prerogatives as legislator. [2] However in a
number of cases,[3] we clarified that where a case involves an issue of utmost
importance, or one of overreaching significance to society, the Court, in its
discretion, can brush aside procedural technicalities and take cognizance of the
petition. Considering that the instant petition involves legal questions that may have

serious implications on public interests, we rule that petitioner has the requisite
legal standing to file this petition.
Respondents likewise urge the dismissal of the petition for certiorari and
prohibition because under Section 1, Rule 65 of the 1997 Rules of Civil Procedure,
these remedies should be directed to any tribunal, board, officer or person whether
exercising judicial, quasi-judicial, or ministerial functions. They maintain that in
exercising its legally-mandated franchise to grant authority to certain entities to
operate a gambling or gaming activity, PAGCOR is not performing a judicial or quasijudicial act. Neither should the act of granting licenses or authority to operate be
construed as a purely ministerial act. According to them, in the event that this Court
takes cognizance of the instant petition, the same should be dismissed for failure of
petitioner to observe the hierarchy of courts.
Practically the same procedural infirmities were raised in Del Mar v. Philippine
Amusement and Gaming Corporation where an almost identical factual setting
obtained. Petitioners therein filed a petition for injunction directly before the Court
which sought to enjoin respondent from operating the jai-alai games by itself or in
joint venture with another corporate entity allegedly in violation of law and the
Constitution. Respondents contended that the Court had no jurisdiction to take
original cognizance of a petition for injunction because it was not one of the actions
specifically mentioned in Section 1 of Rule 56 of the 1997 Rules of Civil Procedure.
Respondents likewise took exception to the alleged failure of petitioners to observe
the doctrine on hierarchy of courts. In brushing aside the apparent procedural lapse,
we held that x x x this Court has the discretionary power to take cognizance of the
petition at bar if compelling reasons, or the nature and importance of the issues
raised, warrant the immediate exercise of its jurisdiction. [4]
In the case at bar, we are not inclined to rule differently. The petition at bar
seeks to nullify, via a petition for certiorari and prohibition filed directly before this
Court, the Grant of Authority and Agreement for the Operation of Sports Betting
and Internet Gaming by virtue of which SAGE was vested by PAGCOR with the
authority to operate on-line Internet gambling. It is well settled that averments in
the complaint, and not the nomenclature given by the parties, determine the nature
of the action.[5] Although the petition alleges grave abuse of discretion on the part of
respondent PAGCOR, what it primarily seeks to accomplish is to prevent the
enforcement of the Grant of Authority and Agreement for the Operation of Sports
Betting and Internet Gaming. Thus, the action may properly be characterized as
one for Prohibition under Section 2 of Rule 65, which incidentally, is another remedy
resorted to by petitioner.
Granting arguendo that the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues involved in this
case warrants that we set aside the technical defects and take primary jurisdiction
over the petition at bar. One cannot deny that the issues raised herein
have potentially pervasive influence on the social and moral well being of this
nation, specially the youth; hence, their proper and just determination is an
imperative need. This is in accordance with the well-entrenched principle that rules
of procedure are not inflexible tools designed to hinder or delay, but to facilitate and
promote the administration of justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate, rather than promote substantial justice,
must always be eschewed.[6]
Having disposed of these procedural issues, we now come to the substance of
the action.
A legislative franchise is a special privilege granted by the state to
corporations. It is a privilege of public concern which cannot be exercised at will and
pleasure, but should be reserved for public control and administration, either by the

government directly, or by public agents, under such conditions and regulations as

the government may impose on them in the interest of the public. It is Congress that
prescribes the conditions on which the grant of the franchise may be made. Thus the
manner of granting the franchise, to whom it may be granted, the mode of
conducting the business, the charter and the quality of the service to be rendered
and the duty of the grantee to the public in exercising the franchise are almost
always defined in clear and unequivocal language.[7]
After a circumspect consideration of the foregoing discussion and the
contending positions of the parties, we hold that PAGCOR has acted beyond the
limits of its authority when it passed on or shared its franchise to SAGE.
In the Del Mar case where a similar issue was raised when PAGCOR entered
into a joint venture agreement with two other entities in the operation and
management of jai alai games, the Court, [8] in an En Banc Resolution dated 24
August 2001, partially granted the motions for clarification filed by respondents
therein insofar as it prayed that PAGCOR has a valid franchise, but only by itself
(i.e. not in association with any other person or entity), to operate, maintain and/or
manage the game of jai-alai.
In the case at bar, PAGCOR executed an agreement with SAGE whereby the
former grants the latter the authority to operate and maintain sports betting stations
and Internet gaming operations. In essence, the grant of authority gives SAGE the
privilege to actively participate, partake and share PAGCORs franchise to operate a
gambling activity. The grant of franchise is a special privilege that constitutes a right
and a duty to be performed by the grantee. The grantee must not perform its
activities arbitrarily and whimsically but must abide by the limits set by its franchise
and strictly adhere to its terms and conditionalities. A corporation as a creature of
the State is presumed to exist for the common good. Hence, the special privileges
and franchises it receives are subject to the laws of the State and the limitations of
its charter. There is therefore a reserved right of the State to inquire how these
privileges had been employed, and whether they have been abused.[9]
While PAGCOR is allowed under its charter to enter into operators and/or
management contracts, it is not allowed under the same charter to relinquish or
share its franchise, much less grant a veritable franchise to another entity such as
SAGE. PAGCOR can not delegate its power in view of the legal principle of delegata
potestas delegare non potest, inasmuch as there is nothing in the charter to show
that it has been expressly authorized to do so. In Lim v. Pacquing,[10] the Court
clarified that since ADC has no franchise from Congress to operate the jai-alai, it
may not so operate even if it has a license or permit from the City Mayor to operate
the jai-alai in the City of Manila. By the same token, SAGE has to obtain a separate
legislative franchise and not ride on PAGCORs franchise if it were to legally
operate on-line Internet gambling.
WHEREFORE, in view of all the foregoing, the instant petition is
GRANTED. The Grant of Authority and Agreement to Operate Sports Betting and
Internet Gaming executed by PAGCOR in favor of SAGE is declared NULL and VOID.

PADILLA, J.:
Private respondent Juan A. Alegre's wife, Dr. Jimena Alegre, sent two (2) RUSH
telegrams through petitioner RCPI's facilities in Taft Ave., Manila at 9:00 in the
morning of 17 March 1989 to his sister and brother-in-law in Valencia, Bohol and
another sister-in-law in Espiritu, Ilocos Norte, with the following identical texts:
MANONG POLING DIED INTERMENT TUESDAY

Both telegrams did not reach their destinations on the expected dates. Private
respondent filed a letter-complaint against the RCPI with the National
Telecommunications Commission (NTC) for poor service, with a request for the
imposition of the appropriate punitive sanction against the company.
Taking cognizance of the complaint, NTC directed RCPI to answer the complaint and
set the initial hearing of the case to 2 May 1989. After two (2) resettings, RCPI
moved to dismiss the case on the following grounds:
1. Juan Alegre is not the real party in interest;
2. NTC has no jurisdiction over the case;
3. the continued hearing of the case violates its constitutional right
to due process of law. 2
RCPI likewise moved for deferment of scheduled hearings until final determination of
its motion to dismiss.
On 15 June 1989, NTC proceeded with the hearing and received evidence for private
respondent Juan Alegre. On 3 October 1989, RCPI's motion to dismiss was denied,
thus:
The herein complainant is the husband of the sender of the "rush"
telegram that respondent allegedly failed to deliver in a manner
respondent bound itself to undertake, so his legal interest in this
administrative case cannot be seriously called in question. As
regards the issue of jurisdiction, the authority of the Commission
to hear and decide this case stems from its power of control and
supervision over the operation of public communication utilities as
conferred upon it by law.

SO ORDERED.
G.R. No. 93237 November 6, 1992
RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), petitioner,
vs.
NATIONAL TELECOMMUNICATIONS COMMISSION (NTC) and JUAN A.
ALEGRE, respondents.

Besides, the filing of a motion to dismiss is not allowed by the

rules (Section 1, Rule 12, Rules of Practice and Procedures).
Following, however, the liberal construction of the rules,
respondent (sic) motion shall be treated as its answer or be
passed upon after the conclusion of the hearing on the
merits. . . . 3

Hearings resumed in the absence of petitioner RCPI which was, however, duly
notified thereof. On 27 November 1989, NTC disposed of the controversy in the
following manner:
WHEREFORE, in view of all the foregoing, the Commission finds
respondent administratively liable for deficient and inadequate
service defined under Section 19(a) of C.A. 146 and hereby
imposes the penalty of FINE payable within thirty (30) days from
receipt hereof in the aggregate amount of ONE THOUSAND PESOS
(P1,000.00) for:
1. Rush Telegram sent to Valencia, Bohol on March 17, 1989 and
received on March 21, 1989
3 days x P200.00 per day = P600.00
2. Rush Telegram sent to Espiritu, Ilocos Norte on March 17, 1989
and received on March 20, 1989
2 days x P200.00 per day = P400.00
Total = P1,000.00
ENTERED. November 27, 1989.

. . . There can be no justification then for the Public Service

Commission imposing the fines for these two petitions. The law
cannot be any clearer. The only power it possessed over radio
companies, as noted was the (sic ) fix rates. It could not take to
task a radio company for negligence or misfeasance. It was bereft
of such competence. It was not vested within such authority. . . .
The Public Service Commission having been abolished by virtue of
a Presidential Decree, as set forth at the outset, and a new Board
of Communications having been created to take its place, nothing
said in its decision has reference to whatever powers are now
lodged in the latter body. . . . . . . (Footnotes omitted)
7

The Office of the Solicitor General now claims that the cited cases are no longer
applicable, that the power and authority of the NTC to impose fines is incidental to
its power to regulate public service utilities and to supervise telecommunications
facilities, which are now clearly defined in Section 15, Executive Order No. 546 dated
23 July 1979: thus:
Functions of the Commission. The Commission shall exercise the
following functions:
xxx xxx xxx
b. Establish, prescribe and regulate the areas of operation of
particular operators of the public service communications;
xxx xxx xxx
h. Supervise and inspect the operation of radio stations and
telecommunications facilities.

A motion for reconsideration by RCPI reiterating averments in its earlier motion to

dismiss was denied for lack of merit; 5 hence, this petition for review invoking C.A.
146 Sec. 19(a) which limits the jurisdiction of the Public Service Commission
(precursor of the NTC) to the fixing of rates. RCPI submits that its position finds
support in two (2) decided cases 6 identical with the present one. Then Justice (later
Chief Justice) Fernando writing for the Court stated:

Two (2) later cases,

Act, because this provision of the law subjects to a fine every

public service that violates or falls (sic) to comply with the terms
and conditions of any certificate or any orders, decisions and
regulations of the Commission. . . . .

adhering to the above tenet ruled:

Even assuming that the respondent Board of Communications has

the power of jurisdiction over petitioner in the exercise of its
supervision to insure adequate public service, petitioner cannot be
subjected to payment of fine under sec. 21 of the Public Service

Regulatory administrative agencies necessarily impose sanctions, adds the Office of

the Solicitor General. RCPI was fined based on the finding of the NTC that it failed to
undertake adequate service in delivering two (2) rush telegrams. NTC takes the view
that its power of supervision was broadened by E. O. No. 546, and that this
development superseded the ruling in RCPI vs. Francisco Santiago and companion
cases.
The issues of due process and real parties in interest do not have to be discussed in
this case. This decision will dwell on the primary question of jurisdiction of the NTC
to administratively impose fines on a telegraph company which fails to render
adequate service to a consumer.
E. O. 546, it will be observed, is couched in general terms. The NTC stepped "into the
shoes" of the Board of Communications which exercised powers pursuant to the
Public Service Act. The power to impose fines should therefore be read in the light of
the Francisco Santiago case because subsequent legislation did not grant additional
powers to the Board of Communications. The Board in other words, did not possess
the power to impose administrative fines on public services rendering deficient
service to customers, ergo its successor cannot arrogate unto itself such power, in
the absence of legislation. It is true that the decision in RCPI vs. Board of
Communications seems to have modified the Santiago ruling in that the later case
held that the Board of Communications can impose fines if the public service entity
violates or fails to comply with the terms and conditions of any certificate or any
order, decision or regulation of the Commission. But can private respondent's
complaint be similarly treated when the complaint seeks redress of a grievance
against the company? 8 NTC has no jurisdiction to impose a fine. Globe Wireless
Ltd. vs. Public Service Commission (G. R. No. L-27250, 21 January 1987, 147 SCRA
269) says so categorically.

Verily, Section 13 of Commonwealth Act No. 146, as amended,

otherwise known as the Public Service Act, vested in the Public
Service Commission jurisdiction, supervision and control over all
public services and their franchises, equipment and other
properties.
xxx xxx xxx
The act complained of consisted in petitioner having allegedly
failed to deliver the telegraphic message of private respondent to
the addressee in Madrid, Spain. Obviously, such imputed
negligence has nothing whatsoever to do with the subject matter
of the very limited jurisdiction of the Commission over petitioner.
Moreover, under Section 21 of C. A. 146, as amended, the
Commission was empowered to impose an administrative fine in
cases of violation of or failure by a public service to comply with
the terms and conditions of any certificate or any orders, decisions
or regulations of the Commission. Petitioner operated under a
legislative franchise, so there were no terms nor conditions of any
certificate issued by the Commission to violate. Neither was there
any order, decision or regulation from the Commission applicable
to petitioner that the latter had allegedly violated, disobeyed,
defied or disregarded.
No substantial change has been brought about by Executive Order No. 546 invoked
by the Solicitor General's Office to bolster NTC's jurisdiction. The Executive Order is
not an explicit grant of power to impose administrative fines on public service
utilities, including telegraphic agencies, which have failed to render adequate
service to consumers. Neither has it expanded the coverage of the supervisory and
regulatory power of the agency. There appears to be no alternative but to reiterate
the settled doctrine in administrative law that:
Too basic in administrative law to need citation of jurisprudence is
the rule that jurisdiction and powers of administrative agencies,
like respondent Commission, are limited to those expressly
granted or necessarily implied from those granted in the
legislation creating such body; and any order without or beyond
such jurisdiction is void and ineffective . . . (Globe Wireless
case, supra).
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE for lack of
jurisdiction of the NTC to render it. The temporary restraining order issued on 18
June 1990 is made PERMANENT without prejudice, however, to the filing by the party
aggrieved by the conduct of RCPI, of the proper action in the proper forum. No costs.
SO ORDERED.

G.R. No. L-45839 June 1, 1988

RUFINO MATIENZO, GODOFREDO ESPIRITU, DIOSCORRO FRANCO, AND LA
SUERTE TRANSPORTATION CORPORATION, petitioners,
vs.
HON. LEOPOLDO M. ABELLERA, ACTING CHAIRMAN OF THE BOARD OF
TRANSPORTATION, HON. GODOFREDO Q. ASUNCION, MEMBER OF THE
BOARD OF TRANSPORTATION, ARTURO DELA CRUZ, MS TRANSPORTATION
CO., INC., NEW FAMILIA TRANSPORTATION CO., ROBERTO MOJARES, ET
AL.,respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari and prohibition, with application for preliminary
injunction, seeking the annulment and inhibition of the grant or award of provisional
permits or special authority by the respondent Board of Transportation (BOT) to
respondent taxicab operators, for the operation and legalization of "excess taxicab
units" under certain provisions of Presidential Decree No. 101 "despite the lapse of
the power to do so thereunder," and "in violation of other provisions of the Decree,
Letter of Instructions No. 379 and other relevant rules of the BOT."
The petitioners and private respondents are all authorized taxicab operators in
Metro Manila. The respondents, however, admittedly operate "colorum" or "kabit"
taxicab units. On or about the second week of February, 1977, private respondents
filed their petitions with the respondent Board for the legalization of their
unauthorized "excess" taxicab units citing Presidential Decree No. 101, promulgated
on January 17, 1973, "to eradicate the harmful and unlawful trade of clandestine
operators, by replacing or allowing them to become legitimate and responsible
operators." Within a matter of days, the respondent Board promulgated its orders
setting the applications for hearing and granting applicants provisional authority to
operate their "excess taxicab units" for which legalization was sought. Thus, the
present petition.
Opposing the applications and seeking to restrain the grant of provisional permits or
authority, as well as the annulment of permits already granted under PD 101, the
petitioners allege that the BOT acted without jurisdiction in taking cognizance of the
petitions for legalization and awarding special permits to the private respondents.
Presidential Decree No. 101 vested in the Board of Transportation the power, among
others "To grant special permits of limited term for the operation of public utility
motor vehicles as may, in the judgment of the Board, be necessary to replace or
convert clandestine operators into legitimate and responsible operators." (Section 1,
PD 101)
Citing, however, Section 4 of the Decree which provides:
SEC. 4. Transitory Provision. Six months after the promulgation
of this Decree, the Board of Transportation, the Bureau of
Transportation, The Philippine Constabulary, the city and municipal
forces, and the provincial and city fiscals shall wage a concerted
and relentless drive towards the total elimination and punishment

of all clandestine and unlawful operators of public utility motor

vehicles."
the petitioners argue that neither the Board of Transportation chairman nor any
member thereof had the power, at the time the petitions were filed (i.e. in 1977), to
legitimize clandestine operations under PD 101 as such power had been limited to a
period of six (6) months from and after the promulgation of the Decree on January
17, 1973. They state that, thereafter, the power lapses and becomes functus officio.
To reinforce their stand, the petitioners refer to certain provisions of the Rules and
Regulations implementing PD 101 issued by respondent Board, Letter of Instructions
No. 379, and BOT Memorandum Circular No. 76-25 (a). In summary, these rules
provide inter alia that (1) only applications for special permits for "colorum" or
"kabit" operators filed before July 17, 1973 shall be accepted and processed (Secs. 3
and 16 (c), BOT-LTC-HPG Joint Regulations Implementing PD 101, pp. 33 and 47,
Rollo); (2) Every provisional authority given to any taxi operator shall be cancelled
immediately and no provisional authority shall thereafter be issued (par. 6, Letter of
Instructions No. 379, issued March 10, 1976, p. 58, Rollo); (3) Effective immediately,
no provisional authorities on applications for certificates of public convenience shall
be granted or existing provisional authorities on new applications extended to,
among others, taxi denominations in Metro Manila (BOT Memorandum Circular No.
75-25 (a), August 30, 1976, p. 64, Rollo); (4) All taxis authorized to operate within
Metro Manila shall obtain new special permits from the BOT, which permits shall be
the only ones recognized within the area (par. 8, LOI No. 379, supra); and (5) No
bonafide applicant may apply for special permit to operate, among others, new
taxicab services, and, no application for such new service shall be accepted for filing
or processed by any LTC agency or granted under these regulations by any LTC
Regional Office until after it shall have announced its program of development for
these types of public motor vehicles (Sec. 16d, BOT-LTC-HPG Joint Regulations, p. 47,
Rollo).
The petitioners raise the following issues:
I. WHETHER OR NOT THE BOARD OF TRANSPORTATION HAS THE
POWER TO GRANT PROVISIONAL PERMITS TO OPERATE DESPITE
THE BAN THEREON UNDER LETTER OF INSTRUCTIONS NO. 379;
II. WHETHER OR NOT THE BOARD OF TRANSPORTATION HAS THE
POWER TO LEGALIZE, AT THIS TIME, CLANDESTINE AND
UNLAWFUL TAXICAB OPERATIONS UNDER SECTION 1, P.D. 101;
AND
III. WHETHER OR NOT THE PROCEDURE BEING FOLLOWED BY THE
BOARD IN THE CASES IN QUESTION SATISFIES THE PROCEDURAL
DUE PROCESS REQUIREMENTS. (p. 119, Rollo)
We need not pass upon the first issue raised anent the grant of provisional authority
to respondents. Considering that the effectivity of the provisional permits issued to
the respondents was expressly limited to June 30, 1977, as evidenced by the BOT
orders granting the same (Annexes G, H, I and J among others) and Memorandum
Circular No. 77-4 dated January 20, 1977 (p. 151, Rollo), implementing paragraph 6
of LOI 379 (ordering immediate cancellation of all provisional authorities issued to
taxicab operators, supra), which provides:

5. After June 30, 1977, all provisional authorities are deemed

cancelled, even if hearings on the main application have not been
terminated.
the issue is MOOT and ACADEMIC. Only the issue on legalization remains under
consideration.
Justifying its action on private respondent's applications, the respondent Board
emphasizes public need as the overriding concern. It is argued that under PD 101, it
is the fixed policy of the State "to eradicate the harmful and unlawful trade of
clandestine operators by replacing or allowing them to become legitimate and
responsible ones" (Whereas clause, PD 101). In view thereof, it is maintained that
respondent Board may continue to grant to "colorum" operators the benefits of
legalization under PD 101, despite the lapse of its power, after six (6) months, to do
so, without taking punitive measures against the said operators.
Indeed, a reading of Section 1, PD 101, shows a grant of powers to the respondent
Board to issue provisional permits as a step towards the legalization of colorum
taxicab operations without the alleged time limitation. There is nothing in Section 4,
cited by the petitioners, to suggest the expiration of such powers six (6) months
after promulgation of the Decree. Rather, it merely provides for the withdrawal of
the State's waiver of its right to punish said colorum operators for their illegal acts.
In other words, the cited section declares when the period of moratorium
suspending the relentless drive to eliminate illegal operators shall end. Clearly, there
is no impediment to the Board's exercise of jurisdiction under its broad powers under
the Public Service Act to issue certificates of public convenience to achieve the
avowed purpose of PD 101 (Sec. 16a, Public Service Act, Nov. 7, 1936).
It is a settled principle of law that in determining whether a board or commission has
a certain power, the authority given should be liberally construed in the light of the
purposes for which it was created, and that which is incidentally necessary to a full
implementation of the legislative intent should be upheld as being germane to the
law. Necessarily, too, where the end is required, the appropriate means are deemed
given (Martin, Administrative Law, 1979, p. 46). Thus, as averred by the
respondents:
... [A]ll things considered, the question is what is the best for the
interest of the public. Whether PD 101 has lost its effectiveness or
not, will in no way prevent this Board from resolving the
question in the same candor and spirit that P.D. 101 and LOI 379
were issued to cope with the multifarious ills that plague our
transport system. ... (Emphasis supplied) (pp. 91-92, Rollo)
This, the private respondents appreciate, as they make reference to PD 101, merely
to cite the compassion with which colorum operators were dealt with under the law.
They state that it is "in the same vein and spirit that this Honorable Board has
extended the Decree of legalization to the operatives of the various PUJ and PUB
services along legislative methods," that respondents pray for authorization of their
colorum units in actual operation in Metro Manila (Petitions for Legalization, Annexes
E & F, par. 7, pp. 65-79, Rollo).
Anent the petitioners' reliance on the BOT Rules and Regulations Implementing PD
101 as well as its Memorandum Circular No. 76-25(a), the BOT itself has declared:

In line with its duty to rationalize the transport industry, the Board
shall. from time to time, re- study the public need for public
utilities in any area in the Philippines for the purpose of reevaluating the policies. (p. 64, Rollo)

WHEREFORE. the petition is hereby DISMISSED for lack of merit. The questioned
orders of the then Board of Transportation are AFFIRMED.
SO ORDERED.

Thus, the respondents correctly argue that "as the need of the public changes and
oscillates with the trends of modern life, so must the Memo Orders issued by
respondent jibe with the dynamic and flexible standards of public needs. ...
Respondent Board is not supposed to 'tie its hands' on its issued Memo Orders
should public interest demand otherwise" (Answer of private respondents, p. 121,
Rollo).
The fate of the private respondent's petitions is initially for the Board to determine.
From the records of the case, acceptance of the respondent's applications appears
to be a question correctly within the discretion of the respondent Board to decide. As
a rule, where the jurisdiction of the BOT to take cognizance of an application for
legalization is settled, the Court enjoins the exercise thereof only when there is
fraud, abuse of discretion or error of law. Furthermore, the court does not interfere,
as a rule, with administrative action prior to its completion or finality . It is only after
judicial review is no longer premature that we ascertain in proper cases whether the
administrative findings are not in violation of law, whether they are free from fraud
or imposition and whether they find substantial support from the evidence.
Finally, with respect to the last issue raised by the petitioners alleging the denial of
due process by respondent Board in granting the provisional permits to the private
respondents and in taking cognizance of their applications for legalization without
notice and hearing, suffice it to say that PD 101 does not require such notice or
hearing for the grant of temporary authority . The provisional nature of the authority
and the fact that the primary application shall be given a full hearing are the
safeguards against its abuse. As to the applications for legalization themselves, the
Public Service Act does enjoin the Board to give notice and hearing before exercising
any of its powers under Sec. 16 thereof. However, the allegations that due process
has been denied are negated by the hearings set by the Board on the applications
as expressed in its orders resolving the petitions for special permits (Annexes G, H, I,
pp. 80-102, Rollo).
The Board stated:
The grounds involved in the petition are of first impression. It
cannot resolve the issue ex-parte. It needs to hear the views of
other parties who may have an interest, or whose interest may be
affected by any decision that this Board may take.
The Board therefore, decides to set the petition for hearing.
xxx xxx xxx
As to the required notice, it is impossible for the respondent Board to give personal
notice to all parties who may be interested in the matter, which parties are unknown
to it. Its aforementioned order substantially complies with the requirement. The
petitioners having been able to timely oppose the petitions in question, any lack of
notice is deemed cured.

[G.R. No. 137489. May 29, 2002]

COOPERATIVE
DEVELOPMENT
AUTHORITY, petitioner,
vs. DOLEFIL
AGRARIAN
REFORM
BENEFICIARIES
COOPERATIVE,
INC.,
ESMERALDO A. DUBLIN, ALICIA SAVAREZ, EDNA URETA, ET
AL., respondents.
DECISION
DE LEON, JR. J.
At the core of the instant petition for review on certiorari of the Decision[1] of
the Court of Appeals, 13th Division, in CA-G.R. SP. No. 47933 promulgated on
September 9, 1998 and its Resolution [2] dated February 9, 1999 is the issue of
whether or not petitioner Cooperative Development Authority (CDA for brevity) is
vested with quasi-judicial authority to adjudicate intra-cooperative disputes.
The record shows that sometime in the later part of 1997, the CDA received
from certain members of the Dolefil Agrarian Reform Beneficiaries Cooperative, Inc.
(DARBCI for brevity), an agrarian reform cooperative that owns 8,860 hectares of
land in Polomolok, South Cotabato, several complaints alleging mismanagement
and/or misappropriation of funds of DARBCI by the then incumbent officers and
members of the board of directors of the cooperative, some of whom are herein
private respondents.
Acting on the complaints docketed as CDA-CO Case No. 97-011, CDA Executive
Director Candelario L. Verzosa, Jr. issued an order [3] dated December 8, 1997
directing the private respondents to file their answer within ten (10) days from
receipt thereof.
Before the private respondents could file their answer, however, CDA
Administrator Alberto P. Zingapan issued on December 15, 1997 an order, [4] upon the
motion of the complainants in CDA-CO Case No. 97-011, freezing the funds of
DARBCI and creating a management committee to manage the affairs of the said
cooperative.
On December 18, 1991, the private respondents filed a Petition
for Certiorari[5] with a prayer for preliminary injunction, damages and attorneys fees
against the CDA and its officers namely: Candelario L. Verzosa, Jr. and Alberto P.
Zingapan, including the DOLE Philippines Inc. before the Regional Trial Court (RTC for
brevity) of Polomolok, South Cotabato, Branch 39. The petition which was docketed

as SP Civil Case No. 25, primarily questioned the jurisdiction of the CDA to resolve
the complaints against the private respondents, specifically with respect to the
authority of the CDA to issue the freeze order and to create a management
committee that would run the affairs of DARBCI.
On February 24, 1998, CDA Chairman Jose C. Medina, Jr. issued an order [6] in
CDA-CO Case No. 97-011 placing the private respondents under preventive
suspension, hence, paving the way for the newly-created management
committee[7] to assume office on March 10, 1998.
On March 27, 1998, the RTC of Polomolok, South Cotabato, Branch 39, issued a
temporary restraining order[8] (TRO), initially for seventy-two (72) hours and
subsequently extended to twenty (20) days, in an Order dated March 31, 1998. The
temporary restraining order, in effect, directed the parties to restore status
quo ante, thereby enabling the private respondents to reassume the management of
DARBCI.
The CDA questioned the propriety of the temporary restraining order issued by
the RTC of Polomolok, South Cotabato on March 27, 1998 through a petition for
certiorari before the Court of Appeals, 12 th Division, which was docketed as CA-G.R.
SP No. 47318.
On April 21, 1998, the Court of Appeals, 12 th Division, issued a temporary
restraining order[9] in CA-G.R. SP No. 47318 enjoining the RTC of Polomolok, South
Cotabato, Branch 39, from enforcing the restraining order which the latter court
issued on March 27, 1998, and ordered that the proceedings in SP Civil Case No. 25
be held in abeyance.

With the issuance of the two (2) restraining orders by the Court of Appeals,
13th Division, and the RTC of Polomolok, South Cotabato, Branch 39, on June 10 and
11, 1998, respectively, the scheduled special general assembly and the election of
officers and members of the board of directors of DARBCI on June 14, 1998 did not
take place.
Nevertheless, on July 12, 1998, the majority of the 7,511 members of DARBCI,
on their own initiative, convened a general assembly and held an election of the
members of the board of directors and officers of the cooperative, thereby
effectively replacing the private respondents. Hence, the private respondents filed a
Twin Motions for Contempt of Court and to Nullify Proceedings [15] with the Court of
Appeals in CA-G.R. SP No. 47933.
On September 9, 1998 the Court of Appeals, 13 th Division, promulgated its
subject appealed Decision[16] granting the petition in CA-G.R. SP No. 47933, the
dispositive portion of which reads:
Wherefore, the foregoing considered, the Petition is hereby GRANTED. The Orders of
the respondent Cooperative Development Authority in CDA-CO case No. 97-011
dated 08 December 1997, 15 December 1997, 26 January 1998, 24 February 1998,
03 March 1998, and the Resolution dated 26 May 1998, are hereby declared NULL
AND VOID and of no legal force and effect.
Further, the respondents are hereby ORDERED to perpetually CEASE AND DESIST
from taking any further proceedings in CDA-CO Case No. 97-011.

Consequently, the CDA continued with the proceedings in CDA-CO Case No. 97011. On May 26, 1998 CDA Administrator Arcadio S. Lozada issued a
resolution[10] which directed the holding of a special general assembly of the
members of DARBCI and the creation of an ad hoc election committee to supervise
the election of officers and members of the board of directors of DARBCI scheduled
on June 14, 1998.

Lastly, the respondent CDA is hereby ORDERED to REINSTATE the Board of Directors
of DARBCI who were ousted by virtue of the questioned Orders, and to RESTORE
the status quo prior to the filing of CDA-CO Case No. 97-011.

The said resolution of the CDA, issued on May 26, 1998 prompted the private
respondents to file on June 8, 1998 a Petition for Prohibition [11] with a prayer for
preliminary mandatory injunction and temporary restraining order with the Court of
Appeals, 13th Division, which was docketed as CA-G.R. SP No. 47933. On June 10,
1998, the appellate court issued a resolution [12] restraining the CDA and its
administrator, Arcadio S. Lozada, the three (3) members of the ad hoc election
committee or any and all persons acting in their behalf from proceeding with the
election of officers and members of the board of directors of DARBCI scheduled on
June 14, 1998.

The CDA filed a motion for reconsideration[17] of the Decision in CA-G.R. SP No.
47933 but it was denied by the Court of Appeals in its assailed Resolution [18] dated
February 9, 1999, thus:

Incidentally, on the same date that the Court of Appeals issued a temporary
restraining order in CA-G.R. SP No. 47933 on June 10, 1998, a corporation by the
name of Investa Land Corporation (Investa for brevity) which allegedly executed a
Lease Agreement with Joint Venture with DARBCI filed a petition [13] with the RTC of
Polomolok, South Cotabato, Branch 39, docketed as SP Civil Case No. 28, essentially
seeking the annulment of orders and resolutions issued by the CDA in CDA-CO Case
No. 97-011 with a prayer for temporary restraining order and preliminary
injunction. On the following day, June 11, 1998, the trial court issued a temporary
restraining order[14] enjoining the respondents therein from proceeding with the
scheduled special general assembly and the elections of officers and members of
the board of directors of DARBCI on June 14, 1998. Thereafter, it also issued a writ
of preliminary injunction.

SO ORDERED.

WHEREFORE, the Motion for Reconsideration is hereby DENIED for being patently
without merit.
MOREOVER, acting on petitioners Twin Motion, and in view of the Decision in this
case dated 09, September 1998, the tenor of which gives it legal effect nunc pro
tunc. We therefore hold the 12 July 1998
election of officers, the resolutions passed during the said assembly, and the
subsequent oath-taking of the officers elected therein, and all actions taken during
the said meeting, being in blatant defiance of a valid restraining order issued by this
Court, to be NULL AND VOID AB INITIO AND OF NO LEGAL FORCE AND EFFECT.
FURTHERMORE, the private respondents are hereby given thirty (30) days from
receipt of this Resolution within which to explain in writing why they should not be
held in contempt of this Court for having openly defied the restraining order dated
10 July 1998. The Hon. Jose C. Medina of the CDA is given a like period to explain in
writing why he should not be cited in contempt for having administered the oath of
the Board of Officers pending the effectivity of the restraining order. The
respondent Arcadio S. Lozada, Administrator of the CDA, is likewise given the same

period to explain why he should not be held in contempt for issuing a resolution on
21 July 1998 validating the proceedings of the assembly, and another resolution on
28 August 1998 confirming the election of the officers thereof.
SO ORDERED.
Hence, the instant petition [19] for review which raises the following assignments
of error:
I
THE HONORABLE COURT OF APPEALS, IN NULLIFYING THE ORDERS AND
RESOLUTIONS OF THE COOPERATIVE DEVELOPMENT AUTHORITY IN CDA CO CASE
NO. 97-011, DECIDED A QUESTION OF SUBSTANCE THAT IS NOT IN ACCORD WITH
LAW AND APPLICABLE DECISIONS OF THE SUPREME COURT.
II
THE HONORABLE COURT OF APPEALS ERRED IN NOT APPLYING THE RULE ON
FORUM-SHOPPING.
III
THE HONORABLE COURT OF APPEALS ERRED IN RENDERING A DECISION ON THE
BASIS OF PURE CONJECTURES AND SURMISES AND HAS DEPARTED FROM THE
ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHICH CALL FOR AN
EXERCISE OF THIS HONORABLE COURTS SUPERVISION.
Petitioner CDA claims that it is vested with quasi-judicial authority to adjudicate
cooperative disputes in view of its powers, functions and responsibilities under
Section 3 of Republic Act No. 6939. [20] The quasi-judicial nature of its powers and
functions was confirmed by the Department of Justice, through the then Acting
Secretary of Justice Demetrio G. Demetria, in DOJ Opinion No. 10, Series of 1995,
which was issued in response to a query of the then Chairman Edna E. Aberina of
the CDA, to wit:
Applying the foregoing, the express powers of the CDA to cancel certificates of
registration of cooperatives for non-compliance with administrative requirements or
in cases of voluntary dissolution under Section 3(g), and to mandate and conciliate
disputes within a cooperative or between cooperatives under Section 8 of R.A. No.
6939, may be deemed quasi-judicial in nature.
The reason is that in the performance of its functions such as cancellation of
certificate of registration, it is necessary to establish non-compliance or violation of
administrative requirement. To do so, there arises an indispensable need to hold
hearings, investigate or ascertain facts that possibly constitute non-compliance or
violation and, based on the facts investigated or ascertained, it becomes incumbent
upon the CDA to use its official discretion whether or not to cancel a cooperatives
certificate of registration, thus, clearly revealing the quasi-judicial nature of the said
function. When the CDA acts as a conciliatory body pursuant to Section 8 of R.A. No.
6939, it in effect performs the functions of an arbitrator. Arbitrators are by the
nature of their functions act in quasi-judicial capacity xxx.

The quasi-judicial nature of the foregoing functions is bolstered by the provisions of

Sections 3(o) of R.A. No. 6939 which grants CDA on (sic) the exercise of other
functions as may be necessary to implement the provisions of cooperative laws, the
power to summarily punish for direct contempt any person guilty of misconduct in
the presence thereof who seriously interrupts any hearing or inquiry with a fine or
imprisonment prescribed therein, a power usually granted to make effective the
exercise of quasi-judicial functions.[21]
Likewise, the Office of the President, through the then Deputy Executive
Secretary, Hon. Leonardo A. Quisumbing, espoused the same view in the case
of Alberto Ang, et al. v. The Board of Directors, Metro Valenzuela Transport Services
Cooperative, Inc., O.P. Case No. 51111, when it declared and ruled that:
Concededly, Section 3(o) of R.A. No. 6939 and Article 35(4) of R.A. 6938, may not be
relied upon by the CDA as authority to resolve internal conflicts of cooperatives, they
being general provisions. Nevertheless, this does not preclude the CDA from
resolving the instant case. The assumption of jurisdiction by the CDA on matters
which partake of cooperative disputes is a logical, necessary and direct consequence
of its authority to register cooperatives. Before a cooperative can acquire juridical
personality, registration thereof is a condition sine qua non, and until and unless the
CDA issues a certificate of registration under its official seal, any cooperative for that
matter cannot be considered as having been legally constituted. To our mind, the
grant of this power impliedly carries with it the visitorial power to entertain
cooperative conflicts, a lesser power compared to its authority to cancel registration
certificates when, in its opinion, the cooperative fails to comply with some
administrative requirements (Sec. 2(g), R.A. No. 6939). Evidently, respondentsappellants claim that the CDA is limited to conciliation and mediation proceedings is
bereft of legal basis. Simply stated, the CDA, in the exercise of such other function
and in keeping with the mandate of the law, could render the decisions and/or
resolutions as long as they pertain to the internal affairs of the public service
cooperative, such as the rights and privileges of its members, the rules and
procedures for meetings of the general assembly, Board of Directors and
committees, election and qualifications of officers, directors and committee
members, and allocation and distribution of surpluses.[22]
The petitioner avers that when an administrative agency is conferred with
quasi-judicial powers and functions, such as the CDA, all controversies relating to
the subject matter pertaining to its specialization are deemed to be covered within
the jurisdiction of said administrative agency. The courts will not interfere in matters
which are addressed to the sound discretion of government agencies entrusted with
the regulation of activities undertaken upon their special technical knowledge and
training.
The petitioner added that the decision in the case of CANORECO v. Hon. Ruben
D. Torres,[23] affirmed the adjudicatory powers and functions of CDA contrary to the
view held by the Court of Appeals, when the Supreme Court upheld therein the
ruling of the CDA annulling the election of therein respondents Norberto Ochoa, et
al. as officers of the Camarines Norte Electric Cooperative.
Petitioner CDA also claims that herein private respondents are guilty of forumshopping by filing cases in three (3) different fora seeking the same relief. Petitioner
pointed out that private respondents originally filed a petition with a prayer for
preliminary injunction dated December 17, 1997 before the RTC of Polomolok, South
Cotabato which was docketed as SP Civil Case No. 25. Subsequently, the same
private respondents filed another petition with a prayer for preliminary injunction
with the Court of Appeals, 13th Division, docketed as CA-G.R. SP No.

47933. Thereafter, Investa, also represented by the same counsel of private

respondents, Atty. Reni Dublin, filed another case with the RTC of Polomolok, South
Cotabato, docketed as SP Civil Case No. 28, likewise praying, among others, for the
issuance of preliminary injunction and an application for a temporary restraining
order. In effect, petitioner was confronted with three (3) TROs issued in three (3)
separate actions enjoining it from enforcing its orders and resolutions in CDA-CO
Case No. 97-011.
In their Comment,[24] private respondents contend that the instant petition for
review on certiorari filed by CDA Administrator Alberto Zingapan should be
dismissed and struck down as a mere scrap of paper for lack of authority to file the
same from the Office of the Solicitor General and for having been filed without
approval from the Board of Administrators of CDA.
The private respondents also contend that, contrary to the claim of the
petitioner, the powers, functions and responsibilities of the CDA show that it was
merely granted regulatory or supervisory powers over cooperatives in addition to its
authority to mediate and conciliate between parties involving the settlement of
cooperative disputes.
Private respondents denied that they are guilty of forum-shopping. They
clarified that the case filed with the RTC of Polomolok, South Cotabato, Branch 39,
docketed as SP Civil Case No. 25, was a petition forcertiorari. On the other hand, the
case that they filed with the Court of Appeals, 13th Division, docketed therein as CAG.R. SP No. 47933, was a petition for prohibition to stop the holding of a special
general assembly and the election of a new set of DARBCI officers on June 14, 1998
as ordered by the petitioner CDA on May 26, 1998, which events have not yet
occurred at the time the petition for certiorari was filed by the private respondents
with the RTC of Polomolok, South Cotabato, Branch 39.
Private respondents also denied that the filing by Investa of the petition for the
declaration of nullity of the orders and resolutions of petitioner CDA, with a prayer
for temporary restraining order with the RTC of Polomolok, South Cotabato, docketed
therein as SP Civil Case No. 28, constituted forum-shopping on their part. They
pointed out that Investa has a separate juridical personality from DARBCI and that,
contrary to the claim of petitioner CDA, the former is not represented by the lawyer
of the private respondents.
By way of reply,[25] petitioner claims that Atty. Rogelio P. Madriaga was properly
deputized, among other lawyers, as Special Attorney by the Office of the Solicitor
General to represent the CDA in the instant petition pursuant to the letter [26] of
Assistant Solicitor General Carlos N. Ortega addressed to CDA Chairman Jose C.
Medina, Jr. dated April 8, 1999. Likewise, the filing of the instant petition was an
official act of CDA Administrator Alberto P. Zingapan who was duly appointed by the
CDA Board of Administrators as chairman of the Oversight Committee on Legal
Matters per Resolution No. 201, S-1998.[27]
Meanwhile, on March 26, 1999, certain persons alleging to be incumbent
officers and members of the board of directors of DARBCI filed a motion to intervene
in the instant petition which was granted by this Court per its Resolution dated July
7, 1999.[28] In the same resolution, this Court required both petitioner CDA and the
private respondents in this case to file their respective comments to the petition-inintervention within ten (10) days from notice, but both parties failed to comply to do
so up to the present.
We note that the instant petition for review on certiorari suffers from a basic
infirmity for lack of the requisite imprimatur from the Office of the Solicitor General,
hence, it is dismissible on that ground. The general rule is that only the Solicitor
General can bring or defend actions on behalf of the Republic of the Philippines and

that actions filed in the name of the Republic, or its agencies and instrumentalities
for that matter, if not initiated by the Solicitor General, will be summarily dismissed.
[29]

The authority of the Office of the Solicitor General to represent the Republic of
the Philippines, its agencies and instrumentalities, is embodied under Section 35(1),
Chapter 12, Title III, Book IV of the Administrative Code of 1987 which provides that:
SEC. 35. Powers and Functions.The Office of the Solicitor General shall represent
the Government of the Philippines, its agencies and intrumentalities and its officials
and agents in any litigation, proceeding, investigation or matter requiring the
services of lawyers. When authorized by the President or head of the office
concerned, it shall also represent government owned or controlled
corporations. The Office of the Solicitor General shall constitute the law office of the
Government and, as such, shall discharge duties requiring the services of lawyers. It
shall have the following specific powers and functions:
(1)
Represent the Government in the Supreme Court and the Court of Appeals
in all criminal proceedings; represent the Government and its officers in the
Supreme Court, Court of Appeals, and all other courts or tribunals in all civil actions
and special proceedings in which the Government or any officer thereof in his official
capacity is a party.
The import of the above-quoted provision of the Administrative Code of 1987 is
to impose upon the Office of the Solicitor General the duty to appear as counsel for
the Government, its agencies and instrumentalites and its officials and agents
before the Supreme Court, the Court of Appeals, and all other courts and tribunals in
any litigation, proceeding, investigation or matter requiring the services of a
lawyer. Its mandatory character was emphasized by this Court in the case
of Gonzales v. Chavez,[30] thus:
It is patent that the intent of the lawmaker was to give the designated official, the
Solicitor General, in this case, the unequivocal mandate to appear for the
government in legal proceedings. Spread out in the laws creating the office is the
discernible intent which may be gathered from the term shall, which is invariably
employed, from Act No. 136 (1901) to the more recent Executive Order No. 292
(1987).
xxx

xxx

xxx

The decision of this Court as early as 1910 with respect to the duties of the
Attorney-General well applies to the Solicitor General under the facts of the present
case. The Court then declared:
In this jurisdiction, it is the duty of the Attorney General to perform the duties
imposed upon him by law and he shall prosecute all causes, civil and criminal, to
which the Government of the Philippine Islands, or any officer thereof, in his official
capacity, is a party xxx.
xxx

xxx

xxx

The Court is firmly convinced that considering the spirit and the letter of the law,
there can be no other logical interpretation of Sec. 35 of the Administrative Code

than that it is, indeed, mandatory upon the OSG to represent the Government of
the Philippines, its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of a lawyer.
As an exception to the general rule, the Solicitor General, in providing legal
representation for the government, is empowered under Section 35(8), Chapter 12,
Title III, Book IV of the Administrative Code of 1987 to deputize legal officers of
government departments, bureaus, agencies and offices to assist the Solicitor
General and appear or represent the Government in cases involving their respective
offices, brought before the courts and exercise supervision and control over such
legal officers with respect to such cases.
Petitioner claims that its counsel of record, Atty. Rogelio P. Madriaga, was
deputized by the Solicitor General to represent the CDA in the instant petition. To
prove its claim, the petitioner attached to its Reply to the Comment dated January
31, 2000, a photocopy of the alleged deputation letter [31] from the Office of the
Solicitor General signed by Hon. Carlos N. Ortega, Assistant Solicitor General,
addressed to CDA Chairman Jose C. Medina, Jr.
A close scrutiny of the alleged deputation letter from the Office of the Solicitor
General shows, however, that said counsel for the petitioner was only authorized to
appear as counsel in all civil cases in the lower courts (RTCs and MTCs) wherein the
CDA is a party-litigant. Likewise, the same letter appears to be dated April 8, 1999
while the Petition for Review on Certiorari filed by the petitioner was dated February
26, 1999. Clearly then, when the petition was filed with this Court on March 3, 1999,
Atty. Rogelio P. Madriaga was not yet deputized by the Office of the Solicitor General
to represent the CDA.
Even on the assumption that the alleged letter from the Office of the Solicitor
General was intended to validate or ratify the authority of counsel to represent the
petitioner in this case, the same contains certain conditions, one of which is that
petitioner shall submit to the Solicitor General, for review, approval and signature,
all important pleadings and motions, including motions to withdraw complaints or
appeals, as well as compromise agreements. Significantly, one of the major
pleadings filed subsequently by the petitioner in this case namely, the Reply to the
Respondents Comment on the Petition dated January 31, 2000, does not have any
indication that the same was previously submitted to the Office of the Solicitor
General for review or approval, much less bear the requisite signature of the
Solicitor General as required in the alleged deputation letter.
Nonetheless, in view of the novelty of the main issue raised in this petition
concerning the nature and scope of jurisdiction of the CDA in the settlement of
cooperative disputes as well as the long standing legal battle involving the
management of DARBCI between two (2) opposing factions that inevitably threatens
the very existence of one of the countrys major cooperatives, this Court has
decided to act on and determine the merits of the instant petition.
Section 3 of R.A. No. 6939
responsibilities of the CDA, thus:

enumerates

the

powers,

functions

and

(b) Develop and conduct management and training programs upon

request of cooperatives that will provide members of cooperatives
with the entrepreneurial capabilities, managerial expertise, and
technical skills required for the efficient operation of their
cooperatives and inculcate in them the true spirit of cooperativism
and provide, when necessary, technical and professional assistance to
ensure the viability and growth of cooperatives with special concern
for agrarian reform, fishery and economically depressed sectors;
(c) Support the voluntary organization and consensual development of
activities that promote cooperative movements and provide
assistance to wards upgrading managerial and technical expertise
upon request of the cooperatives concerned;
(d) Coordinate the effects of the local government units and the private
sector in the promotion, organization, and development of
cooperatives;
(e) Register all cooperatives and their federations and unions, including
their division, merger, consolidation, dissolution or liquidation. It shall
also register the transfer of all or substantially all of their assets and
liabilities and such other matters as may be required by the Authority;
(f) Require all cooperatives, their federations and unions to submit their
annual financial statements, duly audited by certified public
accountants, and general information sheets;
(g) Order the cancellation after due notice and hearing of the
cooperatives certificate of registration for non-compliance with
administrative requirements and in cases of voluntary dissolution;
(h) Assist cooperatives in arranging for financial and other forms of
assistance under such terms and conditions as are calculated to
strengthen their viability and autonomy;
(i) Establish extension offices as may be necessary and financially viable
to implement this Act. Initially, there shall be extension offices in the
Cities of Dagupan, Manila, Naga, Iloilo, Cebu, Cagayan de Oro and
Davao;
(j) Impose and collect reasonable fees and charges in connection with the
registration of cooperatives;
(k) Administer all grants and donations coursed through the Government
for cooperative development, without prejudice to the right of
cooperatives to directly receive and administer such grants and
donations upon agreement with the grantors and donors thereof;
(l) Formulate and adopt continuing policy initiatives consultation with the
cooperative sector through public hearing;
(m) Adopt rules and regulations for the conduct of its internal operations;

SEC. 3. Powers, Functions and Responsibilities.The Authority shall have the

following powers, functions and responsibilities:
(a) Formulate, adopt and implement integrated and comprehensive plans
and programs on cooperative development consistent with the
national policy on cooperatives and the overall socio-economic
development plan of the Government;

(n) Submit an annual report to the President and Congress on the state of
the cooperative movement;
(o) Exercise such other functions as may be necessary to implement the
provisions of the cooperative laws and, in the performance thereof,
the Authority may summarily punish for direct contempt any person
guilty of misconduct in the presence of the Authority which seriously

interrupts any hearing or inquiry with a fine of not more than five
hundred pesos (P500.00) or imprisonment of not more than ten (10)
days, or both. Acts constituting indirect contempt as defined under
Rule 71 of the Rules of Court shall be punished in accordance with the
said Rule.
It is a fundamental rule in statutory construction that when the law speaks in
clear and categorical language, there is no room for interpretation, vacillation or
equivocation there is only room for application. [32] It can be gleaned from the
above-quoted provision of R.A. No. 6939 that the authority of the CDA is to discharge
purely administrative functions which consist of policy-making, registration, fiscal
and technical assistance to cooperatives and implementation of cooperative
laws. Nowhere in the said law can it be found any express grant to the CDA of
authority to adjudicate cooperative disputes. At most, Section 8 of the same law
provides that upon request of either or both parties, the Authority shall mediate
and conciliate disputes with a cooperative or between cooperatives however, with a
restriction that if no mediation or conciliation succeeds within three (3) months
from request thereof, a certificate of non-resolution shall be issued by the
commission prior to the filing of appropriate action before the proper courts. Being
an administrative agency, the CDA has only such powers as are expressly granted to
it by law and those which are necessarily implied in the exercise thereof. [33]
Petitioner CDA, however, insists that its authority to conduct hearings or
inquiries and the express grant to it of contempt powers under Section 3,
paragraphs (g) and (o) of R. A. No. 6939, respectively, necessarily vests upon the
CDA quasi-judicial authority to adjudicate cooperative disputes. A review of the
records of the deliberations by both chambers of Congress prior to the enactment of
R.A. No. 6939 provides a definitive answer that the CDA is not vested with quasijudicial authority to adjudicate cooperative disputes. During the house deliberations
on the then House Bill No. 10787, the following exchange transpired:
MR. AQUINO (A.). The response of the sponsor is not quite clear to this humble
Representation. Let me just point out other provisions under this particular section,
which to the mind of this humble Representation appear to provide this proposed
Authority with certain quasi-judicial functions. Would I be correct in this
interpretation of paragraphs (f) and (g) under this section which state that among
the powers of the Authority are:
To administer the dissolution, disposal of assets and settlement of liabilities of any
cooperative that has been found to be inoperable, inactive or defunct.
To make appropriate action on cooperatives found to be in violation of any
provision
It appears to the mind of this humble Representation that the proposed Authority
may be called upon to adjudicate in these particular instances. Is it therefore
vested with quasi-judicial authority?
MR. ROMUALDO. No, Mr. Speaker. We have to resort to the courts, for instance, for
the dissolution of cooperatives. The Authority only administers once a cooperative
is dissolved. It is also the CDA which initiates actions against any group of persons
that may use the name of a cooperative to its advantage, that is, if the word
cooperative is merely used by it in order to advance its intentions, Mr. Speaker.

MR. AQUINO (A.). So, is the sponsor telling us that the adjudication will have to be
left to the courts of law?
MR. ROMUALDO. To the courts, Mr. Speaker.[34]
xxx

xxx

xxx

MR. ADASA. One final question, Mr. Speaker. On page 4, line 33, it seems that one
of the functions given to the Cooperative Development Authority is to recommend
the filing of legal charges against any officer or member of a cooperative accused of
violating the provisions of this Act, existing laws and cooperative by-laws and other
rules and regulations set forth by the government. Would this not conflict with the
function of the prosecuting fiscal?
MR. ROMUALDO. No, it will be the provincial fiscal that will file the case. The
Authority only recommends the filing of legal charges, that is, of course, after
preliminary investigation conducted by the provincial fiscal or the prosecuting arm of
the government.
MR. ADASA. Does the Gentleman mean to say that the Cooperative Development
Authority can take the place of the private complainant or the persons who are the
offended party if the latter would not pursue the case?
MR. ROMULDO. Yes, Mr. Speaker. The Authority can initiate even the filing of the
charges as embraced and defined on line 33 of page 4 of this proposed bill. [35]
xxx

xxx

xxx

MR. CHIONGBIAN. xxx. Under the same section, line 28, subparagraph (g) says that
the Authority can take appropriate action on cooperatives found to be violating any
provision of this Act, existing laws and cooperative by-laws, and other rules and
regulations set forth by the government by way of withdrawal of Authority
assistance, suspension of operation or cancellation of accreditation.
My question is: If a cooperative, whose officers are liable for wrongdoing, is found
violating any of the provisions of this Act, are we going to sacrifice the existence of
that cooperative just because some of the officers have taken advantage of their
positions and misused some of the funds? It would be very unfair for the Authority
to withdraw its assistance at the expense of the majority. It is not clear as to what
the liabilities of the members of these cooperatives are.
xxx

xxx

xxx

MR. ROMUALDO. Mr. Speaker, before this action may be taken by the Authority,
there will be due process. However, this provision is applicable in cases where the
cooperative as a whole violated the provisions of this Act as well as existing laws. In
this case, punitive actions may be taken against the cooperative as a body.
With respect to the officials, if they themselves should be punished, then Section (h)
of this chapter provides that legal charges shall be filed by the Cooperative
Development Authority.[36]

In like manner, the deliberations on Senate Bill No. 485, which was the
counterpart of House Bill No. 10787, yield the same legislative intent not to grant
quasi-judicial authority to the CDA as shown by the following discussions during the
period of amendments:
SEN. ALVAREZ. On page 3, between lines 5 and 6, if I may, insert the following as
one of the powers: CONDUCT INQUIRIES, STUDIES, HEARINGS AND INVESTIGATIONS
AND ISSUE ORDERS, DECISIONS AND CIRCULARS AS MAY BE NECESSARY TO
IMPLEMENT ALL LAWS, RULES AND REGULATIONS RELATING TO
COOPERATIVES. THE AGENCY MAY SUMMARILY PUNISH FOR CONTEMPT BY A FINE OF
NOT MORE THAN TWO HUNDRED PESOS (P200.00) OR IMPRISONMENT NOT
EXCEEDING TEN (10) DAYS, OR BOTH, ANY PERSONS GUILTY OF SUCH MISCONDUCT
IN THE PRESENCE OF THE AGENCY WHICH SERIOUSLY INTERRUPTS ANY HEARING OR
INVESTIGATION, INCLUDING WILFULL FAILURE OR REFUSAL, WITHOUT JUST CAUSE,
COMPLY WITH A SUMMONS, SUBPOENA, SUBPOENA DUCES TECUM, DECISION OR
ORDER, RULE OR REGULATION, OR, BEING PRESENT AT A HEARING OR
INVESTIGATION, REFUSES TO BE SWORN IN AS A WITNESS OR TO ANSWER
QUESTIONS OR TO FURNISH INFORMATION REQUIRED BY THE AGENCY. THE SHERIFF
AND/OR POLICE AGENCIES OF THE PLACE WHERE THE HEARING OR INVESTIGATION
IS CONDUCTED SHALL, UPON REQUEST OF THE AGENCY, ASSIST IT TO ENFORCE THE
PENALTY.
THE PRESIDENT. That is quite a long amendment. Does the Gentleman have a
written copy of his amendment, so that the Members will have an opportunity to go
over it and examine its implications?
Anyway, why do we not hold in abeyance the proposed amendment? Do we have
that?
xxx

xxx

xxx

SEN. ALVAREZ. Mr. President, this is almost an inherent power of a registering

body. With the tremendous responsibility that we have assigned to the Authority or
the agencyfor it to be able to function and discharge its mandateit will need this
authority.
SEN. AQUINO. Yes, Mr. President, conceptually, we do not like the agency to have
quasi-judicial powers. And, we are afraid that if we empower the agency to conduct
inquiries, studies, hearings and investigations, it might interfere in the autonomous
character of cooperatives. So, I am sorry Mr. President, we dont accept the
amendment.[37]
The decision to withhold quasi-judicial powers from the CDA is in accordance
with the policy of the government granting autonomy to cooperatives. It was noted
that in the past 75 years cooperativism failed to flourish in the Philippines. Of the
23,000 cooperatives organized under P.D. No. 175, only 10 to 15 percent remained
operational while the rest became dormant. The dismal failure of cooperativism in
the Philippines was attributed mainly to the stifling attitude of the government
toward cooperatives. While the government wished to help, it invariably wanted to
control.[38] Also, in its anxious efforts to push cooperativism, it smothered
cooperatives with so much help that they failed to develop self-reliance. As one
cooperative expert put it, The strong embrace of government ends with a kiss of
death for cooperatives. [39]

But then, acknowledging the role of cooperatives as instruments of national

development, the framers of the 1987 Constitution directed Congress under Article
XII, Section 15 thereof to create a centralized agency that shall promote the viability
and growth of cooperatives. Pursuant to this constitutional mandate, the Congress
approved on March 10, 1990 Republic Act No. 6939 which is the organic law creating
the Cooperative Development Authority. Apparently cognizant of the errors in the
past, Congress declared in an unequivocal language that the state shall maintain
the policy of non-interference in the management and operation of cooperatives. [40]
After ascertaining the clear legislative intent underlying R.A. No. 6939, effect
should be given to it by the judiciary. [41] Consequently, we hold and rule that the CDA
is devoid of any quasi-judicial authority to adjudicate intra-cooperative disputes and
more particularly disputes as regards the election of the members of the Board of
Directors and officers of cooperatives. The authority to conduct hearings or inquiries
and the power to hold any person in contempt may be exercised by the CDA only in
the performance of its administrative functions under R.A. No. 6939.
The petitioners reliance on the case of CANORECO is misplaced for the reason
that the central issue raised therein was whether or not the Office of the President
has the authority to supplant or reverse the resolution of an administrative agency,
specifically the CDA, that had long became final and on which issue we ruled in the
negative. In fact, this Court declared in the said case that the CDA has no
jurisdiction to adjudicate intra-cooperative disputes thus:[42]
xxx

xxx

xxx

Obviously there was a clear case of intra-cooperative dispute. Article 121 of the
Cooperative Code is explicit on how the dispute should be resolved; thus:
ART. 121. Settlement of Disputes. Disputes among members, officers, directors,
and committee members, and intra-cooperative disputes shall, as far as practicable,
be settled amicably in accordance with the conciliation or mediation mechanisms
embodied in the by-laws of the cooperative, and in applicable laws.
Should such a conciliation/mediation proceeding fail, the matter shall be settled in a
court of competent jurisdiction.
Complementing this Article is Section 8 of R.A. No. 6939, which provides:
SEC. 8. Mediation and Conciliation. Upon request of either or both or both parties,
the [CDA] shall mediate and conciliate disputes with the cooperative or between
cooperatives: Provided, That if no mediation or conciliation succeeds within three (3)
months from request thereof, a certificate of non-resolution shall be issued by the
request thereof, a certificate of non-resolution shall be issued by the commission
prior to the filing of appropriate action before the proper courts.
Likewise, we do not find any merit in the allegation of forum-shopping against
the private respondents. Forum-shopping exists where the elements of litis
pendentia are present or where a final judgment in one case will amount to res
judicata in the other.[43] The requisites for the existence of litis pendentia, in turn, are
(1) identity of parties or at least such representing the same interest in both actions;
(2) identity of rights asserted as prayed for, the relief being founded on the same
facts; and (3) the identity in both cases is such that the judgment that may be
rendered in the pending case, regardless of which party is successful, would amount
to res judicata to the other case.[44]

While there may be identity of parties between SP Civil Case No. 25 filed with
the RTC of Polomolok, South Cotabato, Branch 39, and CA-G.R. SP No. 47933 before
the Court of Appeals, 13th Division, the two (2) other requisites are not present. The
Court of Appeals correctly observed that the case filed with the RTC of Polomolok,
South Cotabato was a petition for certiorari assailing the orders of therein
respondent CDA for having been allegedly issued without or in excess of
jurisdiction. On the other hand, the case filed with the Court of Appeals was a
petition for prohibition seeking to restrain therein respondent from further
proceeding with the hearing of the case. Besides, the filing of the petition for
prohibition with the Court of Appeals was necessary after the CDA issued the Order
dated May 26, 1998 which directed the holding of a special general assembly for
purposes of conducting elections of officers and members of the board of DARBCI
after the Court of Appeals, 12th Division, in CA-G.R. SP No. 47318 issued a temporary
restraining order enjoining the proceedings in Special Civil Case No. 25 and for the
parties therein to maintain the status quo. Under the circumstances, the private
respondents could not seek immediate relief before the trial court and hence, they
had to seek recourse before the Court of Appeals via a petition for prohibition with a
prayer for preliminary injunction to forestall the impending damage and injury to
them in view of the order issued by the petitioner on May 26, 1998.
The filing of Special Civil Case No. 28 with the RTC of Polomolok, South
Cotabato does not also constitute forum-shopping on the part of the private
respondents. Therein petitioner Investa, which claims to have a subsisting lease
agreement and a joint venture with DARBCI, is an entity whose juridical personality
is separate and distinct from that of private respondent cooperative or herein
individual private respondents and that they have totally different interests in the
subject matter of the case. Moreover, it was incorrect for the petitioner to charge
the private respondents with forum-shopping partly based on its erroneous claim
that DARBCI and Investa were both represented by the same counsel. A charge of
forum-shopping may not be anchored simply on the fact that the counsel for
different petitioners in two (2) cases is one and the same. [45] Besides, a review of the
records of this case shows that the counsel of record of Investa in Special Civil Case
No. 28 is a certain Atty. Ignacio D. Debuque, Jr. and not the same counsel
representing the private respondents.[46]
Anent the petition-in-intervention, the intervenors aver that the Resolution of
the Court of Appeals dated February 9, 1999 in CA-G.R. SP No. 47933 denying the
motion for reconsideration of herein petitioner CDA also invalidated the election of
officers and members of the board of directors of DARBCI held during the special
general assembly on July 12, 1998, thus adversely affecting their substantial rights
including their right to due process. They claim that the object of the order issued
by the appellate court on June 10, 1998 was to restrain the holding of the general
assembly of DARBCI as directed in the order of CDA Administrator Arcadio Lozada
dated May 26, 1998. In compliance with the said order of the Court of Appeals, no
general assembly was held on June 14, 1998. However, due to the grave concern
over the alleged tyrannical administration and unmitigated abuses of herein private
respondents, the majority of the members of DARBCI, on their own initiative and in
the exercise of their inherent right to assembly under the law and the 1987
Constitution, convened a general assembly on July 12, 1998. On the said occasion,
the majority of the members of DARBCI unanimously elected herein petitioners-inintervention as new officers and members of the board of directors of DARBCI, [47] and
thereby resulting in the removal of the private respondents from their positions in
DARBCI.
Petitioners-in-intervention pointed out that the validity of the general assembly
held on July 12, 1998 was never raised as an issue in CA-G.R. SP No. 47933. The
petitioners-in-intervention were not even ordered by the Court of Appeals to file their

comment on the Twin Motions For Contempt of Court and to Nullify Proceedings
filed by the private respondents on July 29, 1998.
As earlier noted, the Court of Appeals issued a temporary restraining order [48] in
CA-G.R. SP No. 47933 on June 10, 1998, the pertinent portion of which reads:
Meanwhile, respondents or any and all persons acting in their behalf and stead are
temporarily restrained from proceeding with the election of officers and members of
the board of directors of the Dolefil Agrarian Reform Beneficiaries Cooperative, Inc.
scheduled on June 14, 1998 and or any other date thereafter.
It was also noted that as a consequence of the temporary restraining order
issued by the appellate court, the general assembly and the election of officers and
members of the board of directors of DARBCI, pursuant to the resolution issued by
CDA Administrator Arcadio S. Lozada, did not take place as scheduled on June 14,
1998. However, on July 12, 1998 the majority of the members of DARBCI, at their
own initiative, held a general assembly and elected a new set of officers and
members of the board of directors of the cooperative which resulted in the ouster of
the private respondents from their posts in the said cooperative.
The incident on July 12, 1998 prompted herein private respondents to file their
Twin Motions for Contempt of Court and to Nullify Proceedings on July 26, 1998. The
twin motions prayed, among others, that after due notice and hearing, certain
personalities, including the petitioners-in-intervention, be cited in indirect contempt
for their participation in the subject incident and for the nullification of the election
on July 12, 1998 for being illegal, contrary to the by-laws of the
cooperative and in defiance of the injunctive processes of the appellate court.
On September 9, 1998, the Court of Appeals, 13th Division, rendered a Decision
in CA-G.R. SP No. 47933 which declared the CDA devoid of quasi-judicial jurisdiction
to settle the dispute in CDA-CO Case No. 97-011 without however, taking any action
on the Twin Motions for Contempt of Court and to Nullify Proceedings filed by the
private respondents. As it turned out, it was only in its Resolution dated February 9,
1999 denying petitioners motion for reconsideration of the Decision in CA-G.R. SP
No. 47933 that the Court of Appeals, 13 th Division, acted on the Twin Motions for
Contempt of Court and to Nullify Proceedings by declaring as null and void the
election of the petitioners-in-intervention on July 12, 1998 as officers and members
of the board of directors of DARBCI.
We find, however, that the action taken by the Court of Appeals, 13 th Division,
on the Twin Motions for Contempt of Court and to Nullify Proceedings insofar as it
nullified the election of the officers and members of the Board of Directors of
DARBCI, violated the constitutional right of the petitioners-in-intervention to due
process. The requirement of due process is satisfied if the following conditions are
present, namely: (1) there must be a court or tribunal clothed with judicial power to
hear and determine the matter before it; (2) jurisdiction must be lawfully acquired
over the person of the defendant or over the property which is the subject of the
proceedings; (3) the defendant must be given an opportunity to be heard; and (4)
judgment must be rendered upon lawful hearing. [49] The appellate court should have
first required the petitioners-in-intervention to file their comment or opposition to
the said Twin Motions For Contempt Of Court And to Nullify Proceedings
which also refers to the elections held during the general assembly on July 12,
1998. It was precipitate for the appellate court to render judgment against the
petitioners-in-intervention in its Resolution dated February 9, 1999 without due
notice and opportunity to be heard. Besides, the validity of the general assembly
held on July 12, 1998 was not raised as an issue in CA-G.R. SP No. 47933.

WHEREFORE, judgment is hereby rendered as follows:

1.
The petition for review on certiorari is hereby DENIED for lack of merit. The
orders, resolutions, memoranda and any other acts rendered by petitioner
Cooperative Development Authority in CDA-CO Case No. 97-011 are hereby declared
null and void ab initio for lack of quasi-judicial authority of petitioner to adjudicate
intra-cooperative disputes; and the petitioner is hereby ordered to cease and desist
from taking any further proceedings therein; and
2.
In the interest of justice, the dispositive portion of the Resolution of the Court
of Appeals, dated February 9, 1999, in CA-G.R. SP No. 47933, insofar as it nullified
the elections of the members of the Board of Directors and Officers of DARBCI held
during the general assembly of the DARBCI members on July 12, 1998, is hereby SET
ASIDE.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 110120 March 16, 1994

LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS, HON. MANUEL JN. SERAPIO, Presiding Judge RTC,
Branch 127, Caloocan City, HON. MACARIO A. ASISTIO, JR., City Mayor of
Caloocan and/or THE CITY GOVERNMENT OF CALOOCAN,respondents.
Alberto N. Hidalgo and Ma. Teresa T. Oledan for petitioner.
The City Legal Officer & Chief, Law Department for Mayor Macario A. Asistio, Jr. and
the City Government of Caloocan.

ROMERO, J.:
The clash between the responsibility of the City Government of Caloocan to dispose
off the 350 tons of garbage it collects daily and the growing concern and sensitivity
to a pollution-free environment of the residents of Barangay Camarin, Tala Estate,
Caloocan City where these tons of garbage are dumped everyday is the hub of this
controversy elevated by the protagonists to the Laguna Lake Development Authority
(LLDA) for adjudication.
The instant case stemmed from an earlier petition filed with this Court by Laguna
Lake Development Authority (LLDA for short) docketed as G.R.
No. 107542 against the City Government of Caloocan, et al. In the Resolution of

November 10, 1992, this Court referred G.R. No. 107542 to the Court of Appeals for
appropriate disposition. Docketed therein as CA-G.R. SP
No. 29449, the Court of Appeals, in a decision 1 promulgated on January 29, 1993
ruled that the LLDA has no power and authority to issue a cease and desist order
enjoining the dumping of garbage in Barangay Camarin, Tala Estate, Caloocan City.
The LLDA now seeks, in this petition, a review of the decision of the Court of
Appeals.
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of Lourdes Parish,
Barangay Camarin, Caloocan City, filed a letter-complaint 2 with the Laguna Lake
Development Authority seeking to stop the operation of the 8.6-hectare open
garbage dumpsite in Tala Estate, Barangay Camarin, Caloocan City due to its
harmful effects on the health of the residents and the possibility of pollution of the
water content of the surrounding area.
On November 15, 1991, the LLDA conducted an on-site investigation, monitoring
and test sampling of the leachate 3 that seeps from said dumpsite to the nearby
creek which is a tributary of the Marilao River. The LLDA Legal and Technical
personnel found that the City Government of Caloocan was maintaining an open
dumpsite at the Camarin area without first securing an Environmental Compliance
Certificate (ECC) from the Environmental Management Bureau (EMB) of the
Department of Environment and Natural Resources, as required under Presidential
Decree No. 1586, 4 and clearance from LLDA as required under Republic Act No.
4850, 5 as amended by Presidential Decree No. 813 and Executive Order No. 927,
series of 1983. 6
After a public hearing conducted on December 4, 1991, the LLDA, acting on the
complaint of Task Force Camarin Dumpsite, found that the water collected from the
leachate and the receiving streams could considerably affect the quality, in turn, of
the receiving waters since it indicates the presence of bacteria, other than coliform,
which may have contaminated the sample during collection or handling. 7 On
December 5, 1991, the LLDA issued a Cease and Desist Order 8 ordering the City
Government of Caloocan, Metropolitan Manila Authority, their contractors, and other
entities, to completely halt, stop and desist from dumping any form or kind of
garbage and other waste matter at the Camarin dumpsite.
The dumping operation was forthwith stopped by the City Government of Caloocan.
However, sometime in August 1992 the dumping operation was resumed after a
meeting held in July 1992 among the City Government of Caloocan, the
representatives of Task Force Camarin Dumpsite and LLDA at the Office of
Environmental Management Bureau Director Rodrigo U. Fuentes failed to settle the
problem.
After an investigation by its team of legal and technical personnel on August 14,
1992, the LLDA issued another order reiterating the December 5, 1991, order and
issued an Alias Cease and Desist Order enjoining the City Government of Caloocan
from continuing its dumping operations at the Camarin area.
On September 25, 1992, the LLDA, with the assistance of the Philippine National
Police, enforced its Alias Cease and Desist Order by prohibiting the entry of all
garbage dump trucks into the Tala Estate, Camarin area being utilized as a
dumpsite.

Pending resolution of its motion for reconsideration earlier filed on September 17,
1992 with the LLDA, the City Government of Caloocan filed with the Regional Trial
Court of Caloocan City an action for the declaration of nullity of the cease and desist
order with prayer for the issuance of writ of injunction, docketed as Civil Case No. C15598. In its complaint, the City Government of Caloocan sought to be declared as
the sole authority empowered to promote the health and safety and enhance the
right of the people in Caloocan City to a balanced ecology within its territorial
jurisdiction. 9

Respondents City Government of Caloocan and Mayor Macario A. Asistio, Jr. filed on
November 12, 1992 a motion for reconsideration and/or to quash/recall the
temporary restraining order and an urgent motion for reconsideration alleging that ".
. . in view of the calamitous situation that would arise if the respondent city
government fails to collect 350 tons of garbage daily for lack of dumpsite (i)t is
therefore, imperative that the issue be resolved with dispatch or with sufficient
leeway to allow the respondents to find alternative solutions to this garbage
problem."

On September 25, 1992, the Executive Judge of the Regional Trial Court of Caloocan
City issued a temporary restraining order enjoining the LLDA from enforcing its
cease and desist order. Subsequently, the case was raffled to the Regional Trial
Court, Branch 126 of Caloocan which, at the time, was presided over by Judge
Manuel Jn. Serapio of the Regional Trial Court, Branch 127, the pairing judge of the
recently-retired presiding judge.

On November 17, 1992, the Court issued a Resolution 13 directing the Court of
Appeals to immediately set the case for hearing for the purpose of determining
whether or not the temporary restraining order issued by the Court should be lifted
and what conditions, if any, may be required if it is to be so lifted or whether the
restraining order should be maintained or converted into a preliminary injunction.

The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the ground,
among others, that under Republic Act No. 3931, as amended by Presidential Decree
No. 984, otherwise known as the Pollution Control Law, the cease and desist order
issued by it which is the subject matter of the complaint is reviewable both upon the
law and the facts of the case by the Court of Appeals and not by the Regional Trial
Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued an order consolidating Civil
Case No. C-15598 with Civil Case No. C-15580, an earlier case filed by the Task Force
Camarin Dumpsite entitled "Fr. John Moran, et al. vs. Hon. Macario Asistio." The
LLDA, however, maintained during the trial that the foregoing cases, being
independent of each other, should have been treated separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to dismiss,
issued in the consolidated cases an order 11 denying LLDA's motion to dismiss and
granting the issuance of a writ of preliminary injunction enjoining the LLDA, its agent
and all persons acting for and on its behalf, from enforcing or implementing its
cease and desist order which prevents plaintiff City of Caloocan from dumping
garbage at the Camarin dumpsite during the pendency of this case and/or until
further orders of the court.
On November 5, 1992, the LLDA filed a petition for certiorari, prohibition and
injunction with prayer for restraining order with the Supreme Court, docketed as G.R.
No. 107542, seeking to nullify the aforesaid order dated October 16, 1992 issued by
the Regional Trial Court, Branch 127 of Caloocan City denying its motion to dismiss.
12

The Court, acting on the petition, issued a Resolution on November 10, 1992
referring the case to the Court of Appeals for proper disposition and at the same
time, without giving due course to the petition, required the respondents to
comment on the petition and file the same with the Court of Appeals within ten (10)
days from notice. In the meantime, the Court issued a temporary restraining order,
effective immediately and continuing until further orders from it, ordering the
respondents: (1) Judge Manuel Jn. Serapio, Presiding Judge, Regional Trial Court,
Branch 127, Caloocan City to cease and desist from exercising jurisdiction over the
case for declaration of nullity of the cease and desist order issued by the Laguna
Lake Development Authority (LLDA); and (2) City Mayor of Caloocan and/or the City
Government of Caloocan to cease and desist from dumping its garbage at the Tala
Estate, Barangay Camarin, Caloocan City.

The Court of Appeals set the case for hearing on November 27, 1992, at 10:00 in the
morning at the Hearing Room, 3rd Floor, New Building, Court of Appeals. 14 After the
oral argument, a conference was set on December 8, 1992 at 10:00 o'clock in the
morning where the Mayor of Caloocan City, the General Manager of LLDA, the
Secretary of DENR or his duly authorized representative and the Secretary of DILG or
his duly authorized representative were required to appear.
It was agreed at the conference that the LLDA had until December 15, 1992 to finish
its study and review of respondent's technical plan with respect to the dumping of
its garbage and in the event of a rejection of respondent's technical plan or a failure
of settlement, the parties will submit within 10 days from notice their respective
memoranda on the merits of the case, after which the petition shall be deemed
submitted for resolution.15 Notwithstanding such efforts, the parties failed to settle
the dispute.
On April 30, 1993, the Court of Appeals promulgated its decision holding that: (1)
the Regional Trial Court has no jurisdiction on appeal to try, hear and decide the
action for annulment of LLDA's cease and desist order, including the issuance of a
temporary restraining order and preliminary injunction in relation thereto, since
appeal therefrom is within the exclusive and appellate jurisdiction of the Court of
Appeals under Section 9, par. (3), of Batas Pambansa Blg. 129; and (2) the Laguna
Lake Development Authority has no power and authority to issue a cease and desist
order under its enabling law, Republic Act No. 4850, as amended by P.D. No. 813 and
Executive Order
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598 and the preliminary
injunction issued in the said case was set aside; the cease and desist order of LLDA
was likewise set aside and the temporary restraining order enjoining the City Mayor
of Caloocan and/or the City Government of Caloocan to cease and desist from
dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City was lifted,
subject, however, to the condition that any future dumping of garbage in said area,
shall be in conformity with the procedure and protective works contained in the
proposal attached to the records of this case and found on pages 152-160 of
the Rollo, which was thereby adopted by reference and made an integral part of the
decision, until the corresponding restraining and/or injunctive relief is granted by the
proper Court upon LLDA's institution of the necessary legal proceedings.

Hence, the Laguna Lake Development Authority filed the instant petition for review
on certiorari, now docketed as G.R. No. 110120, with prayer that the temporary
restraining order lifted by the Court of Appeals be re-issued until after final
determination by this Court of the issue on the proper interpretation of the powers
and authority of the LLDA under its enabling law.
On July, 19, 1993, the Court issued a temporary restraining order 16 enjoining the
City Mayor of Caloocan and/or the City Government of Caloocan to cease and desist
from dumping its garbage at the Tala Estate, Barangay Camarin, Caloocan City,
effective as of this date and containing until otherwise ordered by the Court.
It is significant to note that while both parties in this case agree on the need to
protect the environment and to maintain the ecological balance of the surrounding
areas of the Camarin open dumpsite, the question as to which agency can lawfully
exercise jurisdiction over the matter remains highly open to question.
The City Government of Caloocan claims that it is within its power, as a local
government unit, pursuant to the general welfare provision of the Local Government
Code, 17 to determine the effects of the operation of the dumpsite on the ecological
balance and to see that such balance is maintained. On the basis of said contention,
it questioned, from the inception of the dispute before the Regional Trial Court of
Caloocan City, the power and authority of the LLDA to issue a cease and desist order
enjoining the dumping of garbage in the Barangay Camarin over which the City
Government of Caloocan has territorial jurisdiction.
The Court of Appeals sustained the position of the City of Caloocan on the theory
that Section 7 of Presidential Decree No. 984, otherwise known as the Pollution
Control law, authorizing the defunct National Pollution Control Commission to issue
an ex-parte cease and desist order was not incorporated in Presidential Decree No.
813 nor in Executive Order No. 927, series of
1983. The Court of Appeals ruled that under Section 4, par. (d), of Republic Act No.
4850, as amended, the LLDA is instead required "to institute the necessary legal
proceeding against any person who shall commence to implement or continue
implementation of any project, plan or program within the Laguna de Bay region
without previous clearance from the Authority."
The LLDA now assails, in this partition for review, the abovementioned ruling of the
Court of Appeals, contending that, as an administrative agency which was granted
regulatory and adjudicatory powers and functions by Republic Act No. 4850 and its
amendatory laws, Presidential Decree No. 813 and Executive Order No. 927, series
of 1983, it is invested with the power and authority to issue a cease and desist order
pursuant to Section 4 par. (c), (d), (e), (f) and (g) of Executive Order No. 927 series
of 1983 which provides, thus:
Sec. 4. Additional Powers and Functions. The authority shall have
the following powers and functions:
xxx xxx xxx
(c) Issue orders or decisions to compel compliance with the
provisions of this Executive Order and its implementing rules and
regulations only after proper notice and hearing.

(d) Make, alter or modify orders requiring the discontinuance of

pollution specifying the conditions and the time within which such
discontinuance must be accomplished.
(e) Issue, renew, or deny permits, under such conditions as it may
determine to be reasonable, for the prevention and abatement of
pollution, for the discharge of sewage, industrial waste, or for the
installation or operation of sewage works and industrial disposal
system or parts thereof.
(f) After due notice and hearing, the Authority may also revoke,
suspend or modify any permit issued under this Order whenever
the same is necessary to prevent or abate pollution.
(g) Deputize in writing or request assistance of appropriate
government agencies or instrumentalities for the purpose of
enforcing this Executive Order and its implementing rules and
regulations and the orders and decisions of the Authority.
The LLDA claims that the appellate court deliberately suppressed and totally
disregarded the above provisions of Executive Order No. 927, series of 1983, which
granted administrative quasi-judicial functions to LLDA on pollution abatement
cases.
In light of the relevant environmental protection laws cited which are applicable in
this case, and the corresponding overlapping jurisdiction of government agencies
implementing these laws, the resolution of the issue of whether or not the LLDA has
the authority and power to issue an order which, in its nature and effect was
injunctive, necessarily requires a determination of the threshold question: Does the
Laguna Lake Development Authority, under its Charter and its amendatory laws,
have the authority to entertain the complaint against the dumping of garbage in the
open dumpsite in Barangay Camarin authorized by the City Government of Caloocan
which is allegedly endangering the health, safety, and welfare of the residents
therein and the sanitation and quality of the water in the area brought about by
exposure to pollution caused by such open garbage dumpsite?
The matter of determining whether there is such pollution of the environment that
requires control, if not prohibition, of the operation of a business establishment is
essentially addressed to the Environmental Management Bureau (EMB) of the DENR
which, by virtue of Section 16 of Executive Order No. 192, series of 1987, 18 has
assumed the powers and functions of the defunct National Pollution Control
Commission created under Republic Act No. 3931. Under said Executive Order, a
Pollution Adjudication Board (PAB) under the Office of the DENR Secretary now
assumes the powers and functions of the National Pollution Control Commission with
respect to adjudication of pollution cases. 19
As a general rule, the adjudication of pollution cases generally pertains to the
Pollution Adjudication Board (PAB), except in cases where the special law provides
for another forum. It must be recognized in this regard that the LLDA, as a
specialized administrative agency, is specifically mandated under Republic Act No.
4850 and its amendatory laws to carry out and make effective the declared national
policy 20 of promoting and accelerating the development and balanced growth of the
Laguna Lake area and the surrounding provinces of Rizal and Laguna and the cities
of San Pablo, Manila, Pasay, Quezon and Caloocan 21 with due regard and adequate

provisions for environmental management and control, preservation of the quality of

human life and ecological systems, and the prevention of undue ecological
disturbances, deterioration and pollution. Under such a broad grant and power and
authority, the LLDA, by virtue of its special charter, obviously has the responsibility
to protect the inhabitants of the Laguna Lake region from the deleterious effects of
pollutants emanating from the discharge of wastes from the surrounding areas. In
carrying out the aforementioned declared policy, the LLDA is mandated, among
others, to pass upon and approve or disapprove all plans, programs, and projects
proposed by local government offices/agencies within the region, public
corporations, and private persons or enterprises where such plans, programs and/or
projects are related to those of the LLDA for the development of the region. 22
In the instant case, when the complainant Task Force Camarin Dumpsite of Our Lady
of Lourdes Parish, Barangay Camarin, Caloocan City, filed its letter-complaint before
the LLDA, the latter's jurisdiction under its charter was validly invoked by
complainant on the basis of its allegation that the open dumpsite project of the City
Government of Caloocan in Barangay Camarin was undertaken without a clearance
from the LLDA, as required under Section 4, par. (d), of Republic Act. No. 4850, as
amended by P.D. No. 813 and Executive Order No. 927. While there is also an
allegation that the said project was without an Environmental Compliance Certificate
from the Environmental Management Bureau (EMB) of the DENR, the primary
jurisdiction of the LLDA over this case was recognized by the Environmental
Management Bureau of the DENR when the latter acted as intermediary at the
meeting among the representatives of the City Government of Caloocan, Task Force
Camarin Dumpsite and LLDA sometime in July 1992 to discuss the possibility of
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then narrows down to the
following issue: Does the LLDA have the power and authority to issue a "cease and
desist" order under Republic Act No. 4850 and its amendatory laws, on the basis of
the facts presented in this case, enjoining the dumping of garbage in Tala Estate,
Barangay Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the City Government of
Caloocan to stop dumping its garbage in the Camarin open dumpsite found by the
LLDA to have been done in violation of Republic Act No. 4850, as amended, and
other relevant environment laws, 23 cannot be stamped as an unauthorized exercise
by the LLDA of injunctive powers. By its express terms, Republic Act No. 4850, as
amended by P.D. No. 813 and Executive Order No. 927, series of 1983, authorizes
the LLDA to "make, alter or modify order requiring the discontinuance or
pollution." 24 (Emphasis supplied) Section 4, par. (d) explicitly authorizes the LLDA
to makewhatever order may be necessary in the exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to issue and exparte cease and desist order" in a language, as suggested by the City Government
of Caloocan, similar to the express grant to the defunct National Pollution Control
Commission under Section 7 of P.D. No. 984 which, admittedly was not reproduced in
P.D. No. 813 and E.O. No. 927, series of 1983. However, it would be a mistake to
draw therefrom the conclusion that there is a denial of the power to issue the order
in question when the power "to make, alter or modify orders requiring the
discontinuance of pollution" is expressly and clearly bestowed upon the LLDA by
Executive Order No. 927, series of 1983.

Assuming arguendo that the authority to issue a "cease and desist order" were not
expressly conferred by law, there is jurisprudence enough to the effect that the rule
granting such authority need not necessarily be express. 25 While it is a fundamental
rule that an administrative agency has only such powers as are expressly granted to
it by law, it is likewise a settled rule that an administrative agency has also such
powers as are necessarily implied in the exercise of its express powers. 26 In the
exercise, therefore, of its express powers under its charter as a regulatory and quasijudicial body with respect to pollution cases in the Laguna Lake region, the authority
of the LLDA to issue a "cease and desist order" is, perforce, implied. Otherwise, it
may well be reduced to a "toothless" paper agency.
In this connection, it must be noted that in Pollution Adjudication Board v. Court of
Appeals, et al., 27 the Court ruled that the Pollution Adjudication Board (PAB) has the
power to issue an ex-parte cease and desist order when there is prima
facie evidence of an establishment exceeding the allowable standards set by the
anti-pollution laws of the country. The ponente, Associate Justice Florentino P.
Feliciano, declared:
Ex parte cease and desist orders are permitted by law and
regulations in situations like that here presented precisely because
stopping the continuous discharge of pollutive and untreated
effluents into the rivers and other inland waters of the Philippines
cannot be made to wait until protracted litigation over the ultimate
correctness or propriety of such orders has run its full course,
including multiple and sequential appeals such as those which
Solar has taken, which of course may take several years. The
relevant pollution control statute and implementing regulations
were enacted and promulgated in the exercise of that pervasive,
sovereign power to protect the safety, health, and general welfare
and comfort of the public, as well as the protection of plant and
animal life, commonly designated as the police power. It is a
constitutional commonplace that the ordinary requirements of
procedural due process yield to the necessities of protecting vital
public interests like those here involved, through the exercise of
police power. . . .
The immediate response to the demands of "the necessities of protecting vital public
interests" gives vitality to the statement on ecology embodied in the Declaration of
Principles and State Policies or the 1987 Constitution. Article II, Section 16 which
provides:
The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
harmony of nature.
As a constitutionally guaranteed right of every person, it carries the correlative duty
of non-impairment. This is but in consonance with the declared policy of the state
"to protect and promote the right to health of the people and instill health
consciousness among them." 28 It is to be borne in mind that the Philippines is party
to the Universal Declaration of Human Rights and the Alma Conference Declaration
of 1978 which recognize health as a fundamental human right. 29
The issuance, therefore, of the cease and desist order by the LLDA, as a practical
matter of procedure under the circumstances of the case, is a proper exercise of its

power and authority under its charter and its amendatory laws. Had the cease and
desist order issued by the LLDA been complied with by the City Government of
Caloocan as it did in the first instance, no further legal steps would have been
necessary.
The charter of LLDA, Republic Act No. 4850, as amended, instead of conferring upon
the LLDA the means of directly enforcing such orders, has provided under its Section
4 (d) the power to institute "necessary legal proceeding against any person who
shall commence to implement or continue implementation of any project, plan or
program within the Laguna de Bay region without previous clearance from the
LLDA."
Clearly, said provision was designed to invest the LLDA with sufficiently broad
powers in the regulation of all projects initiated in the Laguna Lake region, whether
by the government or the private sector, insofar as the implementation of these
projects is concerned. It was meant to deal with cases which might possibly arise
where decisions or orders issued pursuant to the exercise of such broad powers may
not be obeyed, resulting in the thwarting of its laudabe objective. To meet such
contingencies, then the writs of mandamus and injunction which are beyond the
power of the LLDA to issue, may be sought from the proper courts.

TRACEY, J.:
In the Court of First Instance of the city of Manila the defendant was charged within
a violation of paragraphs 70 and 83 of Circular No. 397 of the Insular Collector of
Customs, duly published in the Official Gazette and approved by the Secretary of
Finance and Justice.1 After a demurrer to the complaint of the lighter Maude, he was
moving her and directing her movement, when heavily laden, in the Pasig River, by
bamboo poles in the hands of the crew, and without steam, sail, or any other
external power. Paragraph 70 of Circular No. 397 reads as follows:
No heavily loaded casco, lighter, or other similar craft shall be permitted to
move in the Pasig River without being towed by steam or moved by other
adequate power.
Paragraph 83 reads, in part, as follows:
For the violation of any part of the foregoing regulations, the persons
offending shall be liable to a fine of not less than P5 and not more than
P500, in the discretion of the court.

Insofar as the implementation of relevant anti-pollution laws in the Laguna Lake

region and its surrounding provinces, cities and towns are concerned, the Court will
not dwell further on the related issues raised which are more appropriately
addressed to an administrative agency with the special knowledge and expertise of
the LLDA.

In this court, counsel for the appellant attacked the validity of paragraph 70 on two
grounds: First that it is unauthorized by section 19 of Act No. 355; and, second, that
if the acts of the Philippine Commission bear the interpretation of authorizing the
Collector to promulgate such a law, they are void, as constituting an illegal
delegation of legislative power.

WHEREFORE, the petition is GRANTED. The temporary restraining order issued by

the Court on July 19, 1993 enjoining the City Mayor of Caloocan and/or the City
Government of Caloocan from dumping their garbage at the Tala Estate, Barangay
Camarin, Caloocan City is hereby made permanent.

The Attorney-General does not seek to sustain the conviction but joins with the
counsel for the defense in asking for the discharge of the prisoner on the first
ground stated by the defense, that the rule of the Collector cited was unauthorized
and illegal, expressly passing over the other question of the delegation of legislative
power.

SO ORDERED.

By sections 1, 2, and 3 of Act No. 1136, passed April 29, 1904, the Collector of
Customs is authorized to license craft engaged in the lighterage or other exclusively
harbor business of the ports of the Islands, and, with certain exceptions, all vessels
engaged in lightering are required to be so licensed. Sections 5 and 8 read as
follows:
SEC. 5. The Collector of Customs for the Philippine Islands is hereby
authorized, empowered, and directed to promptly make and publish
suitable rules and regulations to carry this law into effect and to regulate
the business herein licensed.

G.R. No. 4349

September 24, 1908

THE UNITED STATES, plaintiff-appellee,

vs.
ANICETO BARRIAS, defendant-appellant.
Ortigas & Fisher for appellant.
Attorney-General Araneta for appellee.

SEC. 8. Any person who shall violate the provisions of this Act, or of any
rule or regulation made and issued by the Collector of Customs for the
Philippine Islands, under and by authority of this Act, shall be deemed
guilty of a misdemeanor, and upon conviction shall be punished by
imprisonment for not more than six months, or by a fine of not more than
one hundred dollars, United States currency, or by both such fine and
imprisonment, at the discretion of the court; Provided, That violations of
law may be punished either by the method prescribed in section seven
hereof, or by that prescribed in this section or by both.

Under this statute, which was not referred to on the argument, or in the original
briefs, there is no difficulty in sustaining the regulation of the Collector as coming
within the terms of section 5. Lighterage, mentioned in the Act, is the very business
in which this vessel was engaged, and when heavily laden with hemp she was
navigating the Pasig River below the Bridge of Spain, in the city of Manila. This spot
is near the mouth of the river, the docks whereof are used for the purpose of taking
on and discharging freight, and we entertain no doubt that it was in right sense a
part of the harbor, without having recourse to the definition of paragraph 8 of
Customs Administrative Circular No. 136, which reads as follows:
The limits of a harbor for the purpose of licensing vessels as herein
prescribed (for the lighterage and harbor business) shall be considered to
include its confluent navigable rivers and lakes, which are navigable during
any season of the year.
The necessity confiding to some local authority the framing, changing, and enforcing
of harbor regulations is recognized throughout the world, as each region and each a
harbor requires peculiar use more minute than could be enacted by the central
lawmaking power, and which, when kept within the proper scope, are in their nature
police regulations not involving an undue grant of legislative power.
The complaint in this instance was framed with reference, as its authority, to
sections 311 and 319 [19 and 311] at No. 355 of the Philippine Customs
Administrative Acts, as amended by Act Nos. 1235 and 1480. Under Act No. 1235,
the Collector is not only empowered to make suitable regulations, but also to "fix
penalties for violation thereof," not exceeding a fine of P500.
This provision of the statute does, indeed, present a serious question.
One of the settled maxims in constitutional law is, that the power conferred
upon the legislature to make laws can not be delegated by that department
to any body or authority. Where the sovereign power of the State has
located the authority, there it must remain; only by the constitutional
agency alone the laws must be made until the constitution itself is
changed. The power to whose judgment, wisdom, and patriotism this high
prerogative has been intrusted can not relieve itself of the responsibility by
choosing other agencies upon which the power shall be developed, nor can
its substitutes the judgment, wisdom, and patriotism and of any other body
for those to which alone the people have seen fit to confide this sovereign
trust. (Cooley's Constitutional limitations, 6th ed., p. 137.)
This doctrine is based on the ethical principle that such a delegated power
constitutes not only a right but a duty to be performed by the delegate by the
instrumentality of his own judgment acting immediately upon the matter of
legislation and not through the intervening mind of another. In the case of the
United States vs. Breen (40 Fed. Phil. Rep. 402), an Act of Congress allowing the
Secretary of War to make such rules and regulations as might be necessary to
protect improvements of the Mississipi River, and providing that a violation thereof
should constitute a misdemeanor, was sustained on the ground that the
misdemeanor was declared not under the delegated power of the Secretary of War,
but in the Act of Congress, itself. So also was a grant to him of power to prescribe
rules for the use of canals. (U.S. vs. Ormsbee, 74 Fed. Rep. 207.) but a law
authorizing him to require alteration of any bridge and to impose penalties for
violations of his rules was held invalid, as vesting in him upon a power exclusively

lodged in Congress (U.S. vs. Rider, 50 Fed. Rep., 406.) The subject is considered and
some cases reviewed by the Supreme Court of the United States, in re Kollock (165
U.S. 526), which upheld the law authorizing a commissioner of internal revenue to
designate and stamps on oleomargarine packages, an improper use of which should
thereafter constitute a crime or misdemeanor, the court saying (p. 533):
The criminal offense is fully and completely defined by the Act and the
designation by the Commissioner of the particular marks and brands to be
used was a mere matter of detail. The regulation was in execution of, or
supplementary to, but not in conflict with the law itself. . . .
In Massachusetts it has been decided that the legislature may delegate to the
governor and counsel the power to make pilot regulations. (Martin vs. Witherspoon
et al., 135 Mass. 175).
In the case of The Board of Harbor Commissioners of the Port of Eureka vs. Excelsior
Redwood Company (88 Cal. 491), it was ruled that harbor commissioners can not
impose a penalty under statues authorizing them to do so, the court saying:
Conceding that the legislature could delegate to the plaintiff the authority
to make rules and regulation with reference to the navigation of Humboldt
Bay, the penalty for the violation of such rules and regulations is a matter
purely in the hands of the legislature.
Having reached the conclusion that Act No. 1136 is valid, so far as sections 5 and 8
are concerned, and is sufficient to sustain this prosecution, it is unnecessary that we
should pass on the questions discussed in the briefs as to the extend and validity of
the other acts. The reference to them in the complaint is not material, as we have
frequently held that where an offense is correctly described in the complaint an
additional reference to a wrong statute is immaterial.
We are also of the opinion that none of the subsequent statutes cited operate to
repeal the aforesaid section Act No. 1136.
So much of the judgment of the Court of First Instance as convicts the defendant of
a violation of Acts Nos. 355 and 1235 is hereby revoked and is hereby convicted of a
misdemeanor and punished by a fine of 25 dollars, with costs of both instances. So
ordered.

G.R. No. L-45685

November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI

BANKING CORPORATION,petitioners,

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

LAUREL, J.:
This is an original action instituted in this court on August 19, 1937, for the
issuance of the writ of certiorariand of prohibition to the Court of First Instance of
Manila so that this court may review the actuations of the aforesaid Court of First
Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs.
Mariano Cu Unjieng, et al.", more particularly the application of the defendant
Mariano Cu Unjieng therein for probation under the provisions of Act No. 4221, and
thereafter prohibit the said Court of First Instance from taking any further action or
entertaining further the aforementioned application for probation, to the end that
the defendant Mariano Cu Unjieng may be forthwith committed to prison in
accordance with the final judgment of conviction rendered by this court in said case
(G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong and
Shanghai Banking Corporation, are respectively the plaintiff and the offended party,
and the respondent herein Mariano Cu Unjieng is one of the defendants, in the
criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng,
et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No.
41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of
the seventh branch of the Court of First Instance of Manila, who heard the
application of the defendant Mariano Cu Unjieng for probation in the aforesaid
criminal case.
The information in the aforesaid criminal case was filed with the Court of First
Instance of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai
Banking Corporation intervening in the case as private prosecutor. After a protracted
trial unparalleled in the annals of Philippine jurisprudence both in the length of time
spent by the court as well as in the volume in the testimony and the bulk of the
exhibits presented, the Court of First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to
indeterminate penalty ranging from four years and two months of prision
correccional to eight years of prision mayor, to pay the costs and with reservation of
civil action to the offended party, the Hongkong and Shanghai Banking Corporation.
Upon appeal, the court, on March 26, 1935, modified the sentence to an
indeterminate penalty of from five years and six months of prision correccional to
seven years, six months and twenty-seven days of prision mayor, but affirmed the
judgment in all other respects. Mariano Cu Unjieng filed a motion for reconsideration
and four successive motions for new trial which were denied on December 17, 1935,
and final judgment was accordingly entered on December 18, 1935. The defendant
thereupon sought to have the case elevated on certiorari to the Supreme Court of

the United States but the latter denied the petition forcertiorari in
November,
1936. This court, on
November 24, 1936, denied the petition subsequently
filed by the defendant for leave to file a second alternative motion for
reconsideration or new trial and thereafter remanded the case to the court of origin
for execution of the judgment.
The instant proceedings have to do with the application for probation filed by
the herein respondent Mariano Cu Unjieng on
November 27, 1936, before the
trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature.
Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is
innocent of the crime of which he was convicted, that he has no criminal record and
that he would observe good conduct in the future. The Court of First Instance of
Manila, Judge Pedro Tuason presiding, referred the application for probation of the
Insular Probation Office which recommended denial of the same June 18, 1937.
Thereafter, the Court of First Instance of Manila, seventh branch, Judge Jose O. Vera
presiding, set the petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the
granting of probation to the herein respondent Mariano Cu Unjieng. The private
prosecution also filed an opposition on April 5, 1937, alleging, among other things,
that Act No. 4221, assuming that it has not been repealed by section 2 of Article XV
of the Constitution, is nevertheless violative of section 1, subsection (1), Article III of
the Constitution guaranteeing equal protection of the laws for the reason that its
applicability is not uniform throughout the Islands and because section 11 of the
said Act endows the provincial boards with the power to make said law effective or
otherwise in their respective or otherwise in their respective provinces. The private
prosecution also filed a supplementary opposition on April 19, 1937, elaborating on
the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative
power to the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The
City Fiscal concurred in the opposition of the private prosecution except with respect
to the questions raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a
resolution with a finding that "las pruebas no han establecido de unamanera
concluyente la culpabilidad del peticionario y que todos los hechos probados no son
inconsistentes o incongrentes con su inocencia" and concludes that the herein
respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of
which he stands convicted by this court in G.R. No. 41200, but denying the latter's
petition for probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por las
circunstancias y la historia social que se han expuesto en el cuerpo de esta
resolucion, que hacen al peticionario acreedor de la misma, una parte de la
opinion publica, atizada por los recelos y las suspicacias, podria levantarse
indignada contra un sistema de probacion que permite atisbar en los
procedimientos ordinarios de una causa criminal perturbando la quietud y
la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones
enteramente differentes, en menoscabo del interes publico que demanda el
respeto de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an
exception to the resolution denying probation and a notice of intention to file a
motion for reconsideration. An alternative motion for reconsideration or new trial
was filed by counsel on July 13, 1937. This was supplemented by an additional
motion for reconsideration submitted on July 14, 1937. The aforesaid motions were

set for hearing on July 31, 1937, but said hearing was postponed at the petition of
counsel for the respondent Mariano Cu Unjieng because a motion for leave to
intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys
had just been filed with the trial court. Attorney Eulalio Chaves whose signature
appears in the aforesaid motion subsequently filed a petition for leave to withdraw
his appearance as amicus curiae on the ground that the motion for leave to
intervene as amici curiae was circulated at a banquet given by counsel for Mariano
Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without
mature deliberation and purely as a matter of courtesy to the person who invited me
(him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial
court for the issuance of an order of execution of the judgment of this court in said
case and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in
obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the motion
for leave to intervene as amici curiae aforementioned, asking that a date be set for
a hearing of the same and that, at all events, said motion should be denied with
respect to certain attorneys signing the same who were members of the legal staff
of the several counsel for Mariano Cu Unjieng. On August 10, 1937, herein
respondent Judge Jose O. Vera issued an order requiring all parties including the
movants for intervention as amici curiae to appear before the court on August 14,
1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the
hearing of his motion for execution of judgment in preference to the motion for leave
to intervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng,
he moved for the postponement of the hearing of both motions. The respondent
judge thereupon set the hearing of the motion for execution on August 21, 1937, but
proceeded to consider the motion for leave to intervene as amici curiae as in order.
Evidence as to the circumstances under which said motion for leave to intervene
as amici curiae was signed and submitted to court was to have been heard on
August 19, 1937. But at this juncture, herein petitioners came to this court on
extraordinary legal process to put an end to what they alleged was an interminable
proceeding in the Court of First Instance of Manila which fostered "the campaign of
the defendant Mariano Cu Unjieng for delay in the execution of the sentence
imposed by this Honorable Court on him, exposing the courts to criticism and
ridicule because of the apparent inability of the judicial machinery to make effective
a final judgment of this court imposed on the defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly suspended upon
the issuance of a temporary restraining order by this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs
of certiorari and prohibition, herein petitioners allege that the respondent judge has
acted without jurisdiction or in excess of his jurisdiction:
I. Because said respondent judge lacks the power to place respondent Mariano Cu
Unjieng under probation for the following reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine Legislature
is made to apply only to the provinces of the Philippines; it nowhere states
that it is to be made applicable to chartered cities like the City of Manila.

(2) While section 37 of the Administrative Code contains a proviso to the

effect that in the absence of a special provision, the term "province" may
be construed to include the City of Manila for the purpose of giving effect to
laws of general application, it is also true that Act No. 4221 is not a law of
general application because it is made to apply only to those provinces in
which the respective provincial boards shall have provided for the salary of
a probation officer.
(3) Even if the City of Manila were considered to be a province, still, Act No.
4221 would not be applicable to it because it has provided for the salary of
a probation officer as required by section 11 thereof; it being immaterial
that there is an Insular Probation Officer willing to act for the City of Manila,
said Probation Officer provided for in section 10 of Act No. 4221 being
different and distinct from the Probation Officer provided for in section 11 of
the same Act.
II. Because even if the respondent judge originally had jurisdiction to entertain the
application for probation of the respondent Mariano Cu Unjieng, he nevertheless
acted without jurisdiction or in excess thereof in continuing to entertain the motion
for reconsideration and by failing to commit Mariano Cu Unjieng to prison after he
had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's
application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by Act No.
4221 to the granting or denying of applications for probation.
(2) After he had issued the order denying Mariano Cu Unjieng's petition for
probation on June 28, 1937, it became final and executory at the moment
of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of said order
or to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu Unjieng is
innocent of the crime for which he was convicted by final judgment of this court,
which finding is not only presumptuous but without foundation in fact and in law,
and is furthermore in contempt of this court and a violation of the respondent's oath
of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to violate his duty,
which became imperative when he issued his order of June 28, 1937, denying the
application for probation, to commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and adequate
remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner
Hongkong and Shanghai Banking Corporation further contends that Act No. 4221 of
the Philippine Legislature providing for a system of probation for persons eighteen
years of age or over who are convicted of crime, is unconstitutional because it is

violative of section 1, subsection (1), Article III, of the Constitution of the Philippines
guaranteeing equal protection of the laws because it confers upon the provincial
board of its province the absolute discretion to make said law operative or otherwise
in their respective provinces, because it constitutes an unlawful and improper
delegation to the provincial boards of the several provinces of the legislative power
lodged by the Jones Law (section 8) in the Philippine Legislature and by the
Constitution (section 1, Art. VI) in the National Assembly; and for the further reason
that it gives the provincial boards, in contravention of the Constitution (section 2,
Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the
Court of First Instance of different provinces without uniformity. In another
supplementary petition dated September 14, 1937, the Fiscal of the City of Manila,
in behalf of one of the petitioners, the People of the Philippine Islands, concurs for
the first time with the issues raised by other petitioner regarding the
constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937,
further elaborated on the theory that probation is a form of reprieve and therefore
Act. No. 4221 is an encroachment on the exclusive power of the Chief Executive to
grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two
memorandums in which he contended that Act No. 4221 not only encroaches upon
the pardoning power to the executive, but also constitute an unwarranted delegation
of legislative power and a denial of the equal protection of the laws. On October 9,
1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General,
acting in behalf of the People of the Philippine Islands, and by counsel for the
petitioner, the Hongkong and Shanghai Banking Corporation, one sustaining the
power of the state to impugn the validity of its own laws and the other contending
that Act No. 4221 constitutes an unwarranted delegation of legislative power, were
presented. Another joint memorandum was filed by the same persons on the same
day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it
denies the equal protection of the laws and constitutes an unlawful delegation of
legislative power and, further, that the whole Act is void: that the Commonwealth is
not estopped from questioning the validity of its laws; that the private prosecution
may intervene in probation proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the constitutional question in
prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in their oral
argument and memorandums, challenge each and every one of the foregoing
proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts sufficient in law to warrant
the issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy sought by
the petitioners is the very same remedy prayed for by them before the trial
court and was still pending resolution before the trial court when the
present petition was filed with this court.
(3) That the petitioners having themselves raised the question as to the
execution of judgment before the trial court, said trial court has acquired
exclusive jurisdiction to resolve the same under the theory that its
resolution denying probation is unappealable.

(4) That upon the hypothesis that this court has concurrent jurisdiction with
the Court of First Instance to decide the question as to whether or not the
execution will lie, this court nevertheless cannot exercise said jurisdiction
while the Court of First Instance has assumed jurisdiction over the same
upon motion of herein petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in seeking to
deprive the trial court of its jurisdiction over the case and elevate the
proceedings to this court, should not be tolerated because it impairs the
authority and dignity of the trial court which court while sitting in the
probation cases is "a court of limited jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to resolve the
question submitted to and pending resolution by the trial court, the present
action would not lie because the resolution of the trial court denying
probation is appealable; for although the Probation Law does not
specifically provide that an applicant for probation may appeal from a
resolution of the Court of First Instance denying probation, still it is a
general rule in this jurisdiction that a final order, resolution or decision of an
inferior court is appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein
respondent Mariano Cu Unjieng being appealable, the same had not
become final and executory for the reason that the said respondent had
filed an alternative motion for reconsideration and new trial within the
requisite period of fifteen days, which motion the trial court was able to
resolve in view of the restraining order improvidently and erroneously
issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted that the
resolution of the trial court denying probation is not final and unappealable
when he presented his answer to the motion for reconsideration and agreed
to the postponement of the hearing of the said motion.
(9) That under the supposition that the order of the trial court denying
probation is not appealable, it is incumbent upon the accused to file an
action for the issuance of the writ ofcertiorari with mandamus, it appearing
that the trial court, although it believed that the accused was entitled to
probation, nevertheless denied probation for fear of criticism because the
accused is a rich man; and that, before a petition for certiorari grounded on
an irregular exercise of jurisdiction by the trial court could lie, it is
incumbent upon the petitioner to file a motion for reconsideration
specifying the error committed so that the trial court could have an
opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not appealable,
the trial court retains its jurisdiction within a reasonable time to correct or
modify it in accordance with law and justice; that this power to alter or
modify an order or resolution is inherent in the courts and may be exercise
either motu proprio or upon petition of the proper party, the petition in the
latter case taking the form of a motion for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is
appealable as respondent allege, said court cannot order execution of the

same while it is on appeal, for then the appeal would not be availing
because the doors of probation will be closed from the moment the accused
commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19
Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the respondents
maintain that Act No. 4221 is constitutional because, contrary to the allegations of
the petitioners, it does not constitute an undue delegation of legislative power, does
not infringe the equal protection clause of the Constitution, and does not encroach
upon the pardoning power of the Executive. In an additional memorandum filed on
the same date, counsel for the respondents reiterate the view that section 11 of Act
No. 4221 is free from constitutional objections and contend, in addition, that the
private prosecution may not intervene in probation proceedings, much less question
the validity of Act No. 4221; that both the City Fiscal and the Solicitor-General are
estopped from questioning the validity of the Act; that the validity of Act cannot be
attacked for the first time before this court; that probation in unavailable; and that,
in any event, section 11 of the Act No. 4221 is separable from the rest of the Act.
The last memorandum for the respondent Mariano Cu Unjieng was denied for having
been filed out of time but was admitted by resolution of this court and filed anew on
November 5, 1937. This memorandum elaborates on some of the points
raised by the respondents and refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various aspects of the
present case, we noted that the court below, in passing upon the merits of the
application of the respondent Mariano Cu Unjieng and in denying said application
assumed the task not only of considering the merits of the application, but of
passing upon the culpability of the applicant, notwithstanding the final
pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be
final judgment. While a probation case may look into the circumstances attending
the commission of the offense, this does not authorize it to reverse the findings and
conclusive of this court, either directly or indirectly, especially wherefrom its own
admission reliance was merely had on the printed briefs, averments, and pleadings
of the parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil.,
333, 337), and reiterated in subsequent cases, "if each and every Court of First
Instance could enjoy the privilege of overruling decisions of the Supreme Court,
there would be no end to litigation, and judicial chaos would result." A becoming
modesty of inferior courts demands conscious realization of the position that they
occupy in the interrelation and operation of the intergrated judicial system of the
nation.
After threshing carefully the multifarious issues raised by both counsel for the
petitioners and the respondents, this court prefers to cut the Gordian knot and take
up at once the two fundamental questions presented, namely, (1) whether or not the
constitutionality of Act No. 4221 has been properly raised in these proceedings; and
(2) in the affirmative, whether or not said Act is constitutional. Considerations of
these issues will involve a discussion of certain incidental questions raised by the
parties.
To arrive at a correct conclusion on the first question, resort to certain guiding
principles is necessary. It is a well-settled rule that the constitutionality of an act of
the legislature will not be determined by the courts unless that question is properly
raised and presented inappropriate cases and is necessary to a determination of the
case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirr
vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp.
780-782, 783.)

The question of the constitutionality of an act of the legislature is frequently

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

The writ of prohibition is an extraordinary judicial writ issuing out of a court of

superior jurisdiction and directed to an inferior court, for the purpose of preventing
the inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a
conflict in the cases, is that the merit of prohibition will not lie whether the inferior
court has jurisdiction independent of the statute the constitutionality of which is
questioned, because in such cases the interior court having jurisdiction may itself
determine the constitutionality of the statute, and its decision may be subject to
review, and consequently the complainant in such cases ordinarily has adequate
remedy by appeal without resort to the writ of prohibition. But where the inferior
court or tribunal derives its jurisdiction exclusively from an unconstitutional statute,
it may be prevented by the writ of prohibition from enforcing that statute. (50 C. J.,
670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365;
Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880],
79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields
[1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their
jurisdiction solely from Act No. 4221 which prescribes in detailed manner the
procedure for granting probation to accused persons after their conviction has
become final and before they have served their sentence. It is true that at common
law the authority of the courts to suspend temporarily the execution of the sentence
is recognized and, according to a number of state courts, including those of
Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts
(Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel
[1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session
[1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading
case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A.,
1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the
United States expressed the opinion that under the common law the power of the
court was limited to temporary suspension, and brushed aside the contention as to
inherent judicial power saying, through Chief Justice White:
Indisputably under our constitutional system the right to try offenses
against the criminal laws and upon conviction to impose the punishment
provided by law is judicial, and it is equally to be conceded that, in exerting
the powers vested in them on such subject, courts inherently possess
ample right to exercise reasonable, that is, judicial, discretion to enable
them to wisely exert their authority. But these concessions afford no ground
for the contention as to power here made, since it must rest upon the
proposition that the power to enforce begets inherently a discretion to
permanently refuse to do so. And the effect of the proposition urged upon
the distribution of powers made by the Constitution will become apparent
when it is observed that indisputable also is it that the authority to define
and fix the punishment for crime is legislative and includes the right in
advance to bring within judicial discretion, for the purpose of executing the
statute, elements of consideration which would be otherwise beyond the
scope of judicial authority, and that the right to relieve from the
punishment, fixed by law and ascertained according to the methods by it
provided belongs to the executive department.
Justice Carson, in his illuminating concurring opinion in the case of Director of
Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in
1915, also reached the conclusion that the power to suspend the execution of
sentences pronounced in criminal cases is not inherent in the judicial function. "All
are agreed", he said, "that in the absence of statutory authority, it does not lie

within the power of the courts to grant such suspensions." (at p. 278.) Both
petitioner and respondents are correct, therefore, when they argue that a Court of
First Instance sitting in probation proceedings is a court of limited jurisdiction. Its
jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the
Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be
considered on application for prohibition where the question has not been properly
brought to the attention of the court by objection of some kind (Hill vs. Tarver
[1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120;
168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue
has been squarely presented not only before this court by the petitioners but also
before the trial court by the private prosecution. The respondent, Hon. Jose O Vera,
however, acting as judge of the court below, declined to pass upon the question on
the ground that the private prosecutor, not being a party whose rights are affected
by the statute, may not raise said question. The respondent judge cited Cooley on
Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and
McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority
for the proposition that a court will not consider any attack made on the
constitutionality of a statute by one who has no interest in defeating it because his
rights are not affected by its operation. The respondent judge further stated that it
may not motu proprio take up the constitutional question and, agreeing with Cooley
that "the power to declare a legislative enactment void is one which the judge,
conscious of the fallibility of the human judgment, will shrink from exercising in any
case where he can conscientiously and with due regard to duty and official oath
decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332),
proceeded on the assumption that Act No. 4221 is constitutional. While therefore,
the court a quo admits that the constitutional question was raised before it, it
refused to consider the question solely because it was not raised by a proper party.
Respondents herein reiterates this view. The argument is advanced that the private
prosecution has no personality to appear in the hearing of the application for
probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court
of First Instance of Manila, and hence the issue of constitutionality was not properly
raised in the lower court. Although, as a general rule, only those who are parties to a
suit may question the constitutionality of a statute involved in a judicial decision, it
has been held that since the decree pronounced by a court without jurisdiction is
void, where the jurisdiction of the court depends on the validity of the statute in
question, the issue of the constitutionality will be considered on its being brought to
the attention of the court by persons interested in the effect to be given the statute.
(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the issue was not
properly raised in the court below by the proper party, it does not follow that the
issue may not be here raised in an original action of certiorari and prohibitions. It is
true that, as a general rule, the question of constitutionality must be raised at the
earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be
raised at the trial, and if not raised in the trial court, it will not considered on appeal.
(12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil.,
192, 193-195.) But we must state that the general rule admits of exceptions. Courts,
in the exercise of sounds discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In re Woolsey
[1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp
conflict of authorities, it is said that the question may be raised for the first time at
any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.)
Even in civil cases, it has been held that it is the duty of a court to pass on the
constitutional question, though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case. (McCabe's
Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs.
St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis

Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a
constitutional question will be considered by an appellate court at any time, where it
involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57
S., 870.) As to the power of this court to consider the constitutional question raised
for the first time before this court in these proceedings, we turn again and point with
emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that
the Hongkong & Shanghai Banking Corporation, represented by the private
prosecution, is not the proper party to raise the constitutional question here a
point we do not now have to decide we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila,
is such a proper party in the present proceedings. The unchallenged rule is that the
person who impugns the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustained, direct injury as a
result of its enforcement. It goes without saying that if Act No. 4221 really violates
the constitution, the People of the Philippines, in whose name the present action is
brought, has a substantial interest in having it set aside. Of grater import than the
damage caused by the illegal expenditure of public funds is the mortal wound
inflicted upon the fundamental law by the enforcement of an invalid statute. Hence,
the well-settled rule that the state can challenge the validity of its own laws. In
Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in
Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed.,
845), this court declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In Attorney General vs.
Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of
Michigan, through its Attorney General, instituted quo warranto proceedings to test
the right of the respondents to renew a mining corporation, alleging that the statute
under which the respondents base their right was unconstitutional because it
impaired the obligation of contracts. The capacity of the chief law officer of the state
to question the constitutionality of the statute was though, as a general rule, only
those who are parties to a suit may question the constitutionality of a statute
involved in a judicial decision, it has been held that since the decree pronounced by
a court without jurisdiction in void, where the jurisdiction of the court depends on
the validity of the statute in question, the issue of constitutionality will be
considered on its being brought to the attention of the court by persons interested in
the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by the proper
party, it does not follow that the issue may not be here raised in an original action of
certiorari and prohibition. It is true that, as a general rule, the question of
constitutionality must be raised at the earliest opportunity, so that if not raised by
the pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial
court, it will not be considered on appeal. (12 C.J., p. 786. See, also, CadwalladerGibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that
the general rule admits of exceptions. Courts, in the exercise of sound discretion,
may determine the time when a question affecting the constitutionality of a statute
should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal
cases, although there is a very sharp conflict of authorities, it is said that the
question may be raised for the first time at any state of the proceedings, either in
the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that
it is the duty of a court to pass on the constitutional question, though raised for first
time on appeal, if it appears that a determination of the question is necessary to a
decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky.,
674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113
S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.)
And it has been held that a constitutional question will be considered by an
appellate court at any time, where it involves the jurisdiction of the court below
(State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to
consider the constitutional question raised for the first time before this court in

these proceedings, we turn again and point with emphasis to the case of Yu Cong
Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai
Banking Corporation, represented by the private prosecution, is not the proper party
to raise the constitutional question here a point we do not now have to decide
we are of the opinion that the People of the Philippines, represented by the SolicitorGeneral and the Fiscal of the City of Manila, is such a proper party in the present
proceedings. The unchallenged rule is that the person who impugns the validity of a
statute must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement. It goes without
saying that if Act No. 4221 really violates the Constitution, the People of the
Philippines, in whose name the present action is brought, has a substantial interest
in having it set aside. Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the fundamental law
by the enforcement of an invalid statute. Hence, the well-settled rule that the state
can challenge the validity of its own laws. In Government of the Philippine Islands vs.
Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act
of the legislature unconstitutional in an action instituted in behalf of the Government
of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312;
41 N.W., 426, 428, 429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the respondents to renew a
mining corporation, alleging that the statute under which the respondents base their
right was unconstitutional because it impaired the obligation of contracts. The
capacity of the chief law officer of the state to question the constitutionality of the
statute was itself questioned. Said the Supreme Court of Michigan, through
Champlin, J.:
. . . The idea seems to be that the people are estopped from
questioning the validity of a law enacted by their representatives; that to
an accusation by the people of Michigan of usurpation their government, a
statute enacted by the people of Michigan is an adequate answer. The last
proposition is true, but, if the statute relied on in justification is
unconstitutional, it is statute only in form, and lacks the force of law, and is
of no more saving effect to justify action under it than if it had never been
enacted. The constitution is the supreme law, and to its behests the courts,
the legislature, and the people must bow . . . The legislature and the
respondents are not the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in speaking of an
acquiescence by a party affected by an unconstitutional act of the
legislature: "The people have a deep and vested interest in maintaining all
the constitutional limitations upon the exercise of legislative powers." (Allen
vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action
(mandamus) was brought by the Attorney-General of Kansas to test the
constitutionality of a statute of the state. In disposing of the question whether or not
the state may bring the action, the Supreme Court of Kansas said:
. . . the state is a proper party indeed, the proper party to bring
this action. The state is always interested where the integrity of its
Constitution or statutes is involved.
"It has an interest in seeing that the will of the
Legislature is not disregarded, and need not, as an
individual plaintiff must, show grounds of fearing more

specific injury. (State vs. Kansas City 60 Kan., 518 [57

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

would be free from constitutional limitations in the enactment of criminal

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

Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs.
Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous
situation confronted us. We said: "Inasmuch as the property and personal rights of
nearly twelve thousand merchants are affected by these proceedings, and inasmuch
as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the
public welfare and for the advancement of public policy, we have determined to
overrule the defense of want of jurisdiction in order that we may decide the main
issue. We have here an extraordinary situation which calls for a relaxation of the
general rule." Our ruling on this point was sustained by the Supreme Court of the
United States. A more binding authority in support of the view we have taken can
not be found.
We have reached the conclusion that the question of the constitutionality of
Act No. 4221 has been properly raised. Now for the main inquiry: Is the Act
unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the judiciary
to enforce the Constitution. This court, by clear implication from the provisions of
section 2, subsection 1, and section 10, of Article VIII of the Constitution, may
declare an act of the national legislature invalid because in conflict with the
fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And,
in clear cases, it will not hesitate to give effect to the supreme law by setting aside a
statute in conflict therewith. This is of the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of this nature
that all reasonable doubts should be resolved in favor of the constitutionality of a
statute. An act of the legislature approved by the executive, is presumed to be
within constitutional limitations. The responsibility of upholding the Constitution
rests not on the courts alone but on the legislature as well. "The question of the
validity of every statute is first determined by the legislative department of the
government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health
and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a
statute finally comes before the courts sustained by the sanction of the executive.
The members of the Legislature and the Chief Executive have taken an oath to
support the Constitution and it must be presumed that they have been true to this
oath and that in enacting and sanctioning a particular law they did not intend to
violate the Constitution. The courts cannot but cautiously exercise its power to
overturn the solemn declarations of two of the three grand departments of the
governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy
which bids the judiciary to reflect the wisdom of the people as expressed through an
elective Legislature and an elective Chief Executive. It follows, therefore, that the
courts will not set aside a law as violative of the Constitution except in a clear case.
This is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned
argument, called attention to the fact that the President of the Philippines had
already expressed his opinion against the constitutionality of the Probation Act,
adverting that as to the Executive the resolution of this question was a foregone
conclusion. Counsel, however, reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that the President in his
message dated September 1, 1937, recommended to the National Assembly the
immediate repeal of the Probation Act (No. 4221); that this message resulted in the
approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act,
subject to certain conditions therein mentioned; but that said bill was vetoed by the
President on September 13, 1937, much against his wish, "to have stricken out from

the statute books of the Commonwealth a law . . . unfair and very likely
unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill
referred to, the President exercised his constitutional prerogative. He may express
the reasons which he may deem proper for taking such a step, but his reasons are
not binding upon us in the determination of actual controversies submitted for our
determination. Whether or not the Executive should express or in any manner
insinuate his opinion on a matter encompassed within his broad constitutional power
of veto but which happens to be at the same time pending determination in this
court is a question of propriety for him exclusively to decide or determine. Whatever
opinion is expressed by him under these circumstances, however, cannot sway our
judgment on way or another and prevent us from taking what in our opinion is the
proper course of action to take in a given case. It if is ever necessary for us to make
any vehement affirmance during this formative period of our political history, it is
that we are independent of the Executive no less than of the Legislative department
of our government independent in the performance of our functions, undeterred
by any consideration, free from politics, indifferent to popularity, and unafraid of
criticism in the accomplishment of our sworn duty as we see it and as we
understand it.
The constitutionality of Act No. 4221 is challenged on three principal grounds:
(1) That said Act encroaches upon the pardoning power of the Executive; (2) that its
constitutes an undue delegation of legislative power and (3) that it denies the equal
protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly known as
the Jones Law, in force at the time of the approval of Act No. 4221, otherwise known
as the Probation Act, vests in the Governor-General of the Philippines "the exclusive
power to grant pardons and reprieves and remit fines and forfeitures". This power is
now vested in the President of the Philippines. (Art. VII, sec. 11, subsec. 6.) The
provisions of the Jones Law and the Constitution differ in some respects. The
adjective "exclusive" found in the Jones Law has been omitted from the Constitution.
Under the Jones Law, as at common law, pardon could be granted any time after the
commission of the offense, either before or after conviction (Vide Constitution of the
United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The GovernorGeneral of the Philippines was thus empowered, like the President of the United
States, to pardon a person before the facts of the case were fully brought to light.
The framers of our Constitution thought this undesirable and, following most of the
state constitutions, provided that the pardoning power can only be exercised "after
conviction". So, too, under the new Constitution, the pardoning power does not
extend to "cases of impeachment". This is also the rule generally followed in the
United States (Vide Constitution of the United States, Art. II, sec. 2). The rule in
England is different. There, a royal pardon can not be pleaded in bar of an
impeachment; "but," says Blackstone, "after the impeachment has been solemnly
heard and determined, it is not understood that the king's royal grace is further
restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421;
Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake
[1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious.
In England, Judgment on impeachment is not confined to mere "removal from office
and disqualification to hold and enjoy any office of honor, trust, or profit under the
Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the
whole punishment attached by law to the offense committed. The House of Lords, on
a conviction may, by its sentence, inflict capital punishment, perpetual banishment,
perpetual banishment, fine or imprisonment, depending upon the gravity of the
offense committed, together with removal from office and incapacity to hold office.
(Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of
"commutation" and of the power of the executive to impose, in the pardons he may

grant, such conditions, restrictions and limitations as he may deem proper. Amnesty
may be granted by the President under the Constitution but only with the
concurrence of the National Assembly. We need not dwell at length on the
significance of these fundamental changes. It is sufficient for our purposes to state
that the pardoning power has remained essentially the same. The question is: Has
the pardoning power of the Chief Executive under the Jones Law been impaired by
the Probation Act?
As already stated, the Jones Law vests the pardoning power exclusively in the
Chief Executive. The exercise of the power may not, therefore, be vested in anyone
else.
". . . The benign prerogative of mercy reposed in the executive cannot be taken
away nor fettered by any legislative restrictions, nor can like power be given by the
legislature to any other officer or authority. The coordinate departments of
government have nothing to do with the pardoning power, since no person properly
belonging to one of the departments can exercise any powers appertaining to either
of the others except in cases expressly provided for by the constitution." (20 R.C.L.,
pp., , and cases cited.) " . . . where the pardoning power is conferred on the
executive without express or implied limitations, the grant is exclusive, and the
legislature can neither exercise such power itself nor delegate it elsewhere, nor
interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and
cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is
for that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the Supreme
Court of the United States ruled in 1916 that an order indefinitely suspending
sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129;
L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White,
after an exhaustive review of the authorities, expressed the opinion of the court that
under the common law the power of the court was limited to temporary suspension
and that the right to suspend sentenced absolutely and permanently was vested in
the executive branch of the government and not in the judiciary. But, the right of
Congress to establish probation by statute was conceded. Said the court through its
Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the
imposition of penalties as fixed to be subject, by probation legislation or such other
means as the legislative mind may devise, to such judicial discretion as may be
adequate to enable courts to meet by the exercise of an enlarged but wise discretion
the infinite variations which may be presented to them for judgment, recourse must
be had Congress whose legislative power on the subject is in the very nature of
things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d],
5, 6.) This decision led the National Probation Association and others to agitate for
the enactment by Congress of a federal probation law. Such action was finally taken
on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was
followed by an appropriation to defray the salaries and expenses of a certain
number of probation officers chosen by civil service. (Johnson, Probation for Juveniles
and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72
Law. ed., 309), the Supreme Court of the United States, through Chief Justice Taft,
held that when a person sentenced to imprisonment by a district court has begun to
serve his sentence, that court has no power under the Probation Act of March 4,
1925 to grant him probation even though the term at which sentence was imposed
had not yet expired. In this case of Murray, the constitutionality of the probation Act
was not considered but was assumed. The court traced the history of the Act and
quoted from the report of the Committee on the Judiciary of the United States House

of Representatives (Report No. 1377, 68th Congress, 2 Session) the following

statement:
Prior to the so-called Killitts case, rendered in December, 1916, the
district courts exercised a form of probation either, by suspending sentence
or by placing the defendants under state probation officers or volunteers. In
this case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129;
L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the
Supreme Court denied the right of the district courts to suspend sentenced.
In the same opinion the court pointed out the necessity for action by
Congress if the courts were to exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to
enact probation legislation. In 1917, a bill was favorably reported by the
Judiciary Committee and passed the House. In 1920, the judiciary
Committee again favorably reported a probation bill to the House, but it
was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal
government with reference to its treatment of those convicted of violations
of its criminal laws in harmony with that of the states of the Union. At the
present time every state has a probation law, and in all but twelve states
the law applies both to adult and juvenile offenders. (see, also, Johnson,
Probation for Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been sustained by
inferior federal courts. In Riggs vs. United States supra, the Circuit Court of Appeals
of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the
questions under consideration have been reviewed by the Circuit Court of
Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the
act fully sustained, and the same held in no manner to encroach upon the
pardoning power of the President. This case will be found to contain an able
and comprehensive review of the law applicable here. It arose under the act
we have to consider, and to it and the authorities cited therein special
reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a
decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs.
U.S., 10 F. [2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States; in plain
and unequivocal language, pointed to Congress as possessing the requisite power to
enact probation laws, that a federal probation law as actually enacted in 1925, and
that the constitutionality of the Act has been assumed by the Supreme Court of the
United States in 1928 and consistently sustained by the inferior federal courts in a
number of earlier cases.
We are fully convinced that the Philippine Legislature, like the Congress of the
United States, may legally enact a probation law under its broad power to fix the
punishment of any and all penal offenses. This conclusion is supported by other
authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac.,
698, the court said: "It is clearly within the province of the Legislature to denominate
and define all classes of crime, and to prescribe for each a minimum and maximum
punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70

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

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

Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F.
[2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States
[1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W.,
871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re
Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114
Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425;
Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88
Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E.,
843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893],
135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me.,
522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs.
Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925],
73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274;
47 L. R. A. [N. S.], 848; Stateex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl.,
875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915],
20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs.
Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim.
Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp.,
928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245
App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C,
1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781;
State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C.,
466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States
[1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker
vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex.,
Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165
S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs.
State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122
Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24;
Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911],
65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash.,
561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of
authorities holding that the courts may be legally authorized by the legislature to
suspend sentence by the establishment of a system of probation however
characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206
Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a statute
enacted in 1921 which provided for the suspension of the execution of a sentence
until otherwise ordered by the court, and required that the convicted person be
placed under the charge of a parole or peace officer during the term of such
suspension, on such terms as the court may determine, was held constitutional and
as not giving the court a power in violation of the constitutional provision vesting the
pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912],
18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same. They are
actually district and different from each other, both in origin and in nature. In
People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E.,
386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York
said:
. . . The power to suspend sentence and the power to grant reprieves
and pardons, as understood when the constitution was adopted, are totally
distinct and different in their nature. The former was always a part of the
judicial power; the latter was always a part of the executive power. The
suspension of the sentence simply postpones the judgment of the court
temporarily or indefinitely, but the conviction and liability following it, and

the civil disabilities, remain and become operative when judgment is

rendered. A pardon reaches both the punishment prescribed for the offense
and the guilt of the offender. It releases the punishment, and blots out of
existence the guilt, so that in the eye of the law, the offender is as innocent
as if he had never committed the offense. It removes the penalties and
disabilities, and restores him to all his civil rights. It makes him, as it were,
a new man, and gives him a new credit and capacity. (Ex parte Garland, 71
U. S., 4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128;
20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly
familiar with the principles governing the power to grant pardons, and it
was conferred by these instruments upon the executive with full knowledge
of the law upon the subject, and the words of the constitution were used to
express the authority formerly exercised by the English crown, or by its
representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15
Law. ed., 421.) As this power was understood, it did not comprehend any
part of the judicial functions to suspend sentence, and it was never
intended that the authority to grant reprieves and pardons should abrogate,
or in any degree restrict, the exercise of that power in regard to its own
judgments, that criminal courts has so long maintained. The two powers, so
distinct and different in their nature and character, were still left separate
and distinct, the one to be exercised by the executive, and the other by the
judicial department. We therefore conclude that a statute which, in terms,
authorizes courts of criminal jurisdiction to suspend sentence in certain
cases after conviction, a power inherent in such courts at common law,
which was understood when the constitution was adopted to be an ordinary
judicial function, and which, ever since its adoption, has been exercised of
legislative power under the constitution. It does not encroach, in any just
sense, upon the powers of the executive, as they have been understood
and practiced from the earliest times. (Quoted with approval in Directors of
Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J.,
concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free man. He
is not finally and completely exonerated. He is not exempt from the entire
punishment which the law inflicts. Under the Probation Act, the probationer's case is
not terminated by the mere fact that he is placed on probation. Section 4 of the Act
provides that the probation may be definitely terminated and the probationer finally
discharged from supervision only after the period of probation shall have been
terminated and the probation officer shall have submitted a report, and the court
shall have found that the probationer has complied with the conditions of probation.
The probationer, then, during the period of probation, remains in legal custody
subject to the control of the probation officer and of the court; and, he may be
rearrested upon the non-fulfillment of the conditions of probation and, when
rearrested, may be committed to prison to serve the sentence originally imposed
upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete
liberty, and may be far from it. It is really a new mode of punishment, to be
applied by the judge in a proper case, in substitution of the imprisonment
and find prescribed by the criminal laws. For this reason its application is as
purely a judicial act as any other sentence carrying out the law deemed
applicable to the offense. The executive act of pardon, on the contrary, is
against the criminal law, which binds and directs the judges, or rather is
outside of and above it. There is thus no conflict with the pardoning power,

and no possible unconstitutionality of the Probation Act for this cause.

(Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from commutation of
the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.],
1144; 150 S. W., 162), is relied upon most strongly by the petitioners as authority in
support of their contention that the power to grant pardons and reprieves, having
been vested exclusively upon the Chief Executive by the Jones Law, may not be
conferred by the legislature upon the courts by means of probation law authorizing
the indefinite judicial suspension of sentence. We have examined that case and
found that although the Court of Criminal Appeals of Texas held that the probation
statute of the state in terms conferred on the district courts the power to grant
pardons to persons convicted of crime, it also distinguished between suspensions
sentence on the one hand, and reprieve and commutation of sentence on the other.
Said the court, through Harper, J.:
That the power to suspend the sentence does not conflict with the
power of the Governor to grant reprieves is settled by the decisions of the
various courts; it being held that the distinction between a "reprieve" and a
suspension of sentence is that a reprieve postpones the execution of the
sentence to a day certain, whereas a suspension is for an indefinite time.
(Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40
N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law
cannot be hold in conflict with the power confiding in the Governor to grant
commutations of punishment, for a commutations is not but to change the
punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac.,
525), the Supreme Court of Montana had under consideration the validity of the
adult probation law of the state enacted in 1913, now found in sections 1207812086, Revised Codes of 1921. The court held the law valid as not impinging upon
the pardoning power of the executive. In a unanimous decision penned by Justice
Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a
well understood meaning at the time our Constitution was adopted, and no
one of them was intended to comprehend the suspension of the execution
of the judgment as that phrase is employed in sections 12078-12086. A
"pardon" is an act of grace, proceeding from the power intrusted with the
execution of the laws which exempts the individual on whom it is bestowed
from the punishment the law inflicts for a crime he has committed (United
States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt
(State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense
(Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala.,
517; 49 Am. Rep., 71). "Commutation" is a remission of a part of the
punishment; a substitution of a less penalty for the one originally imposed
(Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs.
Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the
withholding of the sentence for an interval of time (4 Blackstone's
Commentaries, 394), a postponement of execution (Carnal vs. People, 1
Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs.
State, 97 Ind., 373).
Few adjudicated cases are to be found in which the validity of a
statute similar to our section 12078 has been determined; but the same

objections have been urged against parole statutes which vest the power to
parole in persons other than those to whom the power of pardon is granted,
and these statutes have been upheld quite uniformly, as a reference to the
numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169
S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C.
L., 524.)
We conclude that the Probation Act does not conflict with the pardoning power
of the Executive. The pardoning power, in respect to those serving their
probationary sentences, remains as full and complete as if the Probation Law had
never been enacted. The President may yet pardon the probationer and thus place it
beyond the power of the court to order his rearrest and imprisonment. (Riggs vs.
United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the pardoning power
of the executive and is not for that reason void, does section 11 thereof constitute,
as contended, an undue delegation of legislative power?
Under the constitutional system, the powers of government are distributed
among three coordinate and substantially independent organs: the legislative, the
executive and the judicial. Each of these departments of the government derives its
authority from the Constitution which, in turn, is the highest expression of popular
will. Each has exclusive cognizance of the matters within its jurisdiction, and is
supreme within its own sphere.
The power to make laws the legislative power is vested in a bicameral
Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly by the
Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine
Legislature or the National Assembly may not escape its duties and responsibilities
by delegating that power to any other body or authority. Any attempt to abdicate the
power is unconstitutional and void, on the principle that potestas delegata non
delegare potest. This principle is said to have originated with the glossators, was
introduced into English law through a misreading of Bracton, there developed as a
principle of agency, was established by Lord Coke in the English public law in
decisions forbidding the delegation of judicial power, and found its way into America
as an enlightened principle of free government. It has since become an accepted
corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p.
66.) The classic statement of the rule is that of Locke, namely: "The legislative
neither must nor can transfer the power of making laws to anybody else, or place it
anywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge
Cooley enunciates the doctrine in the following oft-quoted language: "One of the
settled maxims in constitutional law is, that the power conferred upon the legislature
to make laws cannot be delegated by that department to any other body or
authority. Where the sovereign power of the state has located the authority, there it
must remain; and by the constitutional agency alone the laws must be made until
the Constitution itself is charged. The power to whose judgment, wisdom, and
patriotism this high prerogative has been intrusted cannot relieve itself of the
responsibilities by choosing other agencies upon which the power shall be devolved,
nor can it substitute the judgment, wisdom, and patriotism of any other body for
those to which alone the people have seen fit to confide this sovereign trust."
(Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in
U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical
principle that such a delegated power constitutes not only a right but a duty to be
performed by the delegate by the instrumentality of his own judgment acting

immediately upon the matter of legislation and not through the intervening mind of
another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is not
absolute and inflexible. It admits of exceptions. An exceptions sanctioned by
immemorial practice permits the central legislative body to delegate legislative
powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil.,
660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129
U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H.,
279.) "It is a cardinal principle of our system of government, that local affairs shall
be managed by local authorities, and general affairs by the central authorities; and
hence while the rule is also fundamental that the power to make laws cannot be
delegated, the creation of the municipalities exercising local self government has
never been held to trench upon that rule. Such legislation is not regarded as a
transfer of general legislative power, but rather as the grant of the authority to
prescribed local regulations, according to immemorial practice, subject of course to
the interposition of the superior in cases of necessity." (Stoutenburgh vs.
Hennick, supra.) On quite the same principle, Congress is powered to delegate
legislative power to such agencies in the territories of the United States as it may
select. A territory stands in the same relation to Congress as a municipality or city to
the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup.
Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195
U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have
also sustained the delegation of legislative power to the people at large. Some
authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p.
164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas.,
1914C, 616). However, the question of whether or not a state has ceased to be
republican in form because of its adoption of the initiative and referendum has been
held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs.
Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the
constitutionality of such laws has been looked upon with favor by certain progressive
courts, the sting of the decisions of the more conservative courts has been pretty
well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R.
A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37
L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also,
legislative power may be delegated by the Constitution itself. Section 14, paragraph
2, of article VI of the Constitution of the Philippines provides that "The National
Assembly may by law authorize the President, subject to such limitations and
restrictions as it may impose, to fix within specified limits, tariff rates, import or
export quotas, and tonnage and wharfage dues." And section 16 of the same article
of the Constitution provides that "In times of war or other national emergency, the
National Assembly may by law authorize the President, for a limited period and
subject to such restrictions as it may prescribed, to promulgate rules and regulations
to carry out a declared national policy." It is beyond the scope of this decision to
determine whether or not, in the absence of the foregoing constitutional provisions,
the President could be authorized to exercise the powers thereby vested in him.
Upon the other hand, whatever doubt may have existed has been removed by the
Constitution itself.
The case before us does not fall under any of the exceptions hereinabove
mentioned.
The challenged section of Act No. 4221 in section 11 which reads as follows:

This Act shall apply only in those provinces in which the respective
provincial boards have provided for the salary of a probation officer at rates
not lower than those now provided for provincial fiscals. Said probation
officer shall be appointed by the Secretary of Justice and shall be subject to
the direction of the Probation Office. (Emphasis ours.)
In testing whether a statute constitute an undue delegation of legislative
power or not, it is usual to inquire whether the statute was complete in all its terms
and provisions when it left the hands of the legislature so that nothing was left to the
judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In
the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the
foregoing rule when it held an act of the legislature void in so far as it undertook to
authorize the Governor-General, in his discretion, to issue a proclamation fixing the
price of rice and to make the sale of it in violation of the proclamation a crime.
(See and cf. Compaia General de Tabacos vs. Board of Public Utility Commissioners
[1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a
certain extent matters of detail may be left to be filled in by rules and regulations to
be adopted or promulgated by executive officers and administrative boards. (6 R. C.
L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be regarded as
administrative bodies endowed with power to determine when the Act should take
effect in their respective provinces. They are the agents or delegates of the
legislature in this respect. The rules governing delegation of legislative power to
administrative and executive officers are applicable or are at least indicative of the
rule which should be here adopted. An examination of a variety of cases on
delegation of power to administrative bodies will show that the ratio decidendiis at
variance but, it can be broadly asserted that the rationale revolves around the
presence or absence of a standard or rule of action or the sufficiency thereof in
the statute, to aid the delegate in exercising the granted discretion. In some cases, it
is held that the standard is sufficient; in others that is insufficient; and in still others
that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence
invalid if it does not lay down any rule or definite standard by which the
administrative officer or board may be guided in the exercise of the discretionary
powers delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L.
ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co.
[1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R.
C. L., title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide
the provincial boards in the exercise of their discretionary power to determine
whether or not the Probation Act shall apply in their respective provinces? What
standards are fixed by the Act? We do not find any and none has been pointed to us
by the respondents. The probation Act does not, by the force of any of its provisions,
fix and impose upon the provincial boards any standard or guide in the exercise of
their discretionary power. What is granted, if we may use the language of Justice
Cardozo in the recent case of Schecter, supra, is a "roving commission" which
enables the provincial boards to exercise arbitrary discretion. By section 11 if the
Act, the legislature does not seemingly on its own authority extend the benefits of
the Probation Act to the provinces but in reality leaves the entire matter for the
various provincial boards to determine. In other words, the provincial boards of the
various provinces are to determine for themselves, whether the Probation Law shall
apply to their provinces or not at all. The applicability and application of the
Probation Act are entirely placed in the hands of the provincial boards. If the
provincial board does not wish to have the Act applied in its province, all that it has
to do is to decline to appropriate the needed amount for the salary of a probation
officer. The plain language of the Act is not susceptible of any other interpretation.
This, to our minds, is a virtual surrender of legislative power to the provincial boards.

"The true distinction", says Judge Ranney, "is between the delegation of
power to make the law, which necessarily involves a discretion as to what it shall be,
and conferring an authority or discretion as to its execution, to be exercised under
and in pursuance of the law. The first cannot be done; to the latter no valid objection
can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio
St., 77, 88. See also, Sutherland on Statutory Construction, sec 68.) To the same
effect are the decision of this court in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39
Phil., 660) andCruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases,
this court sustained the validity of the law conferring upon the Governor-General
authority to adjust provincial and municipal boundaries. In the second case, this
court held it lawful for the legislature to direct non-Christian inhabitants to take up
their habitation on unoccupied lands to be selected by the provincial governor and
approved by the provincial board. In the third case, it was held proper for the
legislature to vest in the Governor-General authority to suspend or not, at his
discretion, the prohibition of the importation of the foreign cattle, such prohibition to
be raised "if the conditions of the country make this advisable or if deceased among
foreign cattle has ceased to be a menace to the agriculture and livestock of the
lands."
It should be observed that in the case at bar we are not concerned with the
simple transference of details of execution or the promulgation by executive or
administrative officials of rules and regulations to carry into effect the provisions of a
law. If we were, recurrence to our own decisions would be sufficient. (U. S. vs.
Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs.
Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56
Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro
[1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the effect as
law after it leaves the hands of the legislature. It is true that laws may be made
effective on certain contingencies, as by proclamation of the executive or the
adoption by the people of a particular community (6 R. C. L., 116, 170-172; Cooley,
Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825],
10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the
legislature may delegate a power not legislative which it may itself rightfully
exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W.,
738; 31 L. R. A., 112.) The power to ascertain facts is such a power which may be
delegated. There is nothing essentially legislative in ascertaining the existence of
facts or conditions as the basis of the taking into effect of a law. That is a mental
process common to all branches of the government. (Dowling vs. Lancashire Ins.
Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33
L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark
[1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the
apparent tendency, however, to relax the rule prohibiting delegation of legislative
authority on account of the complexity arising from social and economic forces at
work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX;
Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569579; Beard, "Squirt-Gun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI,
pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on
Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the
Constitution of the United States in the following language speaking of declaration
of legislative power to administrative agencies: "The principle which permits the
legislature to provide that the administrative agent may determine when the
circumstances are such as require the application of a law is defended upon the
ground that at the time this authority is granted, the rule of public policy, which is

the essence of the legislative act, is determined by the legislature. In other words,
the legislature, as it its duty to do, determines that, under given circumstances,
certain executive or administrative action is to be taken, and that, under other
circumstances, different of no action at all is to be taken. What is thus left to the
administrative official is not the legislative determination of what public policy
demands, but simply the ascertainment of what the facts of the case require to be
done according to the terms of the law by which he is governed." (Willoughby on the
Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc.,
of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was
said: "The efficiency of an Act as a declaration of legislative will must, of course,
come from Congress, but the ascertainment of the contingency upon which the Act
shall take effect may be left to such agencies as it may designate." (See, also, 12
C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal.,
343, 258.) The legislature, then may provide that a contingencies leaving to some
other person or body the power to determine when the specified contingencies has
arisen. But, in the case at bar, the legislature has not made the operation of the
Prohibition Act contingent upon specified facts or conditions to be ascertained by the
provincial board. It leaves, as we have already said, the entire operation or nonoperation of the law upon the provincial board. the discretion vested is arbitrary
because it is absolute and unlimited. A provincial board need not investigate
conditions or find any fact, or await the happening of any specified contingency. It is
bound by no rule, limited by no principle of expendiency announced by the
legislature. It may take into consideration certain facts or conditions; and, again, it
may not. It may have any purpose or no purpose at all. It need not give any reason
whatsoever for refusing or failing to appropriate any funds for the salary of a
probation officer. This is a matter which rest entirely at its pleasure. The fact that at
some future time we cannot say when the provincial boards may appropriate
funds for the salaries of probation officers and thus put the law into operation in the
various provinces will not save the statute. The time of its taking into effect, we
reiterate, would yet be based solely upon the will of the provincial boards and not
upon the happening of a certain specified contingency, or upon the ascertainment of
certain facts or conditions by a person or body other than legislature itself.
The various provincial boards are, in practical effect, endowed with the power
of suspending the operation of the Probation Law in their respective provinces. In
some jurisdiction, constitutions provided that laws may be suspended only by the
legislature or by its authority. Thus, section 28, article I of the Constitution of Texas
provides that "No power of suspending laws in this state shall be exercised except
by the legislature"; and section 26, article I of the Constitution of Indiana provides
"That the operation of the laws shall never be suspended, except by authority of the
General Assembly." Yet, even provisions of this sort do not confer absolute power of
suspension upon the legislature. While it may be undoubted that the legislature may
suspend a law, or the execution or operation of a law, a law may not be suspended
as to certain individuals only, leaving the law to be enjoyed by others. The
suspension must be general, and cannot be made for individual cases or for
particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174,
177, 178), it was said:
By the twentieth article of the declaration of rights in the constitution
of this commonwealth, it is declared that the power of suspending the laws,
or the execution of the laws, ought never to be exercised but by the
legislature, or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly provide for. Many of
the articles in that declaration of rights were adopted from the Magna
Charta of England, and from the bill of rights passed in the reign of William
and Mary. The bill of rights contains an enumeration of the oppressive acts

of James II, tending to subvert and extirpate the protestant religion, and the
laws and liberties of the kingdom; and the first of them is the assuming and
exercising a power of dispensing with and suspending the laws, and the
execution of the laws without consent of parliament. The first article in the
claim or declaration of rights contained in the statute is, that the exercise
of such power, by legal authority without consent of parliament, is illegal. In
the tenth section of the same statute it is further declared and enacted,
that "No dispensation by non obstante of or to any statute, or part thereof,
should be allowed; but the same should be held void and of no effect,
except a dispensation be allowed of in such statute." There is an implied
reservation of authority in the parliament to exercise the power here
mentioned; because, according to the theory of the English Constitution,
"that absolute despotic power, which must in all governments reside
somewhere," is intrusted to the parliament: 1 Bl. Com., 160.
The principles of our government are widely different in this
particular. Here the sovereign and absolute power resides in the people;
and the legislature can only exercise what is delegated to them according
to the constitution. It is obvious that the exercise of the power in question
would be equally oppressive to the subject, and subversive of his right to
protection, "according to standing laws," whether exercised by one man or
by a number of men. It cannot be supposed that the people when adopting
this general principle from the English bill of rights and inserting it in our
constitution, intended to bestow by implication on the general court one of
the most odious and oppressive prerogatives of the ancient kings of
England. It is manifestly contrary to the first principles of civil liberty and
natural justice, and to the spirit of our constitution and laws, that any one
citizen should enjoy privileges and advantages which are denied to all
others under like circumstances; or that ant one should be subject to
losses, damages, suits, or actions from which all others under like
circumstances are exempted.
To illustrate the principle: A section of a statute relative to dogs made the
owner of any dog liable to the owner of domestic animals wounded by it for the
damages without proving a knowledge of it vicious disposition. By a provision of the
act, power was given to the board of supervisors to determine whether or not during
the current year their county should be governed by the provisions of the act of
which that section constituted a part. It was held that the legislature could not
confer that power. The court observed that it could no more confer such a power
than to authorize the board of supervisors of a county to abolish in such county the
days of grace on commercial paper, or to suspend the statute of limitations. (Slinger
vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for
the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that
case a general statute formulating a road system contained a provision that "if the
county court of any county should be of opinion that the provisions of the act should
not be enforced, they might, in their discretion, suspend the operation of the same
for any specified length of time, and thereupon the act should become inoperative in
such county for the period specified in such order; and thereupon order the roads to
be opened and kept in good repair, under the laws theretofore in force." Said the
court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a
former act, and yet it is left to the county court to say which act shall be enforce in
their county. The act does not submit the question to the county court as an original
question, to be decided by that tribunal, whether the act shall commence its
operation within the county; but it became by its own terms a law in every county
not excepted by name in the act. It did not, then, require the county court to do any
act in order to give it effect. But being the law in the county, and having by its

provisions superseded and abrogated the inconsistent provisions of previous laws,

the county court is . . . empowered, to suspend this act and revive the repealed
provisions of the former act. When the question is before the county court for that
tribunal to determine which law shall be in force, it is urge before us that the power
then to be exercised by the court is strictly legislative power, which under our
constitution, cannot be delegated to that tribunal or to any other body of men in the
state. In the present case, the question is not presented in the abstract; for the
county court of Saline county, after the act had been for several months in force in
that county, did by order suspend its operation; and during that suspension the
offense was committed which is the subject of the present indictment . . . ."
(See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different from
those applicable to other localities and, while recognizing the force of the principle
hereinabove expressed, courts in may jurisdiction have sustained the
constitutionality of the submission of option laws to the vote of the people. (6 R.C.L.,
p. 171.) But option laws thus sustained treat of subjects purely local in character
which should receive different treatment in different localities placed under different
circumstances. "They relate to subjects which, like the retailing of intoxicating
drinks, or the running at large of cattle in the highways, may be differently regarded
in different localities, and they are sustained on what seems to us the impregnable
ground, that the subject, though not embraced within the ordinary powers of
municipalities to make by-laws and ordinances, is nevertheless within the class of
public regulations, in respect to which it is proper that the local judgment should
control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while we do
not deny the right of local self-government and the propriety of leaving matters of
purely local concern in the hands of local authorities or for the people of small
communities to pass upon, we believe that in matters of general of general
legislation like that which treats of criminals in general, and as regards the general
subject of probation, discretion may not be vested in a manner so unqualified and
absolute as provided in Act No. 4221. True, the statute does not expressly state that
the provincial boards may suspend the operation of the Probation Act in particular
provinces but, considering that, in being vested with the authority to appropriate or
not the necessary funds for the salaries of probation officers, they thereby are given
absolute discretion to determine whether or not the law should take effect or
operate in their respective provinces, the provincial boards are in reality empowered
by the legislature to suspend the operation of the Probation Act in particular
provinces, the Act to be held in abeyance until the provincial boards should decide
otherwise by appropriating the necessary funds. The validity of a law is not tested
by what has been done but by what may be done under its provisions. (Walter E.
Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the legislature
not only in the expression of what may be termed legislative policy but in the
elaboration and execution thereof. "Without this power, legislation would become
oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said
that popular government lives because of the inexhaustible reservoir of power
behind it. It is unquestionable that the mass of powers of government is vested in
the representatives of the people and that these representatives are no further
restrained under our system than by the express language of the instrument
imposing the restraint, or by particular provisions which by clear intendment, have
that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23;
Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in
mind that a constitution is both a grant and a limitation of power and one of these
time-honored limitations is that, subject to certain exceptions, legislative power shall
not be delegated.

We conclude that section 11 of Act No. 4221 constitutes an improper and

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

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

City of Manila, considering the peculiar conditions of the city as found and taken into
account by the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has
reference to a situation where the constitution of Missouri permits appeals to the
Supreme Court of the state from final judgments of any circuit court, except those in
certain counties for which counties the constitution establishes a separate court of
appeals called St. Louis Court of Appeals. The provision complained of, then, is found
in the constitution itself and it is the constitution that makes the apportionment of
territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is unconstitutional
and void because it is also repugnant to equal-protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the reasons
already stated, the next inquiry is whether or not the entire Act should be avoided.
In seeking the legislative intent, the presumption is against any
mutilation of a statute, and the courts will resort to elimination only where
an unconstitutional provision is interjected into a statute otherwise valid,
and is so independent and separable that its removal will leave the
constitutional features and purposes of the act substantially unaffected by
the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485;
55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235,
240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.)
In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the wellestablished rule concerning partial invalidity of statutes in the following
language:
. . . where part of the a statute is void, as repugnant to the Organic
Law, while another part is valid, the valid portion, if separable from the
valid, may stand and be enforced. But in order to do this, the valid portion
must be in so far independent of the invalid portion that it is fair to
presume that the Legislative would have enacted it by itself if they had
supposed that they could not constitutionally enact the other. (Mutual Loan
Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S. R., 446; Supervisors
of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou.,
963.) Enough must remain to make a complete, intelligible, and valid
statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga.,
117; 63 S. E., 798.) The void provisions must be eliminated without causing
results affecting the main purpose of the Act, in a manner contrary to the
intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47
Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S.,
794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs.
Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State
vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the
invalid part of a statute can have no legal force or efficacy for any purpose
whatever, and what remains must express the legislative will,
independently of the void part, since the court has no power to legislate.
(State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide,
also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan
and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup.
Ct. Rep., 912; 6 R.C.L., 121.)

It is contended that even if section 11, which makes the Probation Act
applicable only in those provinces in which the respective provincial boards provided
for the salaries of probation officers were inoperative on constitutional grounds, the
remainder of the Act would still be valid and may be enforced. We should be inclined
to accept the suggestions but for the fact that said section is, in our opinion, is
inseparably linked with the other portions of the Act that with the elimination of the
section what would be left is the bare idealism of the system, devoid of any practical
benefit to a large number of people who may be deserving of the intended beneficial
result of that system. The clear policy of the law, as may be gleaned from a careful
examination of the whole context, is to make the application of the system
dependent entirely upon the affirmative action of the different provincial boards
through appropriation of the salaries for probation officers at rates not lower than
those provided for provincial fiscals. Without such action on the part of the various
boards, no probation officers would be appointed by the Secretary of Justice to act in
the provinces. The Philippines is divided or subdivided into provinces and it needs no
argument to show that if not one of the provinces and this is the actual situation
now appropriate the necessary fund for the salary of a probation officer, probation
under Act No. 4221 would be illusory. There can be no probation without a probation
officer. Neither can there be a probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall supervise and
visit the probationer. Every probation officer is given, as to the person placed in
probation under his care, the powers of the police officer. It is the duty of the
probation officer to see that the conditions which are imposed by the court upon the
probationer under his care are complied with. Among those conditions, the following
are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious habits;
(b) Shall avoid places or persons of disreputable or harmful character;
(c) Shall report to the probation officer as directed by the court or probation
officers;
(d) Shall permit the probation officer to visit him at reasonable times at his
place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of the
probation officer concerning his conduct or condition; "(f) Shall endeavor to
be employed regularly; "(g) Shall remain or reside within a specified place
or locality;
(f) Shall make reparation or restitution to the aggrieved parties for actual
damages or losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time make;
and
(h) Shall refrain from violating any law, statute, ordinance, or any by-law or
regulation, promulgated in accordance with law.

The court is required to notify the probation officer in writing of the period and
terms of probation. Under section 4, it is only after the period of probation, the
submission of a report of the probation officer and appropriate finding of the court
that the probationer has complied with the conditions of probation that probation
may be definitely terminated and the probationer finally discharged from
supervision. Under section 5, if the court finds that there is non-compliance with said
conditions, as reported by the probation officer, it may issue a warrant for the arrest
of the probationer and said probationer may be committed with or without bail.
Upon arraignment and after an opportunity to be heard, the court may revoke,
continue or modify the probation, and if revoked, the court shall order the execution
of the sentence originally imposed. Section 6 prescribes the duties of probation
officers: "It shall be the duty of every probation officer to furnish to all persons
placed on probation under his supervision a statement of the period and conditions
of their probation, and to instruct them concerning the same; to keep informed
concerning their conduct and condition; to aid and encourage them by friendly
advice and admonition, and by such other measures, not inconsistent with the
conditions imposed by court as may seem most suitable, to bring about
improvement in their conduct and condition; to report in writing to the court having
jurisdiction over said probationers at least once every two months concerning their
conduct and condition; to keep records of their work; make such report as are
necessary for the information of the Secretary of Justice and as the latter may
require; and to perform such other duties as are consistent with the functions of the
probation officer and as the court or judge may direct. The probation officers
provided for in this Act may act as parole officers for any penal or reformatory
institution for adults when so requested by the authorities thereof, and, when
designated by the Secretary of Justice shall act as parole officer of persons released
on parole under Act Number Forty-one Hundred and Three, without additional
compensation."
It is argued, however, that even without section 11 probation officers maybe
appointed in the provinces under section 10 of Act which provides as follows:
There is hereby created in the Department of Justice and subject to
its supervision and control, a Probation Office under the direction of a Chief
Probation Officer to be appointed by the Governor-General with the advise
and consent of the Senate who shall receive a salary of four eight hundred
pesos per annum. To carry out this Act there is hereby appropriated out of
any funds in the Insular Treasury not otherwise appropriated, the sum of
fifty thousand pesos to be disbursed by the Secretary of Justice, who is
hereby authorized to appoint probation officers and the administrative
personnel of the probation officer under civil service regulations from
among those who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the compensation of
such probation officers and administrative personnel until such positions
shall have been included in the Appropriation Act.
But the probation officers and the administrative personnel referred to in the
foregoing section are clearly not those probation officers required to be appointed
for the provinces under section 11. It may be said, reddendo singula singulis, that
the probation officers referred to in section 10 above-quoted are to act as such, not
in the various provinces, but in the central office known as the Probation Office
established in the Department of Justice, under the supervision of the Chief
Probation Officer. When the law provides that "the probation officer" shall investigate
and make reports to the court (secs. 1 and 4); that "the probation officer" shall
supervise and visit the probationer (sec. 2; sec. 6, par. d); that the probationer shall
report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer

officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries
on the part of "the probation officer" concerning his conduct or condition (sec. 3, par.
4); that the court shall notify "the probation officer" in writing of the period and
terms of probation (sec. 3, last par.), it means the probation officer who is in charge
of a particular probationer in a particular province. It never could have been
intention of the legislature, for instance, to require the probationer in Batanes, to
report to a probationer officer in the City of Manila, or to require a probation officer
in Manila to visit the probationer in the said province of Batanes, to place him under
his care, to supervise his conduct, to instruct him concerning the conditions of his
probation or to perform such other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many probation
officers as there are provinces or groups of provinces is, of course possible. But this
would be arguing on what the law may be or should be and not on what the law is.
Between is and ought there is a far cry. The wisdom and propriety of legislation is
not for us to pass upon. We may think a law better otherwise than it is. But much as
has been said regarding progressive interpretation and judicial legislation we decline
to amend the law. We are not permitted to read into the law matters and provisions
which are not there. Not for any purpose not even to save a statute from the
doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to make
the Insular Government defray the salaries of probation officers in the provinces but
to make the provinces defray them should they desire to have the Probation Act
apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this
Act", is to be applied, among other things, for the salaries of probation officers in the
central office at Manila. These probation officers are to receive such compensations
as the Secretary of Justice may fix "until such positions shall have been included in
the Appropriation Act". It was the intention of the legislature to empower the
Secretary of Justice to fix the salaries of the probation officers in the provinces or
later on to include said salaries in an appropriation act. Considering, further, that the
sum of P50,000 appropriated in section 10 is to cover, among other things, the
salaries of the administrative personnel of the Probation Office, what would be left of
the amount can hardly be said to be sufficient to pay even nominal salaries to
probation officers in the provinces. We take judicial notice of the fact that there are
48 provinces in the Philippines and we do not think it is seriously contended that,
with the fifty thousand pesos appropriated for the central office, there can be in
each province, as intended, a probation officer with a salary not lower than that of a
provincial fiscal. If this a correct, the contention that without section 11 of Act No.
4221 said act is complete is an impracticable thing under the remainder of the Act,
unless it is conceded that in our case there can be a system of probation in the
provinces without probation officers.
Probation as a development of a modern penology is a commendable system.
Probation laws have been enacted, here and in other countries, to permit what
modern criminologist call the "individualization of the punishment", the adjustment
of the penalty to the character of the criminal and the circumstances of his
particular case. It provides a period of grace in order to aid in the rehabilitation of a
penitent offender. It is believed that, in any cases, convicts may be reformed and
their development into hardened criminals aborted. It, therefore, takes advantage of
an opportunity for reformation and avoids imprisonment so long as the convicts
gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358;
72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664,
665.) The Welfare of society is its chief end and aim. The benefit to the individual
convict is merely incidental. But while we believe that probation is commendable as
a system and its implantation into the Philippines should be welcomed, we are

forced by our inescapable duty to set the law aside because of the repugnancy to
our fundamental law.
In arriving at this conclusion, we have endeavored to consider the different
aspects presented by able counsel for both parties, as well in their memorandums
as in their oral argument. We have examined the cases brought to our attention, and
others we have been able to reach in the short time at our command for the study
and deliberation of this case. In the examination of the cases and in then analysis of
the legal principles involved we have inclined to adopt the line of action which in our
opinion, is supported better reasoned authorities and is more conducive to the
general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the
conflict of authorities, we have declined to be bound by certain adjudicated cases
brought to our attention, except where the point or principle is settled directly or by
clear implication by the more authoritative pronouncements of the Supreme Court of
the United States. This line of approach is justified because:
(a) The constitutional relations between the Federal and the State
governments of the United States and the dual character of the American
Government is a situation which does not obtain in the Philippines;
(b) The situation of s state of the American Union of the District of Columbia
with reference to the Federal Government of the United States is not the
situation of the province with respect to the Insular Government (Art. I, sec.
8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs.
Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the United
States do not embrace the integrated judicial system of the Philippines
(Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317);
(d) "General propositions do not decide concrete cases" (Justice Holmes in
Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and,
"to keep pace with . . . new developments of times and circumstances"
(Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899],
96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec.
1919, 141, 142), fundamental principles should be interpreted having in
view existing local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the writ of
prohibition is, accordingly, granted. Without any pronouncement regarding costs. So
ordered.

G.R. No. 76633 October 18, 1988

EASTERN SHIPPING LINES, INC., petitioner,

vs.
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA), MINISTER
OF LABOR AND EMPLOYMENT, HEARING OFFICER ABDUL BASAR and
KATHLEEN D. SACO, respondents.
Jimenea, Dala & Zaragoza Law Office for petitioner.
The Solicitor General for public respondent.
Dizon Law Office for respondent Kathleen D. Saco.

CRUZ, J.:
The private respondent in this case was awarded the sum of P192,000.00 by the
Philippine Overseas Employment Administration (POEA) for the death of her
husband. The decision is challenged by the petitioner on the principal ground that
the POEA had no jurisdiction over the case as the husband was not an overseas
worker.
Vitaliano Saco was Chief Officer of the M/V Eastern Polaris when he was killed in an
accident in Tokyo, Japan, March 15, 1985. His widow sued for damages under
Executive Order No. 797 and Memorandum Circular No. 2 of the POEA. The
petitioner, as owner of the vessel, argued that the complaint was cognizable not by
the POEA but by the Social Security System and should have been filed against the
State Insurance Fund. The POEA nevertheless assumed jurisdiction and after
considering the position papers of the parties ruled in favor of the complainant. The
award consisted of P180,000.00 as death benefits and P12,000.00 for burial
expenses.
The petitioner immediately came to this Court, prompting the Solicitor General to
move for dismissal on the ground of non-exhaustion of administrative remedies.
Ordinarily, the decisions of the POEA should first be appealed to the National Labor
Relations Commission, on the theory inter alia that the agency should be given an
opportunity to correct the errors, if any, of its subordinates. This case comes under
one of the exceptions, however, as the questions the petitioner is raising are
essentially questions of law. 1 Moreover, the private respondent himself has not
objected to the petitioner's direct resort to this Court, observing that the usual
procedure would delay the disposition of the case to her prejudice.
The Philippine Overseas Employment Administration was created under Executive
Order No. 797, promulgated on May 1, 1982, to promote and monitor the overseas
employment of Filipinos and to protect their rights. It replaced the National Seamen
Board created earlier under Article 20 of the Labor Code in 1974. Under Section 4(a)
of the said executive order, the POEA is vested with "original and exclusive
jurisdiction over all cases, including money claims, involving employee-employer
relations arising out of or by virtue of any law or contract involving Filipino contract
workers, including seamen." These cases, according to the 1985 Rules and

Regulations on Overseas Employment issued by the POEA, include "claims for death,
disability and other benefits" arising out of such employment. 2
The petitioner does not contend that Saco was not its employee or that the claim of
his widow is not compensable. What it does urge is that he was not an overseas
worker but a 'domestic employee and consequently his widow's claim should have
been filed with Social Security System, subject to appeal to the Employees
Compensation Commission.
We see no reason to disturb the factual finding of the POEA that Vitaliano Saco was
an overseas employee of the petitioner at the time he met with the fatal accident in
Japan in 1985.
Under the 1985 Rules and Regulations on Overseas Employment, overseas
employment is defined as "employment of a worker outside the Philippines,
including employment on board vessels plying international waters, covered by a
valid contract. 3 A contract worker is described as "any person working or who has
worked overseas under a valid employment contract and shall include seamen" 4 or
"any person working overseas or who has been employed by another which may be
a local employer, foreign employer, principal or partner under a valid employment
contract and shall include seamen." 5 These definitions clearly apply to Vitaliano
Saco for it is not disputed that he died while under a contract of employment with
the petitioner and alongside the petitioner's vessel, the M/V Eastern Polaris, while
berthed in a foreign country. 6
It is worth observing that the petitioner performed at least two acts which constitute
implied or tacit recognition of the nature of Saco's employment at the time of his
death in 1985. The first is its submission of its shipping articles to the POEA for
processing, formalization and approval in the exercise of its regulatory power over
overseas employment under Executive Order NO. 797. 7 The second is its
payment 8 of the contributions mandated by law and regulations to the Welfare Fund
for Overseas Workers, which was created by P.D. No. 1694 "for the purpose of
providing social and welfare services to Filipino overseas workers."
Significantly, the office administering this fund, in the receipt it prepared for the
private respondent's signature, described the subject of the burial benefits as
"overseas contract worker Vitaliano Saco." 9 While this receipt is certainly not
controlling, it does indicate, in the light of the petitioner's own previous acts, that
the petitioner and the Fund to which it had made contributions considered Saco to
be an overseas employee.
The petitioner argues that the deceased employee should be likened to the
employees of the Philippine Air Lines who, although working abroad in its
international flights, are not considered overseas workers. If this be so, the petitioner
should not have found it necessary to submit its shipping articles to the POEA for
processing, formalization and approval or to contribute to the Welfare Fund which is
available only to overseas workers. Moreover, the analogy is hardly appropriate as
the employees of the PAL cannot under the definitions given be considered seamen
nor are their appointments coursed through the POEA.
The award of P180,000.00 for death benefits and P12,000.00 for burial expenses
was made by the POEA pursuant to its Memorandum Circular No. 2, which became
effective on February 1, 1984. This circular prescribed a standard contract to be
adopted by both foreign and domestic shipping companies in the hiring of Filipino

seamen for overseas employment. A similar contract had earlier been required by
the National Seamen Board and had been sustained in a number of cases by this
Court. 10 The petitioner claims that it had never entered into such a contract with the
deceased Saco, but that is hardly a serious argument. In the first place, it should
have done so as required by the circular, which specifically declared that "all parties
to the employment of any Filipino seamen on board any ocean-going vessel are
advised to adopt and use this employment contract effective 01 February 1984 and
to desist from using any other format of employment contract effective that date." In
the second place, even if it had not done so, the provisions of the said circular are
nevertheless deemed written into the contract with Saco as a postulate of the police
power of the State. 11
But the petitioner questions the validity of Memorandum Circular No. 2 itself as
violative of the principle of non-delegation of legislative power. It contends that no
authority had been given the POEA to promulgate the said regulation; and even with
such authorization, the regulation represents an exercise of legislative discretion
which, under the principle, is not subject to delegation.
The authority to issue the said regulation is clearly provided in Section 4(a) of
Executive Order No. 797, reading as follows:
... The governing Board of the Administration (POEA), as hereunder
provided shall promulgate the necessary rules and regulations to
govern the exercise of the adjudicatory functions of the
Administration (POEA).
Similar authorization had been granted the National Seamen Board, which, as earlier
observed, had itself prescribed a standard shipping contract substantially the same
as the format adopted by the POEA.
The second challenge is more serious as it is true that legislative discretion as to the
substantive contents of the law cannot be delegated. What can be delegated is the
discretion to determine how the law may be enforced, notwhat the law shall be. The
ascertainment of the latter subject is a prerogative of the legislature. This
prerogative cannot be abdicated or surrendered by the legislature to the delegate.
Thus, in Ynot v. Intermediate Apellate Court 12 which annulled Executive Order No.
626, this Court held:
We also mark, on top of all this, the questionable manner of the
disposition of the confiscated property as prescribed in the
questioned executive order. It is there authorized that the seized
property shall be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of carabaos.'
(Italics supplied.) The phrase "may see fit" is an extremely
generous and dangerous condition, if condition it is. It is laden with
perilous opportunities for partiality and abuse, and even
corruption. One searches in vain for the usual standard and the
reasonable guidelines, or better still, the limitations that the
officers must observe when they make their distribution. There is
none. Their options are apparently boundless. Who shall be the
fortunate beneficiaries of their generosity and by what criteria
shall they be chosen? Only the officers named can supply the
answer, they and they alone may choose the grantee as they see

fit, and in their own exclusive discretion. Definitely, there is here a

'roving commission a wide and sweeping authority that is not
canalized within banks that keep it from overflowing,' in short a
clearly profligate and therefore invalid delegation of legislative
powers.

National Seamen Board) in requiring the model contract is not unlimited as there is a
sufficient standard guiding the delegate in the exercise of the said authority. That
standard is discoverable in the executive order itself which, in creating the Philippine
Overseas Employment Administration, mandated it to protect the rights of overseas
Filipino workers to "fair and equitable employment practices."

There are two accepted tests to determine whether or not there is a valid delegation
of legislative power, viz, the completeness test and the sufficient standard test.
Under the first test, the law must be complete in all its terms and conditions when it
leaves the legislature such that when it reaches the delegate the only thing he will
have to do is enforce it. 13 Under the sufficient standard test, there must be
adequate guidelines or stations in the law to map out the boundaries of the
delegate's authority and prevent the delegation from running riot. 14

Parenthetically, it is recalled that this Court has accepted as sufficient standards

"Public interest" in People v. Rosenthal 15 "justice and equity" in Antamok Gold Fields
v. CIR 16 "public convenience and welfare" in Calalang v. Williams 17 and "simplicity,
economy and efficiency" in Cervantes v. Auditor General, 18 to mention only a few
cases. In the United States, the "sense and experience of men" was accepted
in Mutual Film Corp. v. Industrial Commission, 19 and "national security"
in Hirabayashi v. United States. 20

Both tests are intended to prevent a total transference of legislative authority to the
delegate, who is not allowed to step into the shoes of the legislature and exercise a
power essentially legislative.

It is not denied that the private respondent has been receiving a monthly death
benefit pension of P514.42 since March 1985 and that she was also paid a P1,000.00
funeral benefit by the Social Security System. In addition, as already observed, she
also received a P5,000.00 burial gratuity from the Welfare Fund for Overseas
Workers. These payments will not preclude allowance of the private respondent's
claim against the petitioner because it is specifically reserved in the standard
contract of employment for Filipino seamen under Memorandum Circular No. 2,
Series of 1984, that

The principle of non-delegation of powers is applicable to all the three major powers
of the Government but is especially important in the case of the legislative power
because of the many instances when its delegation is permitted. The occasions are
rare when executive or judicial powers have to be delegated by the authorities to
which they legally certain. In the case of the legislative power, however, such
occasions have become more and more frequent, if not necessary. This had led to
the observation that the delegation of legislative power has become the rule and its
non-delegation the exception.
The reason is the increasing complexity of the task of government and the growing
inability of the legislature to cope directly with the myriad problems demanding its
attention. The growth of society has ramified its activities and created peculiar and
sophisticated problems that the legislature cannot be expected reasonably to
comprehend. Specialization even in legislation has become necessary. To many of
the problems attendant upon present-day undertakings, the legislature may not
have the competence to provide the required direct and efficacious, not to say,
specific solutions. These solutions may, however, be expected from its delegates,
who are supposed to be experts in the particular fields assigned to them.
The reasons given above for the delegation of legislative powers in general are
particularly applicable to administrative bodies. With the proliferation of specialized
activities and their attendant peculiar problems, the national legislature has found it
more and more necessary to entrust to administrative agencies the authority to
issue rules to carry out the general provisions of the statute. This is called the
"power of subordinate legislation."
With this power, administrative bodies may implement the broad policies laid down
in a statute by "filling in' the details which the Congress may not have the
opportunity or competence to provide. This is effected by their promulgation of what
are known as supplementary regulations, such as the implementing rules issued by
the Department of Labor on the new Labor Code. These regulations have the force
and effect of law.
Memorandum Circular No. 2 is one such administrative regulation. The model
contract prescribed thereby has been applied in a significant number of the cases
without challenge by the employer. The power of the POEA (and before it the

Section C. Compensation and Benefits.

1. In case of death of the seamen during the term of his Contract,
the employer shall pay his beneficiaries the amount of:
a. P220,000.00 for master and chief engineers
b. P180,000.00 for other officers, including radio
operators and master electrician
c. P 130,000.00 for ratings.
2. It is understood and agreed that the benefits mentioned above
shall be separate and distinct from, and will be in addition to
whatever benefits which the seaman is entitled to under Philippine
laws. ...
3. ...
c. If the remains of the seaman is buried in the
Philippines, the owners shall pay the
beneficiaries of the seaman an amount not
exceeding P18,000.00 for burial expenses.
The underscored portion is merely a reiteration of Memorandum Circular No. 22,
issued by the National Seamen Board on July 12,1976, providing an follows:

Income Benefits under this Rule Shall be Considered Additional

Benefits.
All compensation benefits under Title II, Book Four of the Labor
Code of the Philippines (Employees Compensation and State
Insurance Fund) shall be granted, in addition to whatever benefits,
gratuities or allowances that the seaman or his beneficiaries may
be entitled to under the employment contract approved by the
NSB. If applicable, all benefits under the Social Security Law and
the Philippine Medicare Law shall be enjoyed by the seaman or his
beneficiaries in accordance with such laws.
The above provisions are manifestations of the concern of the State for the working
class, consistently with the social justice policy and the specific provisions in the
Constitution for the protection of the working class and the promotion of its interest.
One last challenge of the petitioner must be dealt with to close t case. Its argument
that it has been denied due process because the same POEA that issued
Memorandum Circular No. 2 has also sustained and applied it is an uninformed
criticism of administrative law itself. Administrative agencies are vested with two
basic powers, the quasi-legislative and the quasi-judicial. The first enables them to
promulgate implementing rules and regulations, and the second enables them to
interpret and apply such regulations. Examples abound: the Bureau of Internal
Revenue adjudicates on its own revenue regulations, the Central Bank on its own
circulars, the Securities and Exchange Commission on its own rules, as so too do the
Philippine Patent Office and the Videogram Regulatory Board and the Civil
Aeronautics Administration and the Department of Natural Resources and so on ad
infinitumon their respective administrative regulations. Such an arrangement has
been accepted as a fact of life of modern governments and cannot be considered
violative of due process as long as the cardinal rights laid down by Justice Laurel in
the landmark case of Ang Tibay v. Court of Industrial Relations 21 are observed.
Whatever doubts may still remain regarding the rights of the parties in this case are
resolved in favor of the private respondent, in line with the express mandate of the
Labor Code and the principle that those with less in life should have more in law.
When the conflicting interests of labor and capital are weighed on the scales of
social justice, the heavier influence of the latter must be counter-balanced by the
sympathy and compassion the law must accord the underprivileged worker. This is
only fair if he is to be given the opportunity and the right to assert and defend his
cause not as a subordinate but as a peer of management, with which he can
negotiate on even plane. Labor is not a mere employee of capital but its active and
equal partner.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. The
temporary restraining order dated December 10, 1986 is hereby LIFTED. It is so
ordered.

G.R. No. 111812 May 31, 1995

DIONISIO M. RABOR, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.

FELICIANO, J.:
Petitioner Dionisio M. Rabor is a Utility Worker in the Office of the Mayor, Davao City.
He entered the government service as a Utility worker on 10 April 1978 at the age of
55 years.
Sometime in May 1991, 1 Alma, D. Pagatpatan, an official in the Office of the Mayor
of Davao City, advised Dionisio M. Rabor to apply for retirement, considering that he
had already reached the age of sixty-eight (68) years and seven (7) months, with
thirteen (13) years and one (1) month of government service. Rabor responded to
this advice by exhibiting a "Certificate of Membership" 2 issued by the Government
Service Insurance System ("GSIS") and dated 12 May 1988. At the bottom of this
"Certificate of Membership" is a typewritten statement of the following tenor:
"Service extended to comply 15 years service reqts." This statement is followed by a
non-legible initial with the following date "2/28/91."
Thereupon, the Davao City Government, through Ms. Pagatpatan, wrote to the
Regional Director of the Civil Service Commission, Region XI, Davao City ("CSRO-XI"),
informing the latter of the foregoing and requesting advice "as to what action
[should] be taken on this matter."
In a letter dated 26 July 1991, Director Filemon B. Cawad of CSRO-XI advised Davao
City Mayor Rodrigo R. Duterte as follows:
Please be informed that the extension of services of Mr. Rabor is
contrary to M.C. No. 65 of the Office of the President, the relevant
portion of which is hereunder quoted:
Officials and employees who have reached the
compulsory retirement age of 65 years shall not
be retained the service, except for extremely
meritorious reasons in which case the retention
shall not exceed six (6) months.
IN VIEW WHEREFORE, please be advised that the services of Mr.
Dominador [M.] Rabor as Utility Worker in that office, is already
non-extend[i]ble. 3
Accordingly, on 8 August l991, Mayor Duterte furnished a copy of the 26 July 1991
letter of Director Cawad to Rabor and advised him "to stop reporting for work
effective August 16, 1991." 4

Petitioner Rabor then sent to the Regional Director, CSRO-XI, a letter dated 14
August 1991, asking for extension of his services in the City Government until he
"shall have completed the fifteen (15) years service [requirement] in the
Government so that [he] could also avail of the benefits of the retirement laws given
to employees of the Government." The extension he was asking for was about two
(2) years. Asserting that he was "still in good health and very able to perform the
duties and functions of [his] position as Utility Worker," Rabor sought "extension of
[his] service as an exception to Memorandum Circular No. 65 of the Office of the
President." 5 This request was denied by Director Cawad on 15 August 1991.
Petitioner Rabor next wrote to the Office of the President on 29 January 1992
seeking reconsideration of the decision of Director Cawad, CSRO-XI. The Office of the
President referred Mr. Rabor's letter to the Chairman of the Civil Service Commission
on 5 March 1992.
In its Resolution No. 92-594, dated 28 April 1992, the Civil Service Commission
dismissed the appeal of Mr. Rabor and affirmed the action of Director Cawad
embodied in the latter's letter of 26 July 1991. This Resolution stated in part:
In his appeal, Rabor requested that he be allowed to continue
rendering services as Utility Worker in order to complete the
fifteen (15) year service requirement under P.D. 1146.
CSC Memorandum Circular No. 27, s. 1990 provides, in part:
1. Any request for extension of service of
compulsory retirees to complete the fifteen
years service requirement for retirement shall be
allowed only to permanent appointees in the
career service who are regular members of the
Government Service Insurance System (GSIS)
and shall be granted for a period of not
exceeding one (1) year.
Considering that as early as October 18, 1988, Rabor was already
due for retirement, his request for further extension of service
cannot be given due course. 6 (Emphasis in the original)
On 28 October 1992, Mr. Rabor sought reconsideration of Resolution No. 92-594 of
the Civil Service Commission this time invoking the Decision of this Court in Cena v.
Civil Service Commission. 7 Petitioner also asked for reinstatement with back salaries
and benefits, having been separated from the government service effective 16
August 1991. Rabor's motion for reconsideration was denied by the Commission.
Petitioner Rabor sent another letter dated 16 April 1993 to the Office of the Mayor,
Davao City, again requesting that he be allowed to continue rendering service to the
Davao City Government as Utility Worker in order to complete the fifteen (15) years
service requirement under P.D. No. 1146. This request was once more denied by
Mayor Duterte in a letter to petitioner dated 19 May 1993. In this letter, Mayor
Duterte pointed out that, underCena grant of the extension of service was
discretionary on the part of the City Mayor, but that he could not grant the extension
requested. Mayor Duterte's letter, in relevant part, read:

The matter was referred to the City Legal Office and the Chairman
of the Civil Service Commission, in the advent of the decision of
the Supreme Court in the Cena vs. CSC, et al. (G.R. No. 97419
dated July 3, 1992), for legal opinion. Both the City Legal Officer
and the Chairman of the Civil Service Commission are one in these
opinion that extending you an appointment in order that you may
be able to complete the fifteen-year service requirement is
discretionary [on the part of] the City Mayor.
Much as we desire to extend you an appointment but
circumstances are that we can no longer do so.As you are already
nearing your 70th birthday may no longer be able to perform the
duties attached to your position. Moreover, the position you had
vacated was already filled up.
We therefore regret to inform you that we cannot act favorably on
your request. 8 (Emphases supplied)
At this point, Mr. Rabor decided to come to this Court. He filed a Letter/Petition dated
6 July 1993 appealing from Civil Service Resolution No. 92-594 and from Mayor
Duterte's letter of 10 May 1993.
The Court required petitioner Rabor to comply with the formal requirements for
instituting a special civil action ofcertiorari to review the assailed Resolution of the
Civil Service Commission. In turn, the Commission was required to comment on
petitioner's Letter/Petition. 9 The Court subsequently noted petitioner's Letter of 13
September 1993 relating to compliance with the mentioned formal requirements
and directed the Clerk of Court to advise petitioner to engage the services of
counsel or to ask for legal assistance from the Public Attorney's Office (PAO). 10
The Civil Service Commission, through the Office of the Solicitor General, filed its
comment on 16 November 1993. The Court then resolved to give due course to the
Petition and required the parties to file memoranda. Both the Commission and Mr.
Rabor (the latter through PAO counsel) did so.
In this proceeding, petitioner Rabor contends that his claim falls squarely within the
ruling of this Court in Cena v. Civil Service Commission. 11
Upon the other hand, the Commission seeks to distinguish this case from Cena. The
Commission, through the Solicitor General, stressed that in Cena, this Court had
ruled that the employer agency, the Land Registration Authority of the Department
of Justice, was vested with discretion to grant to Cena the extension requested by
him. The Land Registration Authority had chosen not to exercise its discretion to
grant or deny such extension. In contrast, in the instant case, the Davao City
Government did exercise its discretion on the matter and decided to deny the
extension sought by petitioner Rabor for legitimate reasons.
While the Cena decision is barely three (3) years old, the Court considers that it
must reexamine the doctrine ofCena and the theoretical and policy underpinnings
thereof. 12
We start by recalling the factual setting of Cena.

Gaudencio Cena was appointed Registrar of the Register of Deeds of Malabon,

Metropolitan Manila, on 16 July 1987. He reached the compulsory retirement age of
sixty-five (65) years on 22 January 1991. By the latter date, his government service
would have reached a total of eleven (11) years, nine (9) months and six (6) days.
Before reaching his 65th birthday, Cena requested the Secretary of Justice, through
the Administrator of the Land Registration Authority ("LRA") that he be allowed to
extend his service to complete the fifteen-year service requirement to enable him to
retire with the full benefit of an Old-Age Pension under Section 11 (b) of P.D. No.
1146. If Cena's request were granted, he would complete fifteen (15) years of
government service on 15 April 1994, at the age of sixty-eight (68) years.
The LRA Administrator sought a ruling from the Civil Service Commission on whether
or not Cena's request could be granted considering that Cena was covered by Civil
Service Memorandum No. 27, Series of 1990. On 17 October 1990, the Commission
allowed Cena a one (1) year extension of his service from 22 January 1991 to 22
January 1992 under its Memorandum Circular No. 27. Dissatisfied, Cena moved for
reconsideration, without success. He then came to this Court, claiming that he was
entitled to an extension of three (3) years, three (3) months and twenty-four (24)
days to complete the fifteen-year service requirement for retirement with full
benefits under Section 11 (b) of P.D. No. 1146.
This Court granted Cena' s petition in its Decision of 3 July 1992. Speaking through
Mr. Justice Medialdea, the Court held that a government employee who has reached
the compulsory retirement age of sixty-five (65) years, but at the same time has not
yet completed fifteen (15) years of government service required under Section 11
(b) of P.D. No. 1146 to qualify for the Old-Age Pension Benefit, may be granted an
extension of his government service for such period of time as may be necessary to
"fill up" or comply with the fifteen (15)-year service requirement. The Court also held
that the authority to grant the extension was a discretionary one vested in the head
of the agency concerned. Thus the Court concluded:
Accordingly, the Petition is GRANTED. The Land Registration
Authority (LRA) and Department of Justice has the discretion to
allow petitioner Gaudencio Cena to extend his 11 years, 9 months
and 6 days of governmentto complete the fifteen-year service so
that he may retire with full benefits under Section 11, paragraph
(b) of P.D. 1146. 13 (Emphases supplied)
The Court reached the above conclusion primarily on the basis of the "plain and
ordinary meaning" of Section 11 (b) of P.D. No. 1146. Section 11 may be quoted in
its entirety:
Sec. 11 Conditions for Old-Age Pension. (a) Old-Age Pension
shall be paid to a member who
(1) has at least fifteen (15) years of service;
(2) is at least sixty (60) years of age; and
(3) is separated from the service.
(b) unless the service is extended by appropriate authorities,
retirement shall be compulsory for an employee at sixty-five-(65)

years of age with at least fifteen (15) years of service; Provided,

that if he has less than fifteen (15) years of service, he shall he
allowed to continue in the service to completed the fifteen (15)
years. (Emphases supplied)
The Court went on to rely upon the canon of liberal construction which has often
been invoked in respect of retirement statutes:
Being remedial in character, a statute granting a pension or
establishing [a] retirement plan should be liberally construed and
administered in favor of persons intended to be benefitted thereby.
The liberal approach aims to achieve the humanitarian purposes of
the law in order that efficiency, security and well-being of
government employees may be enhanced. 14 (Citations omitted)
While Section 11 (b) appeared cast in verbally unqualified terms, there were (and
still are) two (2) administrative issuances which prescribe limitations on the
extension of service that may be granted to an employee who has reached sixty-five
(65) years of age.
The first administrative issuance is Civil Service Commission Circular No. 27, Series
of 1990, which should be quoted in its entirety:
TO : ALL HEADS OF DEPARTMENTS, BUREAUS AND AGENCIES OF
THE NATIONAL/LOCAL GOVERNMENTS INCLUDING GOVERNMENTOWNED AND/OR CONTROLLED CORPORATIONS WITH ORIGINAL
CHARTERS.
SUBJECT : Extension of Service of Compulsory Retiree to Complete
the Fifteen Years Service Requirement for Retirement Purposes.
Pursuant to CSC Resolution No. 90-454 dated May 21, 1990, the
Civil Service Commission hereby adopts and promulgates the
following policies and guidelines in the extension of services of
compulsory retirees to complete the fifteen years service
requirement for retirement purposes:
1. Any request for the extension of service of
compulsory retirees to complete the fifteen (15)
years service requirement for retirement shall be
allowed only to permanent appointees in the
career service who are regular members of the
Government Service Insurance System (GSIS),
and shall be granted for a period not exceeding
one (1) year.
2. Any request for the extension of service of
compulsory retiree to complete the fifteen (15)
years service requirement for retirement who
entered the government service at 57 years of
age or over upon prior grant of authority to
appoint him or her, shall no longer be granted.

3. Any request for the extension of service to

complete the fifteen (15) years service
requirement of retirement shall be filled not later
than three (3) years prior to the date of
compulsory retirement.

CATALINO
JR.
Executive

4. Any request for the extension of service of a

compulsory retiree who meets the minimum
number of years of service for retirement
purposes may be granted for six (6) months only
with no further extension.

Manila, June 14, 1988. 15 (Emphasis supplied)

Medialdea, J. resolved the challenges posed by the above two (2) administrative
regulations by, firstly, considering as invalid Civil Service Memorandum No. 27 and,
secondly, by interpreting the Office of the President's Memorandum Circular No. 65
as inapplicable to the case of Gaudencio T. Cena.

This Memorandum Circular shall take effect immediately.

(Emphases supplied)

We turn first to the Civil Service Commission's Memorandum Circular No. 27.
Medialdea, J. wrote:

The second administrative issuance Memorandum Circular No. 65 of the Office of

the President, dated 14 June 1988 provides:

The Civil Service Commission Memorandum Circular No. 27 being

in the nature of an administrative regulation, must be governed by
the principle thatadministrative regulations adopted under
legislative authority by a particular department must be in
harmony with the provisions of the law, and should be for the sole
purpose of carrying into effect its general provisions (People v.
Maceren, G.R. No. L-32166, October 18, 1977, 79 SCRA 450;
Teoxon v. Members of the Board of Administrators, L-25619, June
30, 1970, 33 SCRA 585; Manuel v. General Auditing Office, L28952, December 29, 1971, 42 SCRA 660; Deluao v. Casteel, L21906, August 29, 1969, 29 SCRA 350). . . . . The rule on limiting
to one the year the extension of service of an employee who has
reached the compulsory retirement age of sixty-five (65) years,
but has less than fifteen (15) years of service under Civil Service
Memorandum Circular No. 27, S. 1990, cannot likewise be
accorded validity because it has no relationship or connection with
any provision of P.D. 1146 supposed to be carried into effect. The
rule was an addition to or extension of the law, not merely a mode
of carrying it into effect. The Civil Service Commission has no
power to supply perceived omissions in P.D. 1146. 16 (Emphasis
supplied)

xxx xxx xxx

WHEREAS, this Office has been. receiving requests for
reinstatement and/or retention in the service of employees who
have reached the compulsory retirement age of 65 years, despite
the strict conditions provided for in Memorandum Circular No. 163,
dated March 5, 1968, as amended.
WHEREAS, the President has recently adopted a policy to adhere
more strictly to the law providing for compulsory retirement age of
65 years and, in extremely meritorious cases, to limit the service
beyond the age of 65 years to six (6) months only.
WHEREFORE, the pertinent provision of Memorandum Circular No.
163 or on the retention in the service of officials or employees who
have reached the compulsory retirement age of 65 years, is
hereby amended to read as follows:
Officials or employees who have reached the
compulsory retirement age of 65
yearsshall not be retained in the service, except
for extremely meritorious reasons in which case
the retention shall not exceed six (6) months.

It will be seen that Cena, in striking down Civil Service Commission Memorandum
No. 27, took a very narrow view on the question of what subordinate rule-making by
an administrative agency is permissible and valid. That restrictive view must be
contrasted with this Court's earlier ruling in People v. Exconde, 17 where Mr. Justice
J.B.L. Reyes said:

All heads of departments, bureaus, offices and instrumentalities of

the government including government-owned or controlled
corporations, are hereby enjoined to require their respective
offices to strictly comply with this circular.
This Circular shall take effect immediately.
By authority of the
President

It is well established in this jurisdiction that, while the making of

laws is a non-delegable activity that corresponds exclusively to
Congress, nevertheless, the latter may constitutionally delegate
authority and promulgate rules and regulations to implement a
given legislation and effectuate its policies, for the reason thatthe
legislature often finds it impracticable (if not impossible) to
anticipate and provide for the multifarious and complex
situations that may be met in carrying the law into effect. All that
is required is that the regulation should be germane to the objects
and purposes of the law; that the regulation be not in

contradiction with it, but conform to standards that the law

prescribes. 18 (Emphasis supplied)
In Tablarin v. Gutierrez, 19 the Court, in sustaining the validity of a MECS Order which
established passing a uniform admission test called the National Medical Admission
Test (NMAT) as a prerequisite for eligibility for admission into medical schools in the
Philippines, said:
The standards set for subordinate legislation in the exercise of
rule making authority by an administrative agency like the Board
of Medical Education are necessarily broad and highly abstract. As
explained by then Mr. Justice Fernando in Edu v. Ericta (35 SCRA
481 [1970])
The standards may be either
expressed or implied. If the former, the nondelegation objection is easily met. The Standard
though does not have to be spelled out
specifically. It could be implied from the policy
and purpose of the act considered as a whole. In
the Reflector Law, clearly the legislative
objective is public safety. What is sought to be
attained in Calalang v. William is "safe transit
upon the roads."
We believe and so hold that the necessary standards are set forth
in Section 1 of the 1959 Medical Act: "the standardization and
regulation of medical education" and in Section 5 (a) and 7 of the
same Act, the body of the statute itself, and that these considered
together are sufficient compliance with the requirements of the
non-delegation principle. 20 (Citations omitted; emphasis partly in
the original and partly supplied)
In Edu v. Ericta, 21 then Mr. Justice Fernando stressed the abstract and very general
nature of the standards which our Court has in prior case law upheld as sufficient for
purposes of compliance with the requirements for validity of subordinate or
administrative rule-making:
This Court has considered as sufficient standards, "public
welfare," (Municipality of Cardona v. Municipality of Binangonan,
36 Phil. 547 [1917]); "necessary in the interest of law and
order," (Rubi v. Provincial Board, 39 Phil. 660 [1919]); "public
interest," (People v. Rosenthal, 68 Phil. 328 [1939]); and "justice
and equity and substantial merits of the case," (International
Hardwood v. Pangil Federation of Labor, 17 Phil. 602
[1940]). 22(Emphasis supplied)

and unavoidable. All that may be reasonably; demanded is a showing that the
delegated legislation consisting of administrative regulations are germane to the
general purposes projected by the governing or enabling statute. This is the test
that is appropriately applied in respect of Civil Service Memorandum Circular No. 27,
Series of 1990, and to this test we now turn.
We consider that the enabling statute that should appropriately be examined is the
present Civil Service law found in Book V, Title I, Subtitle A, of Executive Order No.
292 dated 25 July 1987, otherwise known as the Administrative Code of 1987
and not alone P.D. No. 1146, otherwise known as the "Revised Government Service
Insurance Act of 1977." For the matter of extension of service of retirees who have
reached sixty-five (65) years of age is an area that is covered by both statutes and
not alone by Section 11 (b) of P.D. 1146. This is crystal clear from examination of
many provisions of the present civil service law.
Section 12 of the present Civil Service law set out in the 1987 Administrative Code
provides, in relevant part, as follows:
Sec. 12 Powers and Functions. The [Civil Service] Commission
shall have the following powers and functions:
xxx xxx xxx
(2) Prescribe, amend and enforce rules and regulations
for carrying into effect the provisions of the Civil Service
Law and other pertinent laws;
(3) Promulgate policies, standards and guidelines for the Civil
Service and adopt plans and programsto promote economical,
efficient and effective personnel administration in the
government;
xxx xxx xxx
(10) Formulate, administer and evaluate programs relative to
the development and retention of aqualified and competent work
force in the public service;
xxx xxx xxx
(14) Take appropriate action on all appointments and other
personnel matters in the Civil Serviceincluding extension of
service beyond retirement age;
xxx xxx xxx

Clearly, therefore, Cena when it required a considerably higher degree of detail in

the statute to be implemented, went against prevailing doctrine. It seems clear that
if the governing or enabling statute is quite detailed and specific to begin with, there
would be very little need (or occasion) for implementing administrative regulations.
It is, however, precisely the inability of legislative bodies to anticipate all (or many)
possible detailed situations in respect of any relatively complex subject matter, that
makes subordinate, delegated rule-making by administrative agencies so important

(17) Administer the retirement program for government officials

and employees, and accredit government services and evaluate
qualifications for retirement;
xxx xxx xxx

(19) Perform all functions properly belonging to a central

personnel agency and such other functions as may be provided by
law. (Emphasis supplied)
It was on the bases of the above quoted provisions of the 1987 Administrative Code
that the Civil Service Commission promulgated its Memorandum Circular No. 27. In
doing so, the Commission was acting as "the central personnel agency of the
government empowered to promulgate policies, standards and guidelines for
efficient, responsive and effective personnel administration in the government." 23 It
was also discharging its function of "administering the retirement program for
government officials and employees" and of "evaluat[ing] qualifications for
retirement."
In addition, the Civil Service Commission is charged by the 1987 Administrative
Code with providing leadership and assistance "in the development and retention of
qualified and efficient work force in the Civil Service" (Section 16 [10]) and with the
"enforcement of the constitutional and statutory provisions, relative to
retirement and the regulation for the effective implementation of the retirement of
government officials and employees" (Section 16 [14]).
We find it very difficult to suppose that the limitation of permissible extensions of
service after an employee has reached sixty-five (65) years of age has no
reasonable relationship or is not germane to the foregoing provisions of the present
Civil Service Law. The physiological and psychological processes associated with
ageing in human beings are in fact related to the efficiency and quality of the
service that may be expected from individual persons. The policy considerations
which guided the Civil Service Commission in limiting the maximum extension of
service allowable for compulsory retirees, were summarized by Grio-Aquino, J. in
her dissenting opinion in Cena:
Worth pondering also are the points raised by the Civil Service
Commission that extending the service of compulsory retirees for
longer than one (1) year would: (1) give a premium to latecomers in the government service and in effect discriminate
against those who enter the service at a younger age; (2) delay
the promotion of the latter and of next-in-rank employees; and
(3) prejudice the chances for employment of qualified young civil
service applicants who have already passed the various
government examination but must wait for jobs to be vacated by
"extendees" who have long passed the mandatory retirement age
but are enjoying extension of their government service to
complete 15 years so they may qualify for old-age
pension. 24 (Emphasis supplied).
Cena laid heavy stress on the interest of retirees or would be retirees, something
that is, in itself, quite appropriate. At the same time, however, we are bound to note
that there should be countervailing stress on the interests of the employer agency
and of other government employees as a whole. The results flowing from the striking
down of the limitation established in Civil Service Memorandum Circular No. 27 may
well be "absurd and inequitable," as suggested by Mme. Justice Grio-Aquino in her
dissenting opinion. An employee who has rendered only three (3) years of
government service at age sixty-five (65) can have his service extended for twelve
(12) years and finally retire at the age of seventy-seven (77). This reduces the
significance of the general principle of compulsory retirement at age sixty-five (65)
very close to the vanishing point.

The very real difficulties posed by the Cena doctrine for rational personnel
administration and management in the Civil Service, are aggravated when Cena is
considered together with the case of Toledo v. Civil Service
Commission. 25 Toledo involved the provisions of Rule III, Section 22, of the Civil
Service Rules on Personnel Action and Policies (CSRPAP) which prohibited the
appointment of persons fifty-seven (57) years old or above in government service
without prior approval of the Civil Service Commission. Civil Service Memorandum
Circular No. 5, Series of 1983 provided that a person fifty-seven (57) years of age
may be appointed to the Civil Service provided that the exigencies of the
government service so required and provided that the appointee possesses special
qualifications not possessed by other officers or employees in the Civil Service and
that the vacancy cannot be filled by promotion of qualified officers or employees of
the Civil Service. Petitioner Toledo was appointed Manager of the Education and
Information Division of the Commission on Elections when he was almost fifty-nine
(59) years old. No authority for such appointment had been obtained either from the
President of the Philippines or from the Civil Service Commission and the
Commission found that the other conditions laid down in Section 22 of Rule III,
CSRPAP, did not exist. The Court nevertheless struck down Section 22, Rule III on the
same exceedingly restrictive view of permissible administrative legislation
that Cena relied on. 26
When one combines the doctrine of Toledo with the ruling in Cena, very strange
results follow. Under these combined doctrines, a person sixty-four (64) years of age
may be appointed to the government service and one (1) year later may demand
extension of his service for the next fourteen (14) years; he would retire at age
seventy-nine (79). The net effect is thus that the general statutory policy of
compulsory retirement at sixty-five (65) years is heavily eroded and effectively
becomes unenforceable. That general statutory policy may be seen to embody the
notion that there should be a certain minimum turn-over in the government service
and that opportunities for government service should be distributed as broadly as
possible, specially to younger people, considering that the bulk of our population is
below thirty (30) years of age. That same general policy also reflects the life
expectancy of our people which is still significantly lower than the life expectancy of,
e.g., people in Northern and Western Europe, North America and Japan.
Our conclusion is that the doctrine of Cena should be and is hereby modified to this
extent: that Civil Service Memorandum Circular No. 27, Series of 1990, more
specifically paragraph (1) thereof, is hereby declared valid and effective. Section 11
(b) of P.D. No. 1146 must, accordingly, be read together with Memorandum Circular
No. 27. We reiterate, however, the holding in Cena that the head of the government
agency concerned is vested with discretionary authority to allow or disallow
extension of the service of an official or employee who has reached sixty-five (65)
years of age without completing fifteen (15) years of government service; this
discretion is, nevertheless, to be exercised conformably with the provisions of Civil
Service Memorandum Circular No. 27, Series of 1990.
We do not believe it necessary to deal specifically with Memorandum Circular No. 65
of the Office of the President dated 14 June 1988. It will be noted from the text
quoted supra (pp. 11-12) that the text itself of Memorandum Circular No. 65 (and for
that matter, that of Memorandum Circular No. 163, also of the Office of the
President, dated 5 March 1968) 27 does not purport to apply only to officers or
employees who have reached the age of sixty-five (65) years and who have at least
fifteen (l5) years of government service. We noted earlier that Cenainterpreted
Memorandum Circular No. 65 as referring only to officers and employees who have
both reached the compulsory retirement age of sixty-five (65) and completed the
fifteen (15) years of government service. Cena so interpreted this Memorandum

Circular precisely because Cena had reached the conclusion that employees who
have reached sixty-five (65) years of age, but who have less than fifteen (15) years
of government service, may be allowed such extension of service as may be needed
to complete fifteen (15) years of service. In other words,Cena read Memorandum
Circular No. 65 in such a way as to comfort with Cena's own conclusion reached
without regard to that Memorandum Circular. In view of the conclusion that we today
reached in the instant case, this last ruling of Cena is properly regarded as
merely orbiter.
We also do not believe it necessary to determine whether Civil Service Memorandum
Circular No. 27 is fully compatible with Office of the President's Memorandum
Circular No. 65; this question must be reserved for detailed analysis in some future
justiciable case.
Applying now the results of our reexamination of Cena to the instant case, we
believe and so hold that Civil Service Resolution No. 92-594 dated 28 April 1992
dismissing the appeal of petitioner Rabor and affirming the action of CSRO-XI
Director Cawad dated 26 July 1991, must be upheld and affirmed.
ACCORDINGLY, for all the foregoing, the Petition for Certiorari is hereby DISMISSED
for lack of merit. No pronouncement as to costs.

Promulgated:
November 27, 2008
x--------------------------------------------------------------------------- x

R E S O L U T I ON

TINGA, J.:

This administrative matter pertains to the latest of the spate of requests of

some of the members of the Supreme Court Medical and Dental Services (SCMDS)
Division in relation to the grant of hazard allowance.

SO ORDERED.

In the Courts Resolution[1] of 9 September 2003, the SCMDS personnel

were declared entitled to hazard pay according to the provisions of Republic Act
(R.A.)

No.

7305,[2] otherwise

known

as The

Magna

Carta

of

Public

Health

Workers. The resolution paved the way for the issuance of Administrative Circular
No. 57-2004[3] which prescribed the guidelines for the grant of hazard allowance in
favor of the SCMDS personnel. Now, eleven members of the same office: namely,
Ramon S. Armedilla, Celeste P. Vista, Consuelo M. Bernal, Remedios L. Patricio,
RE: ENTITLEMENT TO HAZARD PAY
OF SC MEDICAL AND DENTAL
CLINIC PERSONNEL,

A.M. No. 03-9-02-SC

Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO DE CASTRO, and
BRION, JJ.

Madonna Catherine G. Dimaisip, Elmer A. Ruez, Marybeth V. Jurado, Mary Ann D.

Barrientos, Angel S. Ambata, Nora T. Juat and Geslaine C. Juanquestion the wisdom
behind the allocation of hazard pay to the SCMDS personnel at large in the manner
provided in the said circular.

Administrative Circular No. 57-2004 (the subject Circular) initially classified

SCMDS employees according to the level of exposure to health hazards, as follows:
(a) physicians, dentists, nurses, medical technologists, nursing and dental aides, and
physical therapists who render direct, actual and frequent medical services in the
form of consultation, examination, treatment and ancillary care, were said to be

subject to high-risk exposure; and (b) psychologists, pharmacists, optometrists,

clerks, data encoders, utility workers, ambulance drivers, and administrative and
technical

support

personnel,

to

low-risk

exposure. [4] Accordingly,

employees

exposed to high-risk hazards belonging to Salary Grade 19 and below, and those
belonging to Salary Grade 20 and above, were respectively given 27% and 7% of
their basic monthly salaries as hazard allowances; whereas employees open to lowrisk hazards belonging to Salary Grade 20 and above, and Salary Grade 19 and
below, were respectively given 5% and 25% of their basic monthly salaries as
hazard

allowances.[5] This

classification,

however,

was

abolished

when

the

Department of Health (DOH)after reviewing the corresponding job descriptions of

the members of the SCMDS personnel and the nature of their exposure to hazards
directed that they should all be entitled to a uniform hazard pay rate without regard
for the nature of the risks and hazards to which they are exposed. [6] The dual 25%
and 5% hazard allowance rates for all the members of the SCMDS personnel were
retained.

In their Letter [7] dated 21 January 2005 addressed to then Chief Justice Hilario
Davide, Jr., eleven of the SCMDS personnel concernedwho claim to be doctors with
salary grades higher than 19[8] and who allegedly render front-line and hands-on
services but receive less hazard allowance allocations than do those personnel who
do not directly deliver patient carelamented that the classification and the rates of
hazard allowance implemented by the subject Circular seemed to favor only those
belonging to Salary Grade 19 and below, contrary to the very purpose of the grant
which is to compensate health workers according to the degree of exposure to
hazards regardless of rank or status. They believe that the grant must be based

not on the salary grade but rather on the degree of hazard to which they are
actually exposed; thus, they asked for a reexamination of the subject Circular. [9]

The OCAT posits that the subject Circular may not be amended in accordance
with A.O. No. 2006-0011 and in the manner the personnel concerned desire
because, first, the mechanics of payment established by the administrative order is

However, even before the request could be acted upon by the Court,

of doubtful validity; and second, the said administrative order has not been duly

Secretary Francisco Duque III issued Administrative Order (A.O.) No. 2006-

published and hence not binding on the Court. [19] It also points out that the

0011[10] on 16 May 2006. The administrative order prescribes amended guidelines in

administrative order does not conform to Section 21 of R.A. No. 7305 in which the

the payment of hazard pay applicable to all public health workers regardless of the

rates of hazard pay are clearly based on salary grade. [20]

nature of their appointment. It essentially establishes a 25% hazard pay rate for
health workers with salary grade 19 and below but fixed the hazard allowance of

The FMBO advances a contrary position. It maintains that the subject

those occupying positions belonging to Salary Grade 20 and above to P4,989.75

Circular may be amended according to the terms of A.O. No. 2006-0011 inasmuch as

without further increases.

[11]

In view of this development, some of the SCMDS

the latter could put to rest the objection of the personnel concerned to the allegedly

personnel concerned,[12] in another Letter dated 19 December 2007 and addressed

unreasonable and unfair allocation of hazard pay. Additionally, it recommends that

to Chief Justice Reynato S. Puno, suggesting that the subject Circular be amended to

once the amendment is made, the hazard allowances due the SCMDS personnel be

conform to A.O. No. 2006-0011, and that they accordingly be paid hazard pay

charged against the savings from the regular appropriations of the Court. [21]

differentials accruing by virtue thereof.[13]

SCMDS Senior Chief Staff Officer Dr. Prudencio Banzon, Jr. indorsed the letter to

This Court has to deny the request because the subject Circular cannot be

Deputy Clerk of Court and Chief Administrative Officer Atty. Eden Candelaria (Atty.

amended according to the mechanism of hazard pay allocation under AO No. 2006-

Candelaria).[14] On 15

0011 without denigrating established administrative law principles.

Memorandum

[15]

January

2008,

Atty.

Candelaria

issued

finding merit in the request to amend the subject Circular because

A.O. No. 2006-0011 suggests more equitable guidelines on the allocation of hazard
allowances

among

health

workers

in

the

government.

[16]

Accordingly,

she

recommended that: (a) the classification as to whether employees are exposed to

Essentially, hazard pay is the premium granted by law to health workers

who, by the nature of their work, are constantly exposed to various risks to health
and safety.[22] Section 21 of R.A. No. 7305 provides:

high or low-risk hazard, as found in the Circular, be abolished and instead replaced
by the fixed rates provided in A.O. No. 2006-0011; and that (b) the payment of the
adjusted hazard allowance be charged against the regular savings of the Court. [17]

In

its

Resolution[18] dated 22

January

2008,

the

Court

referred

Atty.

Candelarias memorandum to the Fiscal Management and Budget Office (FMBO) and
to the Office of the Chief Attorney (OCAT) for comment.

SEC. 21. Hazard Allowance.Public health workers in

hospitals, sanitaria, rural health units, main health centers, health
infirmaries, barangay health stations, clinics and other healthrelated establishments located in difficult areas, strife-torn or
embattled areas, distressed or isolated stations, prison camps,
mental hospitals, radiation-exposed clinics, laboratories or
disease-infested areas or in areas declared under state of calamity
or emergency for the duration thereof which expose them to great
danger,
contagion,
radiation,
volcanic
activity/eruption,
occupational risks or perils to life as determined by the Secretary
of Health or the Head of the unit with the approval of the Secretary

of Health, shall be compensated hazard allowances equivalent to

at least twenty-five percent (25%) of the monthly basic salary of
health workers receiving salary grade 19 and below, and five
percent (5%) for health workers with salary grade 20 and above.

accruing to public health workers with Salary Grade 20 and above, deviating from
the 5% monthly salary benchmark prescribed by both the law and its implementing
rules.

The implementing rules of R.A. No. 7305 likewise stipulate the same rates of hazard
pay. Rule 7.1.5 thereof states:

The DOH possesses no such power.

7.1.5 Rates of Hazard Pay

a. Public health workers shall be compensated hazard allowances
equivalent to at least twenty-five percent (25%) of the monthly
basic salary of health workers receiving salary grade 19 and
below, and five percent (5%) for health workers with salary grade
20 and above. This may be granted on a monthly, quarterly or
annual basis. x x x

Fundamental is the precept in administrative law that the rule-making

power delegated to an administrative agency is limited and defined by the statute
conferring the power. For this reason, valid objections to the exercise of this power
lie where it conflicts with the authority granted by the legislature. [24]

A mere fleeting glance at A.O. No. 2006-0011 readily reveals that the DOH,

In a language too plain to be mistaken, R.A. No. 7305 and its implementing
rules mandate that the allocation and distribution of hazard allowances to public
health workers within each of the two salary grade brackets at the respective rates
of 25% and 5% be based on the salary grade to which the covered employees
belong. These same rates have in fact been incorporated into the subject Circular to
apply to all SCMDS personnel. The computation of the hazard allowance due should,
in turn, be based on the corresponding basic salary attached to the position of the
employee concerned.

in issuing the said administrative order, has exceeded its limited power of
implementing the provisions of R.A. No. 7305. It undoubtedly sought to modify the
rates of hazard pay and the mechanism for its allocation under both the law and the
implementing rules by prescribing a uniform ratelet alone a fixed and exact
amountof hazard allowance for government health workers occupying positions
with salary grade 20 and above. The effect of this measure can hardly be
downplayed especially in view of the unmistakable import of the law to establish a
scalar allocation of hazard allowances among public health workers within each of

To be sure, the law and the implementing rules obviously prescribe the

the two salary grade brackets.

minimum rates of hazard pay due all health workers in the government, as in fact
Section 19[25] of R.A. No. 7305 recognizes, for its own purposes, the

this is evident in the self-explanatory phrase at least used in both the law and the
rules. No compelling argument may thus be offered against the competence of the
DOH to prescribe, by rules or orders, higher rates of hazard allowance, provided that
the same fall within the limits of the law. As the lead agency in the implementation
of the provisions of R.A. No. 7305, it has in fact been invested with such power by
Section 35.[23] Be that as it may, the question that arises is whether that power is
broad enough to vest the DOH with authority to fix an exact amount of hazard pay

applicability of the provisions of R.A. No. 6758 [26] (The Salary Standardization Act of
1989) in the determination of the salary scale of all covered public health
workers. Telling is this reference to the scalar schedule of salaries when viewed in
light of the fact that factoring in the salaries of individual employees and the
applicable uniform rate of hazard allowance would yield different results which,
when charted against each other, would also bear the scalar schedule intended by
the law.

[29]

The power may not be validly extended by implication beyond what may be

necessary for its just and reasonable execution. [30] In other words, the function of
promulgating rules and regulations may be legitimately exercised only for the
purpose of carrying out the provisions of a law, inasmuch as the power is confined to
The object, in other words, of both the law and its implementing rules in

implementing the law or putting it into effect. [31] Therefore, such rules and

providing a uniform rate for each of the two groups of public health workers is to

regulations must not be inconsistent with the provisions of existing laws, particularly

establish a scalar allocation of the cash equivalents of the hazard allowance within

the statute being administered and implemented by the agency concerned, [32] that is

each of the two groups. A scalar schedule of hazard pay allocation within the Salary

to say, the statute to which the issuance relates. Constitutional and statutory

Grade 20 and higher bracket can indeed be achieved only by multiplying the basic

provisions control with respect to what rules and regulations may be promulgated by

monthly salary of the covered employees by a constant factor that is 25% as the

such a body, as well as with respect to what fields are subject to regulation by it. [33]

fixed legal rate. Even without an express reference to the scalar schedule of salaries
under R.A. No. 6758, it can nevertheless be inferred that R.A. No. 7305, by

It must be stressed that the DOH issued the rules and regulations

mandating a fixed rate of hazard allowance for each of the two groups of health

implementing the provisions of R.A. 7305 pursuant to the authority expressly

workers, intends to achieve the same effect.

delegated by Congress. Hence, the DOH, as the delegate administrative agency,

cannot contravene the law from which its rule-making authority has emanated. As

Hence, it can only be surmised that the issuance of AO No. 2006-0011 is an

attempt to amend the rates of hazard allowance and the mechanism for its

the clich goes, the spring cannot rise higher than its source. [34] In this regard,
Fisher observes:

allocation as provided for in R.A. No. 7305 and the implementing rules because it
has the effect of obliterating the intended discrepancy in the cash equivalents of the
hazard allowance for employees falling within the bracket of Salary Grade 20 and
above. Without unnecessarily belaboring this point, the Court finds that the
administrative order violates the established principle that administrative issuances
cannot amend an act of Congress.

[27]

It is void on its face, but only insofar as

it prescribes a predetermined exact amount in cash of the hazard allowance for

public health workers with Salary Grade 20 and above.
Indeed, when an administrative agency enters into the exercise of the
specific power of implementing a statute, it is bound by what is provided for in the
same legislative enactment[28] inasmuch as its rule-making power is a delegated
legislative power which may not be used either to abridge the authority given by the
Congress or the Constitution or to enlarge the power beyond the scope intended.

x x x The often conflicting and ambiguous passages

within a law must be interpreted by executive officials to
construct the purpose and intent of Congress. As important
as intent is the extent to which a law is carried
out. President Taft once remarked, Let anyone make the laws
of the country, if I can construe them.
To carry out the laws, administrators issue rules and
regulations of their own. The courts long ago appreciated this
need. Rules and regulations must be received as the acts of
the executive, and as such, be binding upon all within the
sphere of his legal and constitutional authority. Current law
authorizes the head of an executive department or military
department to prescribe regulations for the government of his
department, the conduct of its employees, the distribution and
performance of its business, and the custody, use, and
preservation of its records, papers, and property.

These duties, primarily of a housekeeping nature,

relate only distantly to the citizenry. Many regulations,
however, bear directly on the public. It is here that
administrative legislation must be restricted in its scope and
application. Regulations are not supposed to be a substitute
for the general policymaking that Congress enacts in the form
of a public law. Although administrative regulations are
entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to
make laws. Agency rulemaking must rest on authority
granted directly or indirectly by Congress. [35] (Emphasis
supplied)

interpreting and applying the law. In other words, the Court cannot infuse vitality,
let alone a semblance of validity, to an issuance which on its face is inconsistent
with the law and therefore void, by adopting its terms and in effect implementing
the samelest we otherwise validate an undue exercise by the DOH of its delegated
and limited power of implementation. Suffice it to say that questions relative to the
seeming unfairness and inequitableness of the law are matters that lie well within
the legitimate powers of Congress and are well beyond the competence of the Court
to address.

Moreover, although an administrative agency is authorized to exercise its

discretion in the exercise of its power of subordinate legislation, nevertheless, no
similar authority exists to validate an arbitrary or capricious enactment of rules and
regulations.[36] Rules which have the effect of extending or conflicting with the
authority-granting statute do not represent a valid exercise of rule-making power but
constitute an attempt by the agency to legislate.[37] In such a situation, it is said that
the issuance becomes void not only for being ultra vires but also for being

In light of the foregoing, there appears to be no more necessity to discuss

the issue of the non-publication of A.O. No. 2006-0011.

unreasonable.[38] The law therefore prevails over the administrative issuance.[39]

WHEREFORE, the request of the Supreme Court Medical and Dental
Services Division to amend Administrative Circular (A.C.) No. 57-2004 according to
The Court takes notice of the fact that the enactment of R.A. No. 7305 has

the provisions of Department of Health Administrative Order No. 2006-0011 is

touched off, within the public health service sector, a surge of negative sentiments

DENIED. The Court DIRECTS that the payment of hazard allowance in favor of the

regarding the alleged inequitableness and unfairness of the lawparticularly the

personnel concerned be made in accordance with A.C. No. 57-2004.

provisions thereof relating to the allocation of hazard allowances. Certainly, the

DOH can be reasonably expected to respond to the well-meaning clamor of the
public health workers; but while indeed the DOH is entitled to a certain amount of
hegemony over the statutes which it is tasked to administer, it nevertheless may not
go far beyond the letter of the law even if it does perceive that it is acting in the
furtherance of the spirit of the law.[40]

A final note. Just as the power of the DOH to issue rules and regulations is
confined to the clear letter of the law, the Courts hands are likewise tied to

SO ORDERED.