Vanessa M. Velasco JD 1C Vera vs. Avelino G.R. No.

L-543 105
Arnault vs. Balagtas G.R. No. L-6749 113
Constitutional Law 1 PBA vs. COMELEC G.R. No. 72915 117
Cases/Statutes/Executive Orders/Proclamations/Presidential Avelino vs. Cuenco G.R. No. L-2821 118
Decrees/Treaties Barcelon vs. Baker G.R. No. 2808 120
Montenegro vs. Castaneda G.R. No. L-4221 129
Table of Contents Page Lansang vs. Garcia G.R. No. L-33964 131
Incorporation Clause Garcia-Padilla vs. Enrile G.R. No. L-61388 146
Kuroda vs. Jalandoni G.R. No. L-2662 1
Inchong vs. Hernandez G.R. No. L-7995 3 G.R. No. L-2662 March 26, 1949
Defense of the State
People vs. Lagman G.R. No. L-45892 12 SHIGENORI KURODA, petitioner,
People vs. Zosa 38 O.G. 1676 12 vs.
Social Justice Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA,
Calalang vs. Williams G.R. No. 47800 13 Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.
Separation of Church and State
Aglipay vs. Ruiz G.R. No. L-45459 15 MORAN, C.J.:
Everson vs. Board of Education 330 U.S. 1 17
Engel vs. Vitale 370 u.s. 421 18 Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and
Tudor vs. Board of Education 27 Commanding General of the Japanese Imperial Forces in The Philippines during a period
Zorach vs. Clauson 343 US 306 34 covering 19433 and 19444 who is now charged before a military Commission convened by
Board of Education vs. Allen 392 US 236 34 the Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded
People vs. Fernandez G.R. No.L-1128 and failed "to discharge his duties as such command, permitting them to commit brutal
Garces vs. Estenzo G.R. No. L-53487 35 atrocities and other high crimes against noncombatant civilians and prisoners of the
Gonzales vs. Archbishop of Manila 37 Imperial Japanese Forces in violation of the laws and customs of war" — comes before this
Government of Laws and Not of Men Court seeking to establish the illegality of Executive Order No. 68 of the President of the
Villavicencio vs. Lukban G.R. No. L-14639 40 Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert Port from
Education participating in the prosecution of petitioner's case before the Military Commission and to
Villar vs. Technological Instutute of the Phil 46 permanently prohibit respondents from proceeding with the case of petitioners.
G.R. No. L-69198
Tagonan vs. Cruz Pano G.R. No. L-45157 47 In support of his case petitioner tenders the following principal arguments.
Decs vs. San Diego G.R. No. 89572 51
Tablarin vs. Gutierrez G.R. No. 78164 53 First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the
Justicable and Political Questions provision of our constitutional law but also our local laws to say nothing of the fact (that)
Casibang vs. Aquino G.R. No. L-38025 56 the Philippines is not a signatory nor an adherent to the Hague Convention on Rules and
Tanada vs. Cuenco G.R. No. L-10520 61 Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not
Sanidad vs. Commission on Elections G.R. 72 based on law, national and international." Hence petitioner argues — "That in view off the
No. L-44640 fact that this commission has been empanelled by virtue of an unconstitutional law an
Abueva vs. Wood G.R. No. L-21327 78 illegal order this commission is without jurisdiction to try herein petitioner."
Severino vs. Governor-General G.R. No. L- 85
6250 Second. — That the participation in the prosecution of the case against petitioner before
Aytona vs. Castillo G.R. No. L-19313 96 the Commission in behalf of the United State of America of attorneys Melville Hussey and
De la Llana vs. COMELEC G.R. No. L-47245 98 Robert Port who are not attorneys authorized by the Supreme Court to practice law in the
Alejandrino vs. Quezon G.R. No. 22041 98 Philippines is a diminution of our personality as an independent state and their
Osmena vs. Pendatun G.R. No. L-17144 102

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appointment as prosecutor are a violation of our Constitution for the reason that they are
not qualified to practice law in the Philippines.
Third. — That Attorneys Hussey and Port have no personality as prosecution the United
State not being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and
regulation governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that —
The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all those person military or
civilian who have been guilty of planning preparing or waging a war of aggression and of
the commission of crimes and offenses consequential and incidental thereto in violation of
the laws and customs of war, of humanity and civilization are held accountable therefor.
Consequently in the promulgation and enforcement of Execution Order No. 68 the
President of the Philippines has acted in conformity with the generally accepted and
policies of international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said —
War is not ended simply because hostilities have ceased. After cessation of armed
hostilities incident of war may remain pending which should be disposed of as in
time of war. An importance incident to a conduct of war is the adoption of
measure by the military command not only to repel and defeat the enemies but to
seize and subject to disciplinary measure those enemies who in their attempt to
thwart or impede our military effort have violated the law of war. (Ex parte Quirin
317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military commission for
the trial and punishment of war criminals is an aspect of waging war. And in the
language of a writer a military commission has jurisdiction so long as a technical
state of war continues. This includes the period of an armistice or military
occupation up to the effective of a treaty of peace and may extend beyond by
treaty agreement. (Cowles Trial of War Criminals by Military Tribunals, America
Bar Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate
this unfinished aspect of war namely the trial and punishment of war criminal through the
issuance and enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner
for acts committed in violation of the Hague Convention and the Geneva Convention
because the Philippines is not a signatory to the first and signed the second only in 1947.
It cannot be denied that the rules and regulation of the Hague and Geneva conventions
form, part of and are wholly based on the generally accepted principals of international
law. In facts these rules and principles were accepted by the two belligerent nation the
United State and Japan who were signatories to the two Convention, Such rule and
principles therefore form part of the law of our nation even if the Philippines was not a
signatory to the conventions embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the recognition of rule and
principle of international law as continued inn treaties to which our government may have
been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the
Philippines was under the sovereignty of United States and thus we were equally bound
together with the United States and with Japan to the right and obligation contained in the
treaties between the belligerent countries. These rights and obligation were not erased by
our assumption of full sovereignty. If at all our emergency as a free state entitles us to
enforce the right on our own of trying and punishing those who committed crimes against
crimes against our people. In this connection it is well to remember what we have said in
the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not
affect the prosecution of those charged with the crime of treason committed
during then Commonwealth because it is an offense against the same sovereign
people. . . .
By the same token war crimes committed against our people and our government while
we were a Commonwealth are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S.
Hussey and Robert Port in the prosecution of his case on the ground that said attorney's
are not qualified to practice law in Philippines in accordance with our Rules of court and
the appointment of said attorneys as prosecutors is violative of our national sovereignty.
In the first place respondent Military Commission is a special military tribunal governed by
a special law and not by the Rules of court which govern ordinary civil court. It has already
been shown that Executive Order No. 68 which provides for the organization of such
military commission is a valid and constitutional law. There is nothing in said executive
order which requires that counsel appearing before said commission must be attorneys
qualified to practice law in the Philippines in accordance with the Rules of Court. In facts it
is common in military tribunals that counsel for the parties are usually military personnel
who are neither attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the
vindication of crimes against her government and her people to a tribunal of our nation
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should be allowed representation in the trial of those very crimes. If there has been any
relinquishment of sovereignty it has not been by our government but by the United State
Government which has yielded to us the trial and punishment of her enemies. The least
that we could do in the spirit of comity is to allow them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges
the personality of attorneys Hussey and Port as prosecutors. It is of common knowledge
that the United State and its people have been equally if not more greatly aggrieved by
the crimes with which petitioner stands charged before the Military Commission. It can be
considered a privilege for our Republic that a leader nation should submit the vindication
of the honor of its citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction
over the crimes charged which fall under the provisions of Executive Order No. 68, and
having said petitioner in its custody, this Court will not interfere with the due process of
such Military commission.
For all the foregoing the petition is denied with costs de oficio.
G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien residents,
corporations and partnerships adversely affected. by Republic Act No.
1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City
Treasurer of Manila,respondents.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity and constitutionality
of a legislative enactment, fundamental and far-reaching in significance. The enactment
poses questions of due process, police power and equal protection of the laws. It also
poses an important issue of fact, that is whether the conditions which the disputed law
purports to remedy really or actually exist. Admittedly springing from a deep, militant, and
positive nationalistic impulse, the law purports to protect citizen and country from the
alien retailer. Through it, and within the field of economy it regulates, Congress attempts
to translate national aspirations for economic independence and national security, rooted
in the drive and urge for national survival and welfare, into a concrete and tangible
measures designed to free the national retailer from the competing dominance of the
alien, so that the country and the nation may be free from a supposed economic
dependence and bondage. Do the facts and circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it
nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition
against persons, not citizens of the Philippines, and against associations, partnerships, or
corporations the capital of which are not wholly owned by citizens of the Philippines, from
engaging directly or indirectly in the retail trade; (2) an exception from the above
prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are
allowed to continue to engaged therein, unless their licenses are forfeited in accordance
with the law, until their death or voluntary retirement in case of natural persons, and for
ten years after the approval of the Act or until the expiration of term in case of juridical
persons; (3) an exception therefrom in favor of citizens and juridical entities of the United
States; (4) a provision for the forfeiture of licenses (to engage in the retail business) for
violation of the laws on nationalization, control weights and measures and labor and other
laws relating to trade, commerce and industry; (5) a prohibition against the establishment
or opening by aliens actually engaged in the retail business of additional stores or
branches of retail business, (6) a provision requiring aliens actually engaged in the retail
business to present for registration with the proper authorities a verified statement
concerning their businesses, giving, among other matters, the nature of the business,
their assets and liabilities and their offices and principal offices of judicial entities; and (7)
a provision allowing the heirs of aliens now engaged in the retail business who die, to
continue such business for a period of six months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this
action to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the
Secretary of Finance and all other persons acting under him, particularly city and
municipal treasurers, from enforcing its provisions. Petitioner attacks the constitutionality
of the Act, contending that: (1) it denies to alien residents the equal protection of the laws
and deprives of their liberty and property without due process of law ; (2) the subject of
the Act is not expressed or comprehended in the title thereof; (3) the Act violates
international and treaty obligations of the Republic of the Philippines; (4) the provisions of
the Act against the transmission by aliens of their retail business thru hereditary
succession, and those requiring 100% Filipino capitalization for a corporation or entity to
entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII
and Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the
Act was passed in the valid exercise of the police power of the State, which exercise is
authorized in the Constitution in the interest of national economic survival; (2) the Act has
only one subject embraced in the title; (3) no treaty or international obligations are
infringed; (4) as regards hereditary succession, only the form is affected but the value of
the property is not impaired, and the institution of inheritance is only of statutory origin.
IV. Preliminary consideration of legal principles involved
a. The police power. —
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There is no question that the Act was approved in the exercise of the police power, but
petitioner claims that its exercise in this instance is attended by a violation of the
constitutional requirements of due process and equal protection of the laws. But before
proceeding to the consideration and resolution of the ultimate issue involved, it would be
well to bear in mind certain basic and fundamental, albeit preliminary, considerations in
the determination of the ever recurrent conflict between police power and the guarantees
of due process and equal protection of the laws. What is the scope of police power, and
how are the due process and equal protection clauses related to it? What is the province
and power of the legislature, and what is the function and duty of the courts? These
consideration must be clearly and correctly understood that their application to the facts of
the case may be brought forth with clarity and the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that it has become almost
impossible to limit its sweep. As it derives its existence from the very existence of the
State itself, it does not need to be expressed or defined in its scope; it is said to be co-
extensive with self-protection and survival, and as such it is the most positive and active
of all governmental processes, the most essential, insistent and illimitable. Especially is it
so under a modern democratic framework where the demands of society and of nations
have multiplied to almost unimaginable proportions; the field and scope of police power
has become almost boundless, just as the fields of public interest and public welfare have
become almost all-embracing and have transcended human foresight. Otherwise stated,
as we cannot foresee the needs and demands of public interest and welfare in this
constantly changing and progressive world, so we cannot delimit beforehand the extent or
scope of police power by which and through which the State seeks to attain or achieve
interest or welfare. So it is that Constitutions do not define the scope or extent of the
police power of the State; what they do is to set forth the limitations thereof. The most
important of these are the due process clause and the equal protection clause.
b. Limitations on police power. —
The basic limitations of due process and equal protection are found in the following
provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or property without due
process of law, nor any person be denied the equal protection of the laws. (Article
III, Phil. Constitution)
These constitutional guarantees which embody the essence of individual liberty and
freedom in democracies, are not limited to citizens alone but are admittedly universal in
their application, without regard to any differences of race, of color, or of nationality. (Yick
Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause. —
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality. It is not
intended to prohibit legislation, which is limited either in the object to which it is directed
or by territory within which is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under like
circumstances and conditions both as to privileges conferred and liabilities enforced. The
equal protection clause is not infringed by legislation which applies only to those persons
falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exists for making a distinction between those who fall within such
class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause. —
The due process clause has to do with the reasonableness of legislation enacted in
pursuance of the police power. Is there public interest, a public purpose; is public welfare
involved? Is the Act reasonably necessary for the accomplishment of the legislature's
purpose; is it not unreasonable, arbitrary or oppressive? Is there sufficient foundation or
reason in connection with the matter involved; or has there not been a capricious use of
the legislative power? Can the aims conceived be achieved by the means used, or is it not
merely an unjustified interference with private interest? These are the questions that we
ask when the due process test is applied.
The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related, the power and the
guarantees are supposed to coexist. The balancing is the essence or, shall it be said, the
indispensable means for the attainment of legitimate aspirations of any democratic
society. There can be no absolute power, whoever exercise it, for that would be tyranny.
Yet there can neither be absolute liberty, for that would mean license and anarchy. So the
State can deprive persons of life, liberty and property, provided there is due process of
law; and persons may be classified into classes and groups, provided everyone is given
the equal protection of the law. The test or standard, as always, is reason. The police
power legislation must be firmly grounded on public interest and welfare, and a reasonable
relation must exist between purposes and means. And if distinction and classification has
been made, there must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper place and role of the courts?
It must not be overlooked, in the first place, that the legislature, which is the
constitutional repository of police power and exercises the prerogative of determining the
policy of the State, is by force of circumstances primarily the judge of necessity, adequacy
or reasonableness and wisdom, of any law promulgated in the exercise of the police
power, or of the measures adopted to implement the public policy or to achieve public
interest. On the other hand, courts, although zealous guardians of individual liberty and
right, have nevertheless evinced a reluctance to interfere with the exercise of the
legislative prerogative. They have done so early where there has been a clear, patent or
palpable arbitrary and unreasonable abuse of the legislative prerogative. Moreover, courts
are not supposed to override legitimate policy, and courts never inquire into the wisdom of
the law.
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 V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve directly into the issue
involved. If the disputed legislation were merely a regulation, as its title indicates, there
would be no question that it falls within the legitimate scope of legislative power. But it
goes further and prohibits a group of residents, the aliens, from engaging therein. The
problem becomes more complex because its subject is a common, trade or occupation, as
old as society itself, which from the immemorial has always been open to residents,
irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation. —
In a primitive economy where families produce all that they consume and consume all that
they produce, the dealer, of course, is unknown. But as group life develops and families
begin to live in communities producing more than what they consume and needing an
infinite number of things they do not produce, the dealer comes into existence. As villages
develop into big communities and specialization in production begins, the dealer's
importance is enhanced. Under modern conditions and standards of living, in which man's
needs have multiplied and diversified to unlimited extents and proportions, the retailer
comes as essential as the producer, because thru him the infinite variety of articles, goods
and needed for daily life are placed within the easy reach of consumers. Retail dealers
perform the functions of capillaries in the human body, thru which all the needed food and
supplies are ministered to members of the communities comprising the nation.
There cannot be any question about the importance of the retailer in the life of the
community. He ministers to the resident's daily needs, food in all its increasing forms, and
the various little gadgets and things needed for home and daily life. He provides his
customers around his store with the rice or corn, the fish, the salt, the vinegar, the spices
needed for the daily cooking. He has cloths to sell, even the needle and the thread to sew
them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler, the
owner of a small sari-sari store, to the operator of a department store or, a supermarket is
so much a part of day-to-day existence.
b. The alien retailer's trait. —
The alien retailer must have started plying his trades in this country in the bigger centers
of population (Time there was when he was unknown in provincial towns and villages).
Slowly but gradually be invaded towns and villages; now he predominates in the cities and
big centers of population. He even pioneers, in far away nooks where the beginnings of
community life appear, ministering to the daily needs of the residents and purchasing their
agricultural produce for sale in the towns. It is an undeniable fact that in many
communities the alien has replaced the native retailer. He has shown in this trade,
industry without limit, and the patience and forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of
ill-bred and insolent neighbors and customers are made in his face, but he heeds them
not, and he forgets and forgives. The community takes note of him, as he appears to be
harmless and extremely useful.
c. Alleged alien control and dominance. —
There is a general feeling on the part of the public, which appears to be true to fact, about
the controlling and dominant position that the alien retailer holds in the nation's economy.
Food and other essentials, clothing, almost all articles of daily life reach the residents
mostly through him. In big cities and centers of population he has acquired not only
predominance, but apparent control over distribution of almost all kinds of goods, such as
lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other goods
and articles. And were it not for some national corporations like the Naric, the Namarco,
the Facomas and the Acefa, his control over principal foods and products would easily
become full and complete.
Petitioner denies that there is alien predominance and control in the retail trade. In one
breath it is said that the fear is unfounded and the threat is imagined; in another, it is
charged that the law is merely the result of radicalism and pure and unabashed
nationalism. Alienage, it is said, is not an element of control; also so many unmanageable
factors in the retail business make control virtually impossible. The first argument which
brings up an issue of fact merits serious consideration. The others are matters of opinion
within the exclusive competence of the legislature and beyond our prerogative to pass
upon and decide.
The best evidence are the statistics on the retail trade, which put down the figures in black
and white. Between the constitutional convention year (1935), when the fear of alien
domination and control of the retail trade already filled the minds of our leaders with fears
and misgivings, and the year of the enactment of the nationalization of the retail trade act
(1954), official statistics unmistakably point out to the ever-increasing dominance and
control by the alien of the retail trade, as witness the following tables:
(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships, while the figures on
Filipino establishments already include mere market vendors, whose capital is necessarily
small..
The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos
have the edge in the number of retailers, but aliens more than make up for the numerical
gap through their assests and gross sales which average between six and seven times
those of the very many Filipino retailers. Numbers in retailers, here, do not imply
superiority; the alien invests more capital, buys and sells six to seven times more, and
gains much more. The same official report, pointing out to the known predominance of
foreign elements in the retail trade, remarks that the Filipino retailers were largely
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engaged in minor retailer enterprises. As observed by respondents, the native investment
is thinly spread, and the Filipino retailer is practically helpless in matters of capital, credit,
price and supply.
d. Alien control and threat, subject of apprehension in Constitutional convention. —
It is this domination and control, which we believe has been sufficiently shown to exist,
that is the legislature's target in the enactment of the disputed nationalization would never
have been adopted. The framers of our Constitution also believed in the existence of this
alien dominance and control when they approved a resolution categorically declaring
among other things, that "it is the sense of the Convention that the public interest
requires the nationalization of the retail trade; . . . ." (II Aruego, The Framing of the
Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two
years ago; and the events since then have not been either pleasant or comforting. Dean
Sinco of the University of the Philippines College of Law, commenting on the patrimony
clause of the Preamble opines that the fathers of our Constitution were merely translating
the general preoccupation of Filipinos "of the dangers from alien interests that had already
brought under their control the commercial and other economic activities of the country"
(Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of
the constitutional convention for the economic life of the citizens, in connection with the
nationalistic provisions of the Constitution, he says:
But there has been a general feeling that alien dominance over the economic life
of the country is not desirable and that if such a situation should remain, political
independence alone is no guarantee to national stability and strength. Filipino
private capital is not big enough to wrest from alien hands the control of the
national economy. Moreover, it is but of recent formation and hence, largely
inexperienced, timid and hesitant. Under such conditions, the government as the
instrumentality of the national will, has to step in and assume the initiative, if not
the leadership, in the struggle for the economic freedom of the nation in
somewhat the same way that it did in the crusade for political freedom. Thus . . .
it (the Constitution) envisages an organized movement for the protection of the
nation not only against the possibilities of armed invasion but also against its
economic subjugation by alien interests in the economic field. (Phil. Political Law
by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from
alien control, and they express sentiments of economic independence. Witness thereto is
Resolution No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino
Businessmen, and a similar resolution, approved on March 20, 1954, of the Second
National Convention of Manufacturers and Producers. The man in the street also believes,
and fears, alien predominance and control; so our newspapers, which have editorially
pointed out not only to control but to alien stranglehold. We, therefore, find alien
domination and control to be a fact, a reality proved by official statistics, and felt by all the
sections and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade does not seem to lie in
the predominance alone; there is a prevailing feeling that such predominance may truly
endanger the national interest. With ample capital, unity of purpose and action and
thorough organization, alien retailers and merchants can act in such complete unison and
concert on such vital matters as the fixing of prices, the determination of the amount of
goods or articles to be made available in the market, and even the choice of the goods or
articles they would or would not patronize or distribute, that fears of dislocation of the
national economy and of the complete subservience of national economy and of the
consuming public are not entirely unfounded. Nationals, producers and consumers alike
can be placed completely at their mercy. This is easily illustrated. Suppose an article of
daily use is desired to be prescribed by the aliens, because the producer or importer does
not offer them sufficient profits, or because a new competing article offers bigger profits
for its introduction. All that aliens would do is to agree to refuse to sell the first article,
eliminating it from their stocks, offering the new one as a substitute. Hence, the producers
or importers of the prescribed article, or its consumers, find the article suddenly out of the
prescribed article, or its consumers, find the article suddenly out of circulation. Freedom of
trade is thus curtailed and free enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the pernicious influences of
alien domination. Grave abuses have characterized the exercise of the retail trade by
aliens. It is a fact within judicial notice, which courts of justice may not properly overlook
or ignore in the interests of truth and justice, that there exists a general feeling on the
part of the public that alien participation in the retail trade has been attended by a
pernicious and intolerable practices, the mention of a few of which would suffice for our
purposes; that at some time or other they have cornered the market of essential
commodities, like corn and rice, creating artificial scarcities to justify and enhance profits
to unreasonable proportions; that they have hoarded essential foods to the inconvenience
and prejudice of the consuming public, so much so that the Government has had to
establish the National Rice and Corn Corporation to save the public from their continuous
hoarding practices and tendencies; that they have violated price control laws, especially
on foods and essential commodities, such that the legislature had to enact a law (Sec. 9,
Republic Act No. 1168), authorizing their immediate and automatic deportation for price
control convictions; that they have secret combinations among themselves to control
prices, cheating the operation of the law of supply and demand; that they have connived
to boycott honest merchants and traders who would not cater or yield to their demands, in
unlawful restraint of freedom of trade and enterprise. They are believed by the public to
have evaded tax laws, smuggled goods and money into and out of the land, violated
import and export prohibitions, control laws and the like, in derision and contempt of
lawful authority. It is also believed that they have engaged in corrupting public officials
with fabulous bribes, indirectly causing the prevalence of graft and corruption in the
Government. As a matter of fact appeals to unscrupulous aliens have been made both by
the Government and by their own lawful diplomatic representatives, action which impliedly
admits a prevailing feeling about the existence of many of the above practices.
The circumstances above set forth create well founded fears that worse things may come
in the future. The present dominance of the alien retailer, especially in the big centers of
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population, therefore, becomes a potential source of danger on occasions of war or other
calamity. We do not have here in this country isolated groups of harmless aliens retailing
goods among nationals; what we have are well organized and powerful groups that
dominate the distribution of goods and commodities in the communities and big centers of
population. They owe no allegiance or loyalty to the State, and the State cannot rely upon
them in times of crisis or emergency. While the national holds his life, his person and his
property subject to the needs of his country, the alien may even become the potential
enemy of the State.
f. Law enacted in interest of national economic survival and security. —
We are fully satisfied upon a consideration of all the facts and circumstances that the
disputed law is not the product of racial hostility, prejudice or discrimination, but the
expression of the legitimate desire and determination of the people, thru their authorized
representatives, to free the nation from the economic situation that has unfortunately
been saddled upon it rightly or wrongly, to its disadvantage. The law is clearly in the
interest of the public, nay of the national security itself, and indisputably falls within the
scope of police power, thru which and by which the State insures its existence and security
and the supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next question that now poses
solution is, Does the law deny the equal protection of the laws? As pointed out above, the
mere fact of alienage is the root and cause of the distinction between the alien and the
national as a trader. The alien resident owes allegiance to the country of his birth or his
adopted country; his stay here is for personal convenience; he is attracted by the lure of
gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral,
but he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he
temporarily stays and makes his living, or of that spirit of regard, sympathy and
consideration for his Filipino customers as would prevent him from taking advantage of
their weakness and exploiting them. The faster he makes his pile, the earlier can the alien
go back to his beloved country and his beloved kin and countrymen. The experience of the
country is that the alien retailer has shown such utter disregard for his customers and the
people on whom he makes his profit, that it has been found necessary to adopt the
legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never really makes a
genuine contribution to national income and wealth. He undoubtedly contributes to general
distribution, but the gains and profits he makes are not invested in industries that would
help the country's economy and increase national wealth. The alien's interest in this
country being merely transient and temporary, it would indeed be ill-advised to continue
entrusting the very important function of retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as already pointed out
above, their secret manipulations of stocks of commodities and prices, their utter
disregard of the welfare of their customers and of the ultimate happiness of the people of
the nation of which they are mere guests, which practices, manipulations and disregard do
not attend the exercise of the trade by the nationals, show the existence of real and
actual, positive and fundamental differences between an alien and a national which fully
justify the legislative classification adopted in the retail trade measure. These differences
are certainly a valid reason for the State to prefer the national over the alien in the retail
trade. We would be doing violence to fact and reality were we to hold that no reason or
ground for a legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for distinction. —
The above objectionable characteristics of the exercise of the retail trade by the aliens,
which are actual and real, furnish sufficient grounds for legislative classification of retail
traders into nationals and aliens. Some may disagree with the wisdom of the legislature's
classification. To this we answer, that this is the prerogative of the law-making power.
Since the Court finds that the classification is actual, real and reasonable, and all persons
of one class are treated alike, and as it cannot be said that the classification is patently
unreasonable and unfounded, it is in duty bound to declare that the legislature acted
within its legitimate prerogative and it can not declare that the act transcends the limit of
equal protection established by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications
among persons is not curtailed or denied by the equal protection of the laws clause. The
legislative power admits of a wide scope of discretion, and a law can be violative of the
constitutional limitation only when the classification is without reasonable basis. In
addition to the authorities we have earlier cited, we can also refer to the case of Linsey vs.
Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the
application of equal protection clause to a law sought to be voided as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment does not take
from the state the power to classify in the adoption of police laws, but admits of
the exercise of the wide scope of discretion in that regard, and avoids what is done
only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A
classification having some reasonable basis does not offend against that clause
merely because it is not made with mathematical nicety, or because in practice it
results in some inequality. 3. When the classification in such a law is called in
question, if any state of facts reasonably can be conceived that would sustain it,
the existence of that state of facts at the time the law was enacted must be
assumed. 4. One who assails the classification in such a law must carry the burden
of showing that it does not rest upon any reasonable basis but is essentially
arbitrary."
c. Authorities recognizing citizenship as basis for classification. —
The question as to whether or not citizenship is a legal and valid ground for classification
has already been affirmatively decided in this jurisdiction as well as in various courts in the
United States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the
validity of Act No. 2761 of the Philippine Legislature was in issue, because of a condition
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therein limiting the ownership of vessels engaged in coastwise trade to corporations
formed by citizens of the Philippine Islands or the United States, thus denying the right to
aliens, it was held that the Philippine Legislature did not violate the equal protection clause
of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose
the encouragement of Philippine shipbuilding and the safety for these Islands from foreign
interlopers. We held that this was a valid exercise of the police power, and all
presumptions are in favor of its constitutionality. In substance, we held that the limitation
of domestic ownership of vessels engaged in coastwise trade to citizens of the Philippines
does not violate the equal protection of the law and due process or law clauses of the
Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring
opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining acts; as, for
example, acts licensing gaming houses, retailers of spirituous liquors, etc. The act,
in this instance, is distinctly of that character, and forms part of an extensive
system, the object of which is to encourage American shipping, and place them on
an equal footing with the shipping of other nations. Almost every commercial
nation reserves to its own subjects a monopoly of its coasting trade; and a
countervailing privilege in favor of American shipping is contemplated, in the
whole legislation of the United States on this subject. It is not to give the vessel an
American character, that the license is granted; that effect has been correctly
attributed to the act of her enrollment. But it is to confer on her American
privileges, as contra distinguished from foreign; and to preserve the Government
from fraud by foreigners; in surreptitiously intruding themselves into the American
commercial marine, as well as frauds upon the revenue in the trade coastwise,
that this whole system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a classification
otherwise justified simply because the limitation of the class falls along the lines of
nationality. That would be requiring a higher degree of protection for aliens as a
class than for similar classes than for similar classes of American citizens. Broadly
speaking, the difference in status between citizens and aliens constitutes a basis
for reasonable classification in the exercise of police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the
licensing of hawkers and peddlers, which provided that no one can obtain a license unless
he is, or has declared his intention, to become a citizen of the United States, was held
valid, for the following reason: It may seem wise to the legislature to limit the business of
those who are supposed to have regard for the welfare, good order and happiness of the
community, and the court cannot question this judgment and conclusion. In Bloomfield vs.
State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among them
aliens, from engaging in the traffic of liquors, was found not to be the result of race
hatred, or in hospitality, or a deliberate purpose to discriminate, but was based on the
belief that an alien cannot be sufficiently acquainted with "our institutions and our life as
to enable him to appreciate the relation of this particular business to our entire social
fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach, 274 U. S.
392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance
of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to
aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does
not follow that alien race and allegiance may not bear in some instances such a relation to
a legitimate object of legislation as to be made the basis of permitted classification, and
that it could not state that the legislation is clearly wrong; and that latitude must be
allowed for the legislative appraisement of local conditions and for the legislative choice of
methods for controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129
(Ohio, 1919) is a parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30
(Washington, 1922), the business of pawn brooking was considered as having tendencies
injuring public interest, and limiting it to citizens is within the scope of police power. A
similar statute denying aliens the right to engage in auctioneering was also sustained
in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van
Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens are judicially known to have
different interests, knowledge, attitude, psychology and loyalty, hence the prohibitions of
issuance of licenses to them for the business of pawnbroker, pool, billiard, card room,
dance hall, is not an infringement of constitutional rights. In Templar vs. Michigan State
Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of
aliens as barbers was held void, but the reason for the decision was the court's findings
that the exercise of the business by the aliens does not in any way affect the morals, the
health, or even the convenience of the community. In Takahashi vs. Fish and Game
Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of
commercial fishing licenses to person ineligible to citizenship was held void, because the
law conflicts with Federal power over immigration, and because there is no public interest
in the mere claim of ownership of the waters and the fish in them, so there was no
adequate justification for the discrimination. It further added that the law was the
outgrowth of antagonism toward the persons of Japanese ancestry. However, two Justices
dissented on the theory that fishing rights have been treated traditionally as natural
resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897), a
state law which imposed a tax on every employer of foreign-born unnaturalized male
persons over 21 years of age, was declared void because the court found that there was
no reason for the classification and the tax was an arbitrary deduction from the daily wage
of an employee.
d. Authorities contra explained. —
It is true that some decisions of the Federal court and of the State courts in the United
States hold that the distinction between aliens and citizens is not a valid ground for
classification. But in this decision the laws declared invalid were found to be either
arbitrary, unreasonable or capricious, or were the result or product of racial antagonism
and hostility, and there was no question of public interest involved or pursued. In Yu Cong
Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid
a Philippine law making unlawful the keeping of books of account in any language other
than English, Spanish or any other local dialect, but the main reasons for the decisions
are: (1) that if Chinese were driven out of business there would be no other system of
distribution, and (2) that the Chinese would fall prey to all kinds of fraud, because they
would be deprived of their right to be advised of their business and to direct its conduct.
The real reason for the decision, therefore, is the court's belief that no public benefit would
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be derived from the operations of the law and on the other hand it would deprive Chinese
of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed
220 (1885) an ordinance conferring powers on officials to withhold consent in the
operation of laundries both as to persons and place, was declared invalid, but the court
said that the power granted was arbitrary, that there was no reason for the discrimination
which attended the administration and implementation of the law, and that the motive
thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law
prohibiting aliens to engage as hawkers and peddlers was declared void, because the
discrimination bore no reasonable and just relation to the act in respect to which the
classification was proposed.
The case at bar is radically different, and the facts make them so. As we already have
said, aliens do not naturally possess the sympathetic consideration and regard for the
customers with whom they come in daily contact, nor the patriotic desire to help bolster
the nation's economy, except in so far as it enhances their profit, nor the loyalty and
allegiance which the national owes to the land. These limitations on the qualifications of
the aliens have been shown on many occasions and instances, especially in times of crisis
and emergency. We can do no better than borrow the language of Anton vs. Van Winkle,
297 F. 340, 342, to drive home the reality and significance of the distinction between the
alien and the national, thus:
. . . . It may be judicially known, however, that alien coming into this country are
without the intimate knowledge of our laws, customs, and usages that our own
people have. So it is likewise known that certain classes of aliens are of different
psychology from our fellow countrymen. Furthermore, it is natural and reasonable
to suppose that the foreign born, whose allegiance is first to their own country,
and whose ideals of governmental environment and control have been engendered
and formed under entirely different regimes and political systems, have not the
same inspiration for the public weal, nor are they as well disposed toward the
United States, as those who by citizenship, are a part of the government itself.
Further enlargement, is unnecessary. I have said enough so that obviously it
cannot be affirmed with absolute confidence that the Legislature was without
plausible reason for making the classification, and therefore appropriate
discriminations against aliens as it relates to the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by legislature decisive. —
We now come to due process as a limitation on the exercise of the police power. It has
been stated by the highest authority in the United States that:
. . . . And the guaranty of due process, as has often been held, demands only that
the law shall not be unreasonable, arbitrary or capricious, and that the means
selected shall have a real and substantial relation to the subject sought to be
attained. . . . .
So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may
reasonably be deemed to promote public welfare, and to enforce that policy by
legislation adapted to its purpose. The courts are without authority either to
declare such policy, or, when it is declared by the legislature, to override it. If the
laws passed are seen to have a reasonable relation to a proper legislative purpose,
and are neither arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court functus officio. .
. . (Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word "reasonable" in
considering the scope of the police power in a constitutional sense, for the test
used to determine the constitutionality of the means employed by the legislature is
to inquire whether the restriction it imposes on rights secured to individuals by the
Bill of Rights are unreasonable, and not whether it imposes any restrictions on
such rights. . . .
. . . . A statute to be within this power must also be reasonable in its operation
upon the persons whom it affects, must not be for the annoyance of a particular
class, and must not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-
1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
. . . . To justify the state in thus interposing its authority in behalf of the public, it
must appear, first, that the interests of the public generally, as distinguished from
those of a particular class, require such interference; and second, that the means
are reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:
In determining whether a given act of the Legislature, passed in the exercise of
the police power to regulate the operation of a business, is or is not constitutional,
one of the first questions to be considered by the court is whether the power as
exercised has a sufficient foundation in reason in connection with the matter
involved, or is an arbitrary, oppressive, and capricious use of that power, without
substantial relation to the health, safety, morals, comfort, and general welfare of
the public.
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary occupation, one of those
privileges long ago recognized as essential to the orderly pursuant of happiness by free
men; that it is a gainful and honest occupation and therefore beyond the power of the
legislature to prohibit and penalized. This arguments overlooks fact and reality and rests
on an incorrect assumption and premise, i.e., that in this country where the occupation is
engaged in by petitioner, it has been so engaged by him, by the alien in an honest
creditable and unimpeachable manner, without harm or injury to the citizens and without
ultimate danger to their economic peace, tranquility and welfare. But the Legislature has
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found, as we have also found and indicated, that the privilege has been so grossly abused
by the alien, thru the illegitimate use of pernicious designs and practices, that he now
enjoys a monopolistic control of the occupation and threatens a deadly stranglehold on the
nation's economy endangering the national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner, which overlooks and
ignores the facts and circumstances, but this, Is the exclusion in the future of aliens from
the retail trade unreasonable. Arbitrary capricious, taking into account the illegitimate and
pernicious form and manner in which the aliens have heretofore engaged therein? As thus
correctly stated the answer is clear. The law in question is deemed absolutely necessary to
bring about the desired legislative objective, i.e., to free national economy from alien
control and dominance. It is not necessarily unreasonable because it affects private rights
and privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the
appropriateness or adequacy under all circumstances of the means adopted to carry out
its purpose into effect (Id.) Judged by this test, disputed legislation, which is not merely
reasonable but actually necessary, must be considered not to have infringed the
constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory note that accompanied
the bill, which later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to prevent persons
who are not citizens of the Philippines from having a strangle hold upon our
economic life. If the persons who control this vital artery of our economic life are
the ones who owe no allegiance to this Republic, who have no profound devotion
to our free institutions, and who have no permanent stake in our people's welfare,
we are not really the masters of our destiny. All aspects of our life, even our
national security, will be at the mercy of other people.
In seeking to accomplish the foregoing purpose, we do not propose to deprive
persons who are not citizens of the Philippines of their means of livelihood. While
this bill seeks to take away from the hands of persons who are not citizens of the
Philippines a power that can be wielded to paralyze all aspects of our national life
and endanger our national security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then economic
independence is none the less legitimate. Freedom and liberty are not real and positive if
the people are subject to the economic control and domination of others, especially if not
of their own race or country. The removal and eradication of the shackles of foreign
economic control and domination, is one of the noblest motives that a national legislature
may pursue. It is impossible to conceive that legislation that seeks to bring it about can
infringe the constitutional limitation of due process. The attainment of a legitimate
aspiration of a people can never be beyond the limits of legislative authority.
c. Law expressly held by Constitutional Convention to be within the sphere of legislative
action. —
The framers of the Constitution could not have intended to impose the constitutional
restrictions of due process on the attainment of such a noble motive as freedom from
economic control and domination, thru the exercise of the police power. The fathers of the
Constitution must have given to the legislature full authority and power to enact legislation
that would promote the supreme happiness of the people, their freedom and liberty. On
the precise issue now before us, they expressly made their voice clear; they adopted a
resolution expressing their belief that the legislation in question is within the scope of the
legislative power. Thus they declared the their Resolution:
That it is the sense of the Convention that the public interest requires the
nationalization of retail trade; but it abstain from approving the amendment
introduced by the Delegate for Manila, Mr. Araneta, and others on this matter
because it is convinced that the National Assembly is authorized to promulgate a
law which limits to Filipino and American citizens the privilege to engage in the
retail trade. (11 Aruego, The Framing of the Philippine Constitution, quoted on
pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in various provisions of
the Constitution. Thus in the preamble, a principle objective is the conservation of the
patrimony of the nation and as corollary the provision limiting to citizens of the Philippines
the exploitation, development and utilization of its natural resources. And in Section 8 of
Article XIV, it is provided that "no franchise, certificate, or any other form of authorization
for the operation of the public utility shall be granted except to citizens of the Philippines."
The nationalization of the retail trade is only a continuance of the nationalistic protective
policy laid down as a primary objective of the Constitution. Can it be said that a law
imbued with the same purpose and spirit underlying many of the provisions of the
Constitution is unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the nationals as manifested in
the approval of the radical measures is, therefore, fully justified. It would have been
recreant to its duties towards the country and its people would it view the sorry plight of
the nationals with the complacency and refuse or neglect to adopt a remedy
commensurate with the demands of public interest and national survival. As the repository
of the sovereign power of legislation, the Legislature was in duty bound to face the
problem and meet, through adequate measures, the danger and threat that alien
domination of retail trade poses to national economy.
d. Provisions of law not unreasonable. —
A cursory study of the provisions of the law immediately reveals how tolerant, how
reasonable the Legislature has been. The law is made prospective and recognizes the right
and privilege of those already engaged in the occupation to continue therein during the
rest of their lives; and similar recognition of the right to continue is accorded associations
of aliens. The right or privilege is denied to those only upon conviction of certain offenses.
10 | P a g e
In the deliberations of the Court on this case, attention was called to the fact that the
privilege should not have been denied to children and heirs of aliens now engaged in the
retail trade. Such provision would defeat the law itself, its aims and purposes. Beside, the
exercise of legislative discretion is not subject to judicial review. It is well settled that the
Court will not inquire into the motives of the Legislature, nor pass upon general matters of
legislative judgment. The Legislature is primarily the judge of the necessity of an
enactment or of any of its provisions, and every presumption is in favor of its validity, and
though the Court may hold views inconsistent with the wisdom of the law, it may not
annul the legislation if not palpably in excess of the legislative power. Furthermore, the
test of the validity of a law attacked as a violation of due process, is not its
reasonableness, but its unreasonableness, and we find the provisions are not
unreasonable. These principles also answer various other arguments raised against the
law, some of which are: that the law does not promote general welfare; that thousands of
aliens would be thrown out of employment; that prices will increase because of the
elimination of competition; that there is no need for the legislation; that adequate
replacement is problematical; that there may be general breakdown; that there would be
repercussions from foreigners; etc. Many of these arguments are directed against the
supposed wisdom of the law which lies solely within the legislative prerogative; they do
not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law is the claim that the
title thereof is misleading or deceptive, as it conceals the real purpose of the bill which is
to nationalize the retail business and prohibit aliens from engaging therein. The
constitutional provision which is claimed to be violated in Section 21 (1) of Article VI,
which reads:
No bill which may be enacted in the law shall embrace more than one subject
which shall be expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title completely fails to
appraise the legislators or the public of the nature, scope and consequences of the law or
its operation (I Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory
consideration of the title and the provisions of the bill fails to show the presence of
duplicity. It is true that the term "regulate" does not and may not readily and at first
glance convey the idea of "nationalization" and "prohibition", which terms express the two
main purposes and objectives of the law. But "regulate" is a broader term than either
prohibition or nationalization. Both of these have always been included within the term
regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors, the
Legislature may prohibit the sale of intoxicating liquors. (Sweet vs. City of
Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of every act of
the Legislature shall be stated in the tale, the title to regulate the sale of
intoxicating liquors, etc." sufficiently expresses the subject of an actprohibiting the
sale of such liquors to minors and to persons in the habit of getting intoxicated;
such matters being properly included within the subject of regulating the sale.
(Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies some degree of
restraint and prohibition of acts usually done in connection with the thing to be
regulated. While word regulate does not ordinarily convey meaning of prohibit,
there is no absolute reason why it should not have such meaning when used in
delegating police power in connection with a thing the best or only efficacious
regulation of which involves suppression. (State vs. Morton, 162 So. 718, 182 La.
887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it has also been said
that the title need not be an index to the entire contents of the law (I Sutherland,
Statutory Construction, See. 4803, p. 345.) The above rule was followed the title of the
Act in question adopted the more general term "regulate" instead of "nationalize" or
"prohibit". Furthermore, the law also contains other rules for the regulation of the retail
trade which may not be included in the terms "nationalization" or "prohibition"; so were
the title changed from "regulate" to "nationalize" or "prohibit", there would have been
many provisions not falling within the scope of the title which would have made the Act
invalid. The use of the term "regulate", therefore, is in accord with the principle governing
the drafting of statutes, under which a simple or general term should be adopted in the
title, which would include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill should be embraced in
its title is to apprise the legislators of the purposes, the nature and scope of its provisions,
and prevent the enactment into law of matters which have received the notice, action and
study of the legislators or of the public. In the case at bar it cannot be claimed that the
legislators have been appraised of the nature of the law, especially the nationalization and
the prohibition provisions. The legislators took active interest in the discussion of the law,
and a great many of the persons affected by the prohibitions in the law conducted a
campaign against its approval. It cannot be claimed, therefore, that the reasons for
declaring the law invalid ever existed. The objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the supposed violation
thereby of the Charter of the United Nations and of the Declaration of the Human Rights
adopted by the United Nations General Assembly. We find no merit in the Nations Charter
imposes no strict or legal obligations regarding the rights and freedom of their subjects
(Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the Declaration of
Human Rights contains nothing more than a mere recommendation or a common standard
of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the
United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that
members of the United Nations Organizations, such as Norway and Denmark, prohibit
foreigners from engaging in retail trade, and in most nations of the world laws against
foreigners engaged in domestic trade are adopted.
The Treaty of Amity between the Republic of the Philippines and the Republic of China of
April 18, 1947 is also claimed to be violated by the law in question. All that the treaty
guarantees is equality of treatment to the Chinese nationals "upon the same terms as the
nationals of any other country." But the nationals of China are not discriminating against
because nationals of all other countries, except those of the United States, who are
granted special rights by the Constitution, are all prohibited from engaging in the retail
11 | P a g e
trade. But even supposing that the law infringes upon the said treaty, the treaty is always
subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258,
Fed. 257, 260), and the same may never curtail or restrict the scope of the police power
of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed law was enacted to
remedy a real actual threat and danger to national economy posed by alien dominance
and control of the retail business and free citizens and country from dominance and
control; that the enactment clearly falls within the scope of the police power of the State,
thru which and by which it protects its own personality and insures its security and future;
that the law does not violate the equal protection clause of the Constitution because
sufficient grounds exist for the distinction between alien and citizen in the exercise of the
occupation regulated, nor the due process of law clause, because the law is prospective in
operation and recognizes the privilege of aliens already engaged in the occupation and
reasonably protects their privilege; that the wisdom and efficacy of the law to carry out its
objectives appear to us to be plainly evident — as a matter of fact it seems not only
appropriate but actually necessary — and that in any case such matter falls within the
prerogative of the Legislature, with whose power and discretion the Judicial department of
the Government may not interfere; that the provisions of the law are clearly embraced in
the title, and this suffers from no duplicity and has not misled the legislators or the
segment of the population affected; and that it cannot be said to be void for supposed
conflict with treaty obligations because no treaty has actually been entered into on the
subject and the police power may not be curtailed or surrendered by any treaty or any
other conventional agreement.
Some members of the Court are of the opinion that the radical effects of the law could
have been made less harsh in its impact on the aliens. Thus it is stated that the more time
should have been given in the law for the liquidation of existing businesses when the time
comes for them to close. Our legal duty, however, is merely to determine if the law falls
within the scope of legislative authority and does not transcend the limitations of due
process and equal protection guaranteed in the Constitution. Remedies against the
harshness of the law should be addressed to the Legislature; they are beyond our power
and jurisdiction.
The petition is hereby denied, with costs against petitioner.
G.R. No. L-45892 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TRANQUILINO LAGMAN, defendant-appellant.
-----------------------------
G.R. No. L-45893 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PRIMITIVO DE SOSA, defendant-appellant.
AVANCEÑA, J.:
In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and
Primitivo de Sosa are charged with a violation of section 60 of Commonwealth Act No. 1,
known as the National Defense Law. It is alleged that these two appellants, being Filipinos
and having reached the age of twenty years in 1936, willfully and unlawfully refused to
register in the military service between the 1st and 7th of April of said year,
notwithstanding the fact that they had been required to do so. The evidence shows that
these two appellants were duly notified by the corresponding authorities to appear before
the Acceptance Board in order to register for military service in accordance with law, and
that the said appellants, in spite of these notices, had not registered up to the date of the
filing of the information.
The appellants do not deny these facts, but they allege in defense that they have not
registered in the military service because Primitivo de Sosa is fatherless and has a mother
and a brother eight years old to support, and Tranquilino Lagman also has a father to
support, has no military learnings, and does not wish to kill or be killed.
Each of these appellants was sentenced by the Court of First Instance to one month and
one day of imprisonment, with the costs.
In this instance, the validity of the National Defense Law, under which the accused were
sentenced, is impugned on the ground that it is unconstitutional. Section 2, Article II of
the Constitution of the Philippines provides as follows:
SEC. 2. The defense of the state is a prime duty of government, and in the
fulfillment of this duty all citizens may be required by law to render personal
military or civil service.
The National Defense Law, in so far as it establishes compulsory military service, does not
go against this constitutional provision but is, on the contrary, in faithful compliance
therewith. The duty of the Government to defend the State cannot be performed except
through an army. To leave the organization of an army to the will of the citizens would be
to make this duty of the Government excusable should there be no sufficient men who
volunteer to enlist therein.1ªvvphïl.nët
In the United States the courts have held in a series of decisions that the compulsory
military service adopted by reason of the civil war and the world war does not violate the
Constitution, because the power to establish it is derived from that granted to Congress to
declare war and to organize and maintain an army. This is so because the right of the
Government to require compulsory military service is a consequence of its duty to defend
the State and is reciprocal with its duty to defend the life, liberty, and property of the
citizen. In the case of Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385),
it was said that, without violating the Constitution, a person may be compelled by force, if
need be, against his will, against his pecuniary interests, and even against his religious or
political convictions, to take his place in the ranks of the army of his country, and risk the
chance of being shot down in its defense. In the case of United States vs. Olson (253 Fed.,
12 | P a g e
233), it was also said that this is not deprivation of property without due process of law,
because, in its just sense, there is no right of property to an office or employment.
The circumstance that these decisions refer to laws enacted by reason on the actual
existence of war does not make our case any different, inasmuch as, in the last analysis,
what justifies compulsory military service is the defense of the State, whether actual or
whether in preparation to make it more effective, in case of need. The circumstance that
the appellants have dependent families to support does not excuse them from their duty
to present themselves before the Acceptance Board because, if such circumstance exists,
they can ask for determent in complying with their duty and, at all events, they can obtain
the proper pecuniary allowance to attend to these family responsibilities (secs. 65 and 69
of Commonwealth Act No. 1).
The appealed judgment rendered in these two cases is affirmed, with the costs to the
appellants. So ordered.
[G.R. No. 47800. December 2, 1940.]
MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.
Maximo Calalang in his own behalf.
Solicitor General Ozaeta and Assistant Solicitor General Amparo for respondents
Williams, Fragante and Bayan
City Fiscal Mabanag for the other respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT No. 648;
DELEGATION OF LEGISLATIVE POWER; AUTHORITY OF DIRECTOR OF PUBLIC WORKS
AND SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS TO PROMULGATE RULES
AND REGULATIONS. — The provisions of section 1 of Commonwealth Act No. 648 do not
confer legislative power upon the Director of Public Works and the Secretary of Public
Works and Communications. The authority therein conferred upon them and under which
they promulgated the rules and regulations now complained of is not to determine what
public policy demands but merely to carry out the legislative policy laid down by the
National Assembly in said Act, to wit, "to promote safe transit upon, and avoid
obstructions on, roads and streets designated as national roads by acts of the National
Assembly or by executive orders of the President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the condition of the road or the traffic
thereon makes such action necessary or advisable in the public convenience and interest."
The delegated power, if at all, therefore, is not the determination of what the law shall be,
but merely the ascertainment of the facts and circumstances upon which the application of
said law is to be predicated. To promulgate rules and regulations on the use of national
roads and to determine when and how long a national road should be closed to traffic, in
view of the condition of the road or the traffic thereon and the requirements of public
convenience and interest, is an administrative function which cannot be directly
discharged by the National Assembly. It must depend on the discretion of some other
government official to whom is confided the duty of determining whether the proper
occasion exists for executing the law. But it cannot be said that the exercise of such
discretion is the making of the law.
2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL AUTHORITY. —
Commonwealth Act No. 548 was passed by the National Assembly in the exercise of the
paramount police power of the state. Said Act, by virtue of which the rules and regulations
complained of were promulgated, aims to promote safe transit upon and avoid
obstructions on national roads, in the interest and convenience of the public. In enacting
said law, therefore, the National Assembly was prompted by considerations of public
convenience and welfare. It was inspired by a desire to relieve congestion of traffic, which
is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of
the enactment of said law, and the state in order to promote the general welfare may
interfere with personal liberty, with property, and with business and occupations. Persons
and property may be subjected to all kinds of restraints and burdens, in order to secure
the general comfort, health, and prosperity of the state (U.S. v. Gomer Jesus, 31 Phil.,
218). To this fundamental aim of our Government the rights of the individual are
subordinated. Liberty is a blessing without which life is a misery, but liberty should not be
made to prevail over authority because then society will fall into anarchy. Neither should
authority be made to prevail over liberty because then the individual will fall into slavery.
The citizen should achieve the required balance of liberty and authority in his mind
through education and, personal discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for all. The moment greater
authority is conferred upon the government, logically so much is withdrawn from the
residuum of liberty which resides in the people. The paradox lies in the fact that the
apparent curtailment of liberty is precisely the very means of insuring its preservation.
3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither communism, nor despotism, nor
atomism, nor anarchy," but the humanization of laws and the equalization of social and
economic forces by the State so that justice in its rational and objectively secular
conception may at least be approximated. Social justice means the promotion of the
welfare of all the people, the adoption by the Government of measures calculated to insure
economic stability of all the competent elements of society, through the maintenance of a
proper economic and social equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of powers underlying the existence of all
governments on the time-honored principle of salus populi est suprema lex. Social justice,
therefore, must be founded on the recognition of the necessity of interdependence among
divers and diverse units of a society and of the protection that should be equally and
evenly extended to all groups as a combined force in our social and economic life,
consistent with the fundamental and paramount objective of the state of promoting the
health, comfort, and quiet of all persons, and of bringing about "the greatest good to the
greatest number."
DECISION
LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought
before this court this petition for a writ of prohibition against the respondents, A. D.
Williams, as Chairman of the National Traffic Commission; Vicente Fragante, as Director of
Public Works; Sergio Bayan, as Acting Secretary of Public Works and Communications;
Eulogio Rodriguez, as Mayor of the City of Manila; and Juan Dominguez, as Acting Chief of
Police of Manila.
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It is alleged in the petition that the National Traffic Commission, in its resolution of July
17, 1940, resolved to recommend to the Director of Public Works and to the Secretary of
Public Works and Communications that animal-drawn vehicles be prohibited from passing
along Rosario Street extending from Plaza Calderon de la Barca to Dasmariñas Street,
from 7:30 a.m. to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and along Rizal Avenue
extending from the railroad crossing at Antipolo Street to Echague Street, from 7 a.m. to
11 p.m., from a period of one year from the date of the opening of the Colgante Bridge to
traffic; that the Chairman of the National Traffic Commission, on July 18, 1940
recommended to the Director of Public Works the adoption of the measure proposed in the
resolution aforementioned, in pursuance of the provisions of Commonwealth Act No. 548
which authorizes said Director of Public Works, with the approval of the Secretary of Public
Works and Communications, to promulgate rules and regulations to regulate and control
the use of and traffic on national roads; that on August 2, 1940, the Director of Public
Works, in his first indorsement to the Secretary of Public Works and Communications,
recommended to the latter the approval of the recommendation made by the Chairman of
the National Traffic Commission as aforesaid, with the modification that the closing of Rizal
Avenue to traffic to animal-drawn vehicles be limited to the portion thereof extending from
the railroad crossing at Antipolo Street to Azcarraga Street; that on August 10, 1940, the
Secretary of Public Works and Communications, in his second indorsement addressed to
the Director of Public Works, approved the recommendation of the latter that Rosario
Street and Rizal Avenue be closed to traffic of animal-drawn vehicles, between the points
and during the hours as above indicated, for a period of one year from the date of the
opening of the Colgante Bridge to traffic; that the Mayor of Manila and the Acting Chief of
Police of Manila have enforced and caused to be enforced the rules and regulations thus
adopted; that as a consequence of such enforcement, all animal-drawn vehicles are not
allowed to pass and pick up passengers in the places above-mentioned to the detriment
not only of their owners but of the riding public as well.
It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of
Public Works, with the approval of the Secretary of Public Works and Communications, is
authorized to promulgate rules and regulations for the regulation and control of the use of
and traffic on national roads and streets is unconstitutional because it constitutes an
undue delegation of legislative power. This contention is untenable. As was observed by
this court in Rubi v. Provincial Board of Mindoro (39 Phil, 660, 700), "The rule has
nowhere been better stated than in the early Ohio case decided by Judge Ranney, and
since followed in a multitude of cases, namely: ’The true distinction therefore 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. v. Comm’rs. Clinton County, 1
Ohio St., 88.) Discretion, as held by Chief Justice Marshall in Wayman v. Southard (10
Wheat., 1) may be committed by the Legislature to an executive department or official.
The Legislature may make decisions of executive departments or subordinate officials
thereof, to whom it has committed the execution of certain acts, final on questions of fact.
(U.S. v. Kinkead, 248 Fed., 141.) The growing tendency in the decisions is to give
prominence to the ’necessity’ of the case."cralaw virtua1aw library
Section 1 of Commonwealth Act No. 548 reads as follows:jgc:chanrobles.com.ph
"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets
designated as national roads by acts of the National Assembly or by executive orders of
the President of the Philippines, the Director of Public Works, with the approval of the
Secretary of Public Works and Communications, shall promulgate the necessary rules and
regulations to regulate and control the use of and traffic on such roads and streets. Such
rules and regulations, with the approval of the President, may contain provisions
controlling or regulating the construction of buildings or other structures within a
reasonable distance from along the national roads. Such roads may be temporarily closed
to any or all classes of traffic by the Director of Public Works and his duly authorized
representatives whenever the condition of the road or the traffic thereon makes such
action necessary or advisable in the public convenience and interest, or for a specified
period, with the approval of the Secretary of Public Works and Communications."cralaw
virtua1aw library
The above provisions of law do not confer legislative power upon the Director of Public
Works and the Secretary of Public Works and Communications. The authority therein
conferred upon them and under which they promulgated the rules and regulations now
complained of is not to determine what public policy demands but merely to carry out the
legislative policy laid down by the National Assembly in said Act, to wit, "to promote safe
transit upon and avoid obstructions on, roads and streets designated as national roads by
acts of the National Assembly or by executive orders of the President of the Philippines"
and to close them temporarily to any or all classes of traffic "whenever the condition of the
road or the traffic makes such action necessary or advisable in the public convenience and
interest." The delegated power, if at all, therefore, is not the determination of what the
law shall be, but merely the ascertainment of the facts and circumstances upon which the
application of said law is to be predicated. To promulgate rules and regulations on the use
of national roads and to determine when and how long a national road should be closed to
traffic, in view of the condition of the road or the traffic thereon and the requirements of
public convenience and interest, is an administrative function which cannot be directly
discharged by the National Assembly. It must depend on the discretion of some other
government official to whom is confided the duty of determining whether the proper
occasion exists for executing the law. But it cannot be said that the exercise of such
discretion is the making of the law. As was said in Locke’s Appeal (72 Pa. 491): "To assert
that a law is less than a law, because it is made to depend on a future event or act, is to
rob the Legislature of the power to act wisely for the public welfare whenever a law is
passed relating to a state of affairs not yet developed, or to things future and impossible
to fully know." The proper distinction the court said was this: "The Legislature cannot
delegate its power to make the law; but it can make a law to delegate a power to
determine some fact or state of things upon which the law makes, or intends to make, its
own action depend. To deny this would be to stop the wheels of government. There are
many things upon which wise and useful legislation must depend which cannot be known
to the law-making power, and, must, therefore, be a subject of inquiry and determination
outside of the halls of legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)
In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, promulgated
June 12, 1939, and in Pangasinan Transportation v. The Public Service Commission, G.R.
No. 47065, promulgated June 26, 1940, this Court had occasion to observe that the
principle of separation of powers has been made to adapt itself to the complexities of
modern governments, giving rise to the adoption, within certain limits, of the principle of
14 | P a g e
"subordinate legislation," not only in the United States and England but in practically all
modern governments. Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulations, and the increased difficulty of
administering the laws, the rigidity of the theory of separation of governmental powers
has, to a large extent, been relaxed by permitting the delegation of greater powers by the
legislative and vesting a larger amount of discretion in administrative and executive
officials, not only in the execution of the laws, but also in the promulgation of certain rules
and regulations calculated to promote public interest.
The petitioner further contends that the rules and regulations promulgated by the
respondents pursuant to the provisions of Commonwealth Act No. 548 constitute an
unlawful interference with legitimate business or trade and abridge the right to personal
liberty and freedom of locomotion. Commonwealth Act No. 548 was passed by the
National Assembly in the exercise of the paramount police power of the state.
Said Act, by virtue of which the rules and regulations complained of were promulgated,
aims to promote safe transit upon and avoid obstructions on national roads, in the interest
and convenience of the public. In enacting said law, therefore, the National Assembly was
prompted by considerations of public convenience and welfare. It was inspired by a desire
to relieve congestion of traffic. which is, to say the least, a menace to public safety. Public
welfare, then, lies at the bottom of the enactment of said law, and the state in order to
promote the general welfare may interfere with personal liberty, with property, and with
business and occupations. Persons and property may be subjected to all kinds of restraints
and burdens, in order to secure the general comfort, health, and prosperity of the state
(U.S. v. Gomez Jesus, 31 Phil., 218). To this fundamental aim of our Government the
rights of the individual are subordinated. Liberty is a blessing without which life is a
misery, but liberty should not be made to prevail over authority because then society will
fall into anarchy. Neither should authority be made to prevail over liberty because then the
individual will fall into slavery. The citizen should achieve the required balance of liberty
and authority in his mind through education and personal discipline, so that there may be
established the resultant equilibrium, which means peace and order and happiness for all.
The moment greater authority is conferred upon the government, logically so much is
withdrawn from the residuum of liberty which resides in the people. The paradox lies in
the fact that the apparent curtailment of liberty is precisely the very means of insuring its
preservation.
The scope of police power keeps expanding as civilization advances. As was said in the
case of Dobbins v. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to exercise
the police power is a continuing one, and a business lawful today may in the future,
because of the changed situation, the growth of population or other causes, become a
menace to the public health and welfare, and be required to yield to the public good." And
in People v. Pomar (46 Phil., 440), it was observed that "advancing civilization is bringing
within the police power of the state today things which were not thought of as being within
such power yesterday. The development of civilization, the rapidly increasing population,
the growth of public opinion, with an increasing desire on the part of the masses and of
the government to look after and care for the interests of the individuals of the state, have
brought within the police power many questions for regulation which formerly were not so
considered."cralaw virtua1aw library
The petitioner finally avers that the rules and regulations complained of infringe upon the
constitutional precept regarding the promotion of social justice to insure the well-being
and economic security of all the people. The promotion of social justice, however, is to be
achieved not through a mistaken sympathy towards any given group. Social justice is
"neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of
laws and the equalization of social and economic forces by the State so that justice in its
rational and objectively secular conception may at least be approximated. Social justice
means the promotion of the welfare of all the people, the adoption by the Government of
measures calculated to insure economic stability of all the competent elements of society,
through the maintenance of a proper economic and social equilibrium in the interrelations
of the members of the community, constitutionally, through the adoption of measures
legally justifiable, or extra-constitutionally, through the exercise of powers underlying the
existence of all governments on the time-honored principle of salus populi est suprema
lex.
Social justice, therefore, must be founded on the recognition of the necessity of
interdependence among divers and diverse units of a society and of the protection that
should be equally and evenly extended to all groups as a combined force in our social and
economic life, consistent with the fundamental and paramount objective of the state of
promoting the health, comfort, and quiet of all persons, and of bringing about "the
greatest good to the greatest number."cralaw virtua1aw library
In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs
against the petitioner. So ordered.
G.R. No. L-45459 March 13, 1937
GREGORIO AGLIPAY, petitioner,
vs.
JUAN RUIZ, respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent
Church, seeks the issuance from this court of a writ of prohibition to prevent the
respondent Director of Posts from issuing and selling postage stamps commemorative of
the Thirty-third International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he would order
the issues of postage stamps commemorating the celebration in the City of Manila of the
Thirty-third international Eucharistic Congress, organized by the Roman Catholic Church.
The petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente
Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the
Philippines. In spite of the protest of the petitioner's attorney, the respondent publicly
announced having sent to the United States the designs of the postage stamps for printing
as follows:
"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps
are blue, green, brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The
15 | P a g e
denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually
issued and sold though the greater part thereof, to this day, remains unsold. The further
sale of the stamps is sought to be prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper legal remedy
in the instant case, although he admits that the writ may properly restrain ministerial
functions. While, generally, prohibition as an extraordinary legal writ will not issue to
restrain or control the performance of other than judicial or quasi-judicial functions (50 C.
J., 6580, its issuance and enforcement are regulated by statute and in this jurisdiction
may issue to . . . inferior tribunals, corporations, boards, or persons, whether excercising
functions judicial or ministerial, which are without or in excess of the jurisdiction of such
tribunal, corporation, board, or person, . . . ." (Secs. 516 and 226, Code of Civil
Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the
statute are undoubtedly comprehensive and include the challenged act of the respondent
Director of Posts in the present case, which act because alleged to be violative of the
Constitution is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule,
therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to
courts or tribunals to keep them within the limits of their own jurisdiction and to prevent
them from encroaching upon the jurisdiction of other tribunals, but will issue, in
appropriate cases, to an officer or person whose acts are without or in excess of his
authority. Not infrequently, "the writ is granted, where it is necessary for the orderly
administration of justice, or to prevent the use of the strong arm of the law in an
oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs.
Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the Constitution by
the respondent in issuing and selling postage stamps commemorative of the Thirty-third
International Eucharistic Congress. It is alleged that this action of the respondent is
violative of the provisions of section 23, subsection 3, Article VI, of the Constitution of the
Philippines, which provides as follows:
No public money or property shall ever be appropriated, applied, or used, directly
or indirectly, for the use, benefit, or support of any sect, church, denomination,
secretarian, institution, or system of religion, or for the use, benefit, or support of
any priest, preacher, minister, or other religious teacher or dignitary as such,
except when such priest, preacher, minister, or dignitary is assigned to the armed
forces or to any penal institution, orphanage, or leprosarium.
The prohibition herein expressed is a direct corollary of the principle of separation of
church and state. Without the necessity of adverting to the historical background of this
principle in our country, it is sufficient to say that our history, not to speak of the history
of mankind, has taught us that the union of church and state is prejudicial to both, for
ocassions might arise when the estate will use the church, and the church the state, as a
weapon in the furtherance of their recognized this principle of separation of church and
state in the early stages of our constitutional development; it was inserted in the Treaty of
Paris between the United States and Spain of December 10, 1898, reiterated in President
McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of
1902 and in the autonomy Act of August 29, 1916, and finally embodied in the
constitution of the Philippines as the supreme expression of the Filipino people. It is almost
trite to say now that in this country we enjoy both religious and civil freedom. All the
officers of the Government, from the highest to the lowest, in taking their oath to support
and defend the constitution, bind themselves to recognize and respect the constitutional
guarantee of religious freedom, with its inherent limitations and recognized implications. It
should be stated that what is guaranteed by our Constitution is religious liberty, not mere
religious toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of profound
reverence for religion and is not denial of its influence in human affairs. Religion as a
profession of faith to an active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino people, in the preamble
of their Constitution, implored "the aid of Divine Providence, in order to establish a
government that shall embody their ideals, conserve and develop the patrimony of the
nation, promote the general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and democracy," they thereby
manifested reliance upon Him who guides the destinies of men and nations. The elevating
influence of religion in human society is recognized here as elsewhere. In fact, certain
general concessions are indiscriminately accorded to religious sects and denominations.
Our Constitution and laws exempt from taxation properties devoted exclusively to religious
purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4,
Ordinance appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian
aid is not prohibited when a priest, preacher, minister or other religious teacher or
dignitary as such is assigned to the armed forces or to any penal institution, orphanage or
leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional
religious instruction in the public schools is by constitutional mandate allowed (sec. 5, Art.
XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and
Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays and made legal
holidays (sec. 29, Adm. Code) because of the secular idea that their observance is
conclusive to beneficial moral results. The law allows divorce but punishes polygamy and
bigamy; and certain crimes against religious worship are considered crimes against the
fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the postage
stamps in question under the provisions of Act No. 4052 of the Philippine Legislature. This
Act is as follows:
No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND
MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY
NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF
POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES.
Be it enacted by the Senate and House of Representatives of the Philippines in
Legislature assembled and by the authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made
immediately available out of any funds in the Insular Treasury not otherwise appropriated,
for the costs of plates and printing of postage stamps with new designs, and other
expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and
Communications, is hereby authorized to dispose of the whole or any portion of the
16 | P a g e
amount herein appropriated in the manner indicated and as often as may be deemed
advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the
Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of
plates and printing of postage stamps with new designs and other expenses incident
thereto, and authorizes the Director of Posts, with the approval of the Secretary of Public
Works and Communications, to dispose of the amount appropriated in the manner
indicated and "as often as may be deemed advantageous to the Government". The
printing and issuance of the postage stamps in question appears to have been approved
by authority of the President of the Philippines in a letter dated September 1, 1936, made
part of the respondent's memorandum as Exhibit A. The respondent alleges that the
Government of the Philippines would suffer losses if the writ prayed for is granted. He
estimates the revenue to be derived from the sale of the postage stamps in question at
P1,618,17.10 and states that there still remain to be sold stamps worth P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the Director of
Posts is the discretionary power to determine when the issuance of special postage stamps
would be "advantageous to the Government." Of course, the phrase "advantageous to the
Government" does not authorize the violation of the Constitution. It does not authorize the
appropriation, use or application of public money or property for the use, benefit or
support of a particular sect or church. In the present case, however, the issuance of the
postage stamps in question by the Director of Posts and the Secretary of Public Works and
Communications was not inspired by any sectarian denomination. The stamps were not
issue and sold for the benefit of the Roman Catholic Church. Nor were money derived from
the sale of the stamps given to that church. On the contrary, it appears from the latter of
the Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint,
that the only purpose in issuing and selling the stamps was "to advertise the Philippines
and attract more tourist to this country." The officials concerned merely, took advantage
of an event considered of international importance "to give publicity to the Philippines and
its people" (Letter of the Undersecretary of Public Works and Communications to the
President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to
note that the stamps as actually designed and printed (Exhibit 2), instead of showing a
Catholic Church chalice as originally planned, contains a map of the Philippines and the
location of the City of Manila, and an inscription as follows: "Seat XXXIII International
Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress
itself but Manila, the capital of the Philippines, as the seat of that congress. It is obvious
that while the issuance and sale of the stamps in question may be said to be inseparably
linked with an event of a religious character, the resulting propaganda, if any, received by
the Roman Catholic Church, was not the aim and purpose of the Government. We are of
the opinion that the Government should not be embarassed in its activities simply because
of incidental results, more or less religious in character, if the purpose had in view is one
which could legitimately be undertaken by appropriate legislation. The main purpose
should not be frustrated by its subordinate to mere incidental results not contemplated.
(Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for the petitioner to
maintain inviolate the complete separation of church and state and curb any attempt to
infringe by indirection a constitutional inhibition. Indeed, in the Philippines, once the scene
of religious intolerance and prescription, care should be taken that at this stage of our
political development nothing is done by the Government or its officials that may lead to
the belief that the Government is taking sides or favoring a particular religious sect or
institution. But, upon very serious reflection, examination of Act No. 4052, and scrutiny of
the attending circumstances, we have come to the conclusion that there has been no
constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts, with
the approval of the Secretary of Public Works and Communications, discretion to misuse
postage stamps with new designs "as often as may be deemed advantageous to the
Government." Even if we were to assume that these officials made use of a poor judgment
in issuing and selling the postage stamps in question still, the case of the petitioner would
fail to take in weight. Between the exercise of a poor judgment and the unconstitutionality
of the step taken, a gap exists which is yet to be filled to justify the court in setting aside
the official act assailed as coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without pronouncement as to costs.
So ordered.
U.S. Supreme Court
Everson v. Board of Education, 330 U.S. 1 (1947)
Everson v. Board of Education of the Township of Ewing
No. 52
Argued November 20, 1946
Decided February 10, 1947
330 U.S. 1
Syllabus
Pursuant to a New Jersey statute authorizing district boards of education to make
rules and contracts for the transportation of children to and from schools other than
private schools operated for profit, a board of education by resolution authorized the
reimbursement of parents for fares paid for the transportation by public carrier of children
attending public and Catholic schools. The Catholic schools operated under the
superintendency of a Catholic priest and, in addition to secular education, gave religious
instruction in the Catholic Faith. A district taxpayer challenged the validity under the
Federal Constitution of the statute and resolution so far as they authorized reimbursement
to parents for the transportation of children attending sectarian schools. No question was
raised as to whether the exclusion of private schools operated for profit denied equal
protection of the laws; nor did the record show that there were any children in the district
who attended, or would have attended but for the cost of transportation, any but public or
Catholic schools.
Held:
1. The expenditure of tax raised funds thus authorized was for a public purpose,
and did not violate the due process clause of the Fourteenth Amendment. Pp. 330 U. S. 5-
8.
2. The statute and resolution did not violate the provision of the First Amendment
(made applicable to the states by the Fourteenth Amendment) prohibiting any "law
respecting an establishment of religion." Pp. 330 U. S. 8-18.
17 | P a g e
133 N.J.L. 350, 44 A.2d 333, affirmed.
Page 330 U. S. 2
In a suit by a taxpayer, the New Jersey Supreme Court held that the state
legislature was without power under the state constitution to authorize reimbursement to
parents of bus fares paid for transporting their children to schools other than public
schools. 132 N.J.L. 98, 39 A.2d 75. The New Jersey Court of Errors and Appeals reversed,
holding that neither the statute nor a resolution passed pursuant to it violated the state
constitution or the provisions of the Federal Constitution in issue. 133 N.J.L. 350, 44 A.2d
333. On appeal of the federal questions to this Court, affirmed, p. 330 U. S. 18.
Page 330 U. S. 3
United States Supreme Court
ENGEL v. VITALE(1962)
No. 468
Argued: April 3, 1962Decided: June 25, 1962
Because of the prohibition of the First Amendment against the enactment of any law
"respecting an establishment of religion," which is made applicable to the States by the
Fourteenth Amendment, state officials may not compose an official state prayer and
require that it be recited in the public schools of the State at the beginning of each school
day - even if the prayer is denominationally neutral and pupils who wish to do so may
remain silent or be excused from the room while the prayer is being recited. Pp. 422-436.
10 N. Y. 2d 174, 176 N. E. 2d 579, reversed.
William J. Butler argued the cause for petitioners. With him on the briefs was Stanley
Geller.
Bertram B. Daiker argued the cause for respondents. With him on the briefs was Wilford E.
Neier.
Porter R. Chandler argued the cause for intervenors-respondents. With him on the briefs
were Thomas J. Ford and Richard E. Nolan.
Charles A. Brind filed a brief for the Board of Regents of the University of the State of New
York, as amicus curiae, in opposition to the petition for certiorari.
Briefs of amici curiae, urging reversal, were filed by Herbert A. Wolff, Leo Rosen and
Nancy Wechsler for the American Ethical Union; Louis Caplan, Edwin J. Lukas, Paul
Hartman, Theodore Leskes and Sol Rabkin for the American Jewish Committee et al.; and
Leo Pfeffer, Lewis H. Weinstein, Albert Wald, Shad Polier and Samuel Lawrence Brennglass
for the Synagogue Council of America et al.
A brief of amici curiae, urging affirmance, was filed by Roger D. Foley, Attorney General of
Nevada, Robert [370 U.S. 421, 422] Pickrell, Attorney General of Arizona, Frank Holt,
Attorney General of Arkansas, Albert L. Coles, Attorney General of Connecticut, Richard W.
Ervin, Attorney General of Florida, Eugene Cook, Attorney General of Georgia, Frank
Benson, Attorney General of Idaho, Edwin K. Steers, Attorney General of Indiana, William
M. Ferguson, Attorney General of Kansas, Jack P. F. Gremillion, Attorney General of
Louisiana, Thomas B. Finan, Attorney General of Maryland, Joe T. Patterson, Attorney
General of Mississippi, William Maynard, Attorney General of New Hampshire, Arthur J.
Sills, Attorney General of New Jersey, Earl E. Hartley, Attorney General of New Mexico,
Leslie R. Burgum, Attorney General of North Dakota, David Stahl, Attorney General of
Pennsylvania, J. Joseph Nugent, Attorney General of Rhode Island, Daniel R. McLeod,
Attorney General of South Carolina, A. C. Miller, Attorney General of South Dakota, Will
Wilson, Attorney General of Texas, and C. Donald Robertson, Attorney General of West
Virginia.
MR. JUSTICE BLACK delivered the opinion of the Court.
The respondent Board of Education of Union Free School District No. 9, New Hyde Park,
New York, acting in its official capacity under state law, directed the School District's
principal to cause the following prayer to be said aloud by each class in the presence of a
teacher at the beginning of each school day:
"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy
blessings upon us, our parents, our teachers and our Country."
This daily procedure was adopted on the recommendation of the State Board of Regents, a
governmental agency created by the State Constitution to which the New York Legislature
has granted broad supervisory, executive, and [370 U.S. 421, 423] legislative powers
over the State's public school system. 1 These state officials composed the prayer which
they recommended and published as a part of their "Statement on Moral and Spiritual
Training in the Schools," saying: "We believe that this Statement will be subscribed to by
all men and women of good will, and we call upon all of them to aid in giving life to our
program."
Shortly after the practice of reciting the Regents' prayer was adopted by the School
District, the parents of ten pupils brought this action in a New York State Court insisting
that use of this official prayer in the public schools was contrary to the beliefs, religions, or
religious practices of both themselves and their children. Among other things, these
parents challenged the constitutionality of both the state law authorizing the School
District to direct the use of prayer in public schools and the School District's regulation
ordering the recitation of this particular prayer on the ground that these actions of official
governmental agencies violate that part of the First Amendment of the Federal
Constitution which commands that "Congress shall make no law respecting an
establishment of religion" - a command which was "made applicable to the State of New
York by the Fourteenth Amendment of the said Constitution." The New York Court of
Appeals, over the dissents of Judges Dye and Fuld, sustained an order of the lower state
courts which had upheld the power of New York to use the Regents' prayer as a part of the
daily procedures of its public schools so long as the schools did not compel any pupil to
join in the prayer over his or his parents' objection. 2 [370 U.S. 421, 424] We granted
certiorari to review this important decision involving rights protected by the First and
Fourteenth Amendments. 3
18 | P a g e
We think that by using its public school system to encourage recitation of the Regents'
prayer, the State of New York has adopted a practice wholly inconsistent with the
Establishment Clause. There can, of course, be no doubt that New York's program of daily
classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious
activity. It is a solemn avowal of divine faith and supplication for the blessings of the
Almighty. The nature of such a prayer has always been [370 U.S. 421, 425] religious,
none of the respondents has denied this and the trial court expressly so found:
"The religious nature of prayer was recognized by Jefferson and has been
concurred in by theological writers, the United States Supreme Court and State
courts and administrative officials, including New York's Commissioner of
Education. A committee of the New York Legislature has agreed.
"The Board of Regents as amicus curiae, the respondents and intervenors all
concede the religious nature of prayer, but seek to distinguish this prayer because
it is based on our spiritual heritage. . . ." 4
The petitioners contend among other things that the state laws requiring or permitting use
of the Regents' prayer must be struck down as a violation of the Establishment Clause
because that prayer was composed by governmental officials as a part of a governmental
program to further religious beliefs. For this reason, petitioners argue, the State's use of
the Regents' prayer in its public school system breaches the constitutional wall of
separation between Church and State. We agree with that contention since we think that
the constitutional prohibition against laws respecting an establishment of religion must at
least mean that in this country it is no part of the business of government to compose
official prayers for any group of the American people to recite as a part of a religious
program carried on by government.
It is a matter of history that this very practice of establishing governmentally composed
prayers for religious services was one of the reasons which caused many of our early
colonists to leave England and seek religious freedom in America. The Book of Common
Prayer, [370 U.S. 421, 426] which was created under governmental direction and which
was approved by Acts of Parliament in 1548 and 1549, 5 set out in minute detail the
accepted form and content of prayer and other religious ceremonies to be used in the
established, tax-supported Church of England. 6 The controversies over the Book and
what should be its content repeatedly threatened to disrupt the peace of that country as
the accepted forms of prayer in the established church changed with the views of the
particular ruler that happened to be in control at the time. 7Powerful groups representing
some of the varying religious views of the people struggled among themselves to impress
their particular views upon the Government and [370 U.S. 421, 427] obtain amendments
of the Book more suitable to their respective notions of how religious services should be
conducted in order that the official religious establishment would advance their particular
religious beliefs. 8 Other groups, lacking the necessary political power to influence the
Government on the matter, decided to leave England and its established church and seek
freedom in America from England's governmentally ordained and supported religion.
It is an unfortunate fact of history that when some of the very groups which had most
strenuously opposed the established Church of England found themselves sufficiently in
control of colonial governments in this country to write their own prayers into law, they
passed laws making their own religion the official religion of their respective
colonies. 9Indeed, as late as the time of the Revolutionary [370 U.S. 421, 428] War,
there were established churches in at least eight of the thirteen former colonies and
established religions in at least four of the other five. 10 But the successful Revolution
against English political domination was shortly followed by intense opposition to the
practice of establishing religion by law. This opposition crystallized rapidly into an effective
political force in Virginia where the minority religious groups such as Presbyterians,
Lutherans, Quakers and Baptists had gained such strength that the adherents to the
established Episcopal Church were actually a minority themselves. In 1785-1786, those
opposed to the established Church, led by James Madison and Thomas Jefferson, who,
though themselves not members of any of these dissenting religious groups, opposed all
religious establishments by law on grounds of principle, obtained the enactment of the
famous "Virginia Bill for Religious Liberty" by which all religious groups were placed on an
equal footing so far as the State was concerned. 11 Similar though less far-reaching [370
U.S. 421, 429] legislation was being considered and passed in other States. 12
By the time of the adoption of the Constitution, our history shows that there was a
widespread awareness among many Americans of the dangers of a union of Church and
State. These people knew, some of them from bitter personal experience, that one of the
greatest dangers to the freedom of the individual to worship in his own way lay in the
Government's placing its official stamp of approval upon one particular kind of prayer or
one particular form of religious services. They knew the anguish, hardship and bitter strife
that could come when zealous religious groups struggled with one another to obtain the
Government's stamp of approval from each King, Queen, or Protector that came to
temporary power. The Constitution was intended to avert a part of this danger by leaving
the government of this country in the hands of the people rather than in the hands of any
monarch. But this safeguard was not enough. Our Founders were no more willing to let
the content of their prayers and their privilege of praying whenever they pleased be
influenced by the ballot box than they were to let these vital matters of personal
conscience depend upon the succession of monarchs. The First Amendment was added to
the Constitution to stand as a guarantee that neither the power nor the prestige of the
Federal Government would be used to control, support or influence the kinds of prayer the
American people can say - [370 U.S. 421, 430] that the people's religious must not be
subjected to the pressures of government for change each time a new political
administration is elected to office. Under that Amendment's prohibition against
governmental establishment of religion, as reinforced by the provisions of the Fourteenth
Amendment, government in this country, be it state or federal, is without power to
prescribe by law any particular form of prayer which is to be used as an official prayer in
carrying on any program of governmentally sponsored religious activity.
There can be no doubt that New York's state prayer program officially establishes the
religious beliefs embodied in the Regents' prayer. The respondents' argument to the
contrary, which is largely based upon the contention that the Regents' prayer is "non-
denominational" and the fact that the program, as modified and approved by state courts,
does not require all pupils to recite the prayer but permits those who wish to do so to
remain silent or be excused from the room, ignores the essential nature of the program's
constitutional defects. Neither the fact that the prayer may be denominationally neutral
nor the fact that its observance on the part of the students is voluntary can serve to free it
from the limitations of the Establishment Clause, as it might from the Free Exercise
19 | P a g e
Clause, of the First Amendment, both of which are operative against the States by virtue
of the Fourteenth Amendment. Although these two clauses may in certain instances
overlap, they forbid two quite different kinds of governmental encroachment upon
religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not
depend upon any showing of direct governmental compulsion and is violated by the
enactment of laws which establish an official religion whether those laws operate directly
to coerce nonobserving individuals or not. This is not to say, of course, that [370 U.S. 421,
431] laws officially prescribing a particular form of religious worship do not involve
coercion of such individuals. When the power, prestige and financial support of
government is placed behind a particular religious belief, the indirect coercive pressure
upon religious minorities to conform to the prevailing officially approved religion is plain.
But the purposes underlying the Establishment Clause go much further than that. Its first
and most immediate purpose rested on the belief that a union of government and religion
tends to destroy government and to degrade religion. The history of governmentally
established religion, both in England and in this country, showed that whenever
government had allied itself with one particular form of religion, the inevitable result had
been that it had incurred the hatred, disrespect and even contempt of those who held
contrary beliefs. 13 That same history showed that many people had lost their respect for
any religion that had relied upon the support of government to spread its faith. 14 The
Establishment Clause [370 U.S. 421, 432] thus stands as an expression of principle on
the part of the Founders of our Constitution that religion is too personal, too sacred, too
holy, to permit its "unhallowed perversion" by a civil magistrate. 15 Another purpose of
the Establishment Clause rested upon an awareness of the historical fact that
governmentally established religions and religious persecutions go hand in hand. 16 The
Founders knew that only a few years after the Book of Common Prayer became the only
accepted form of religious services in the established Church of England, an Act of
Uniformity was passed to compel all Englishmen to attend those services and to make it a
criminal offense to conduct or attend religious gatherings of any other kind 17 - a law [370
U.S. 421, 433] which was consistently flouted by dissenting religious groups in England
and which contributed to widespread persecutions of people like John Bunyan who
persisted in holding "unlawful [religious] meetings . . . to the great disturbance and
distraction of the good subjects of this kingdom . . . ." 18 And they knew that similar
persecutions had received the sanction of law in several of the colonies in this country
soon after the establishment of official religions in those colonies. 19 It was in large part
to get completely away from this sort of systematic religious persecution that the
Founders brought into being our Nation, our Constitution, and our Bill of Rights with its
prohibition against any governmental establishment of religion. The New York laws
officially prescribing the Regents' prayer are inconsistent both with the purposes of the
Establishment Clause and with the Establishment Clause itself.
It has been argued that to apply the Constitution in such a way as to prohibit state laws
respecting an [370 U.S. 421, 434] establishment of religious services in public schools is
to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more
wrong. The history of man is inseparable from the history of religion. And perhaps it is not
too much to say that since the beginning of that history many people have devoutly
believed that "More things are wrought by prayer than this world dreams of." It was
doubtless largely due to men who believed this that there grew up a sentiment that
caused men to leave the cross-currents of officially established state religions and religious
persecution in Europe and come to this country filled with the hope that they could find a
place in which they could pray when they pleased to the God of their faith in the language
they chose. 20 And there were men of this same faith in the [370 U.S. 421, 435] power
of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights
with the very guarantees of religious freedom that forbid the sort of governmental activity
which New York has attempted here. These men knew that the First Amendment, which
tried to put an end to governmental control of religion and of prayer, was not written to
destroy either. They knew rather that it was written to quiet well-justified fears which
nearly all of them felt arising out of an awareness that governments of the past had
shackled men's tongues to make them speak only the religious thoughts that government
wanted them to speak and to pray only to the God that government wanted them to pray
to. It is neither sacrilegious nor antireligious to say that each separate government in this
country should stay out of the business of writing or sanctioning official prayers and leave
that purely religious function to the people themselves and to those the people choose to
look to for religious guidance. 21 [370 U.S. 421, 436]
It is true that New York's establishment of its Regents' prayer as an officially approved
religious doctrine of that State does not amount to a total establishment of one particular
religious sect to the exclusion of all others - that, indeed, the governmental endorsement
of that prayer seems relatively insignificant when compared to the governmental
encroachments upon religion which were commonplace 200 years ago. To those who may
subscribe to the view that because the Regents' official prayer is so brief and general there
can be no danger to religious freedom in its governmental establishment, however, it may
be appropriate to say in the words of James Madison, the author of the First Amendment:
"[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does
not see that the same authority which can establish Christianity, in exclusion of all
other Religions, may establish with the same ease any particular sect of
Christians, in exclusion of all other Sects? That the same authority which can force
a citizen to contribute three pence only of his property for the support of any one
establishment, may force him to conform to any other establishment in all cases
whatsoever?" 22
The judgment of the Court of Appeals of New York is reversed and the cause remanded for
further proceedings not inconsistent with this opinion.
Reversed and remanded.
MR. JUSTICE FRANKFURTER took no part in the decision of this case.
MR. JUSTICE WHITE took no part in the consideration or decision of this case.
Footnotes
[ Footnote 1 ] See New York Constitution, Art. V, 4; New York Education Law, 101, 120 et
seq., 202, 214-219, 224, 245 et seq., 704, and 801 et seq.
[ Footnote 2 ] 10 N. Y. 2d 174, 176 N. E. 2d 579. The trial court's opinion, which is
reported at 18 Misc. 2d 659, 191 N. Y. S. 2d 453, had made it clear that the Board of
Education must set up some sort [370 U.S. 421, 424] of procedures to protect those who
objected to reciting the prayer: "This is not to say that the rights accorded petitioners and
20 | P a g e
their children under the `free exercise' clause do not mandate safeguards against such
embarrassments and pressures. It is enough on this score, however, that regulations,
such as were adopted by New York City's Board of Education in connection with its
released time program, be adopted, making clear that neither teachers nor any other
school authority may comment on participation or nonparticipation in the exercise nor
suggest or require that any posture or language be used or dress be worn or be not used
or not worn. Nonparticipation may take the form either of remaining silent during the
exercise, or if the parent or child so desires, of being excused entirely from the exercise.
Such regulations must also make provision for those nonparticipants who are to be
excused from the prayer exercise. The exact provision to be made is a matter for decision
by the board, rather than the court, within the framework of constitutional requirements.
Within that framework would fall a provision that prayer participants proceed to a common
assembly while nonparticipants attend other rooms, or that nonparticipants be permitted
to arrive at school a few minutes late or to attend separate opening exercises, or any
other method which treats with equality both participants and nonparticipants." 18 Misc.
2d, at 696, 191 N. Y. S. 2d, at 492-493. See also the opinion of the Appellate Division
affirming that of the trial court, reported at 11 App. Div. 2d 340, 206 N. Y. S. 2d 183.
[ Footnote 3 ] 368 U.S. 924 .
[ Footnote 4 ] 18 Misc. 2d, at 671-672, 191 N. Y. S. 2d, at 468-469.
[ Footnote 5 ] 2 & 3 Edward VI, c. 1, entitled "An Act for Uniformity of Service and
Administration of the Sacraments throughout the Realm"; 3 & 4 Edward VI, c. 10, entitled
"An Act for the abolishing and putting away of divers Books and Images."
[ Footnote 6 ] The provisions of the various versions of the Book of Common Prayer are
set out in broad outline in the Encyclopedia Britannica, Vol. 18 (1957 ed.), pp. 420-423.
For a more complete description, see Pullan, The History of the Book of Common Prayer
(1900).
[ Footnote 7 ] The first major revision of the Book of Common Prayer was made in 1552
during the reign of Edward VI. 5 & 6 Edward VI, c. 1. In 1553, Edward VI died and was
succeeded by Mary who abolished the Book of Common Prayer entirely. 1 Mary, c. 2. But
upon the accession of Elizabeth in 1558, the Book was restored with important alterations
from the form it had been given by Edward VI. 1 Elizabeth, c. 2. The resentment to this
amended form of the Book was kept firmly under control during the reign of Elizabeth but,
upon her death in 1603, a petition signed by more than 1,000 Puritan ministers was
presented to King James I asking for further alterations in the Book. Some alterations
were made and the Book retained substantially this form until it was completely
suppressed again in 1645 as a result of the successful Puritan Revolution. Shortly after the
restoration in 1660 of Charles II, the Book was again reintroduced, 13 & 14 Charles II, c.
4, and again with alterations. Rather than accept this form of the Book some 2,000 Puritan
ministers vacated their benefices. See generally Pullan, The History of the Book of
Common Prayer (1900), pp. vii-xvi; Encyclopaedia Britannica (1957 ed.), Vol. 18, pp. 421-
422.
[ Footnote 8 ] For example, the Puritans twice attempted to modify the Book of Common
Prayer and once attempted to destroy it. The story of their struggle to modify the Book in
the reign of Charles I is vividly summarized in Pullan, History of the Book of Common
Prayer, at p. xiii: "The King actively supported those members of the Church of England
who were anxious to vindicate its Catholic character and maintain the ceremonial which
Elizabeth had approved. Laud, Archbishop of Canterbury, was the leader of this school.
Equally resolute in his opposition to the distinctive tenets of Rome and of Geneva, he
enjoyed the hatred of both Jesuit and Calvinist. He helped the Scottish bishops, who had
made large concessions to the uncouth habits of Presbyterian worship, to draw up a Book
of Common Prayer for Scotland. It contained a Communion Office resembling that of the
book of 1549. It came into use in 1637, and met with a bitter and barbarous opposition.
The vigour of the Scottish Protestants strengthened the hands of their English
sympathisers. Laud and Charles were executed, Episcopacy was abolished, the use of the
Book of Common Prayer was prohibited."
[ Footnote 9 ] For a description of some of the laws enacted by early theocratic
governments in New England, see Parrington, Main Currents in American Thought (1930),
Vol. 1, pp. 5-50; Whipple, Our Ancient Liberties (1927), pp. 63-78; Wertenbaker, The
Puritan Oligarchy (1947).
[ Footnote 10 ] The Church of England was the established church of at least five colonies:
Maryland, Virginia, North Carolina, South Carolina and Georgia. There seems to be some
controversy as to whether that church was officially established in New York and New
Jersey but there is no doubt that it received substantial support from those States. See
Cobb, The Rise of Religious Liberty in America (1902), pp. 338, 408. In Massachusetts,
New Hampshire and Connecticut, the Congregationalist Church was officially established.
In Pennsylvania and Delaware, all Christian sects were treated equally in most situations
but Catholics were discriminated against in some respects. See generally Cobb, The Rise
of Religious Liberty in America (1902). In Rhode Island all Protestants enjoyed equal
privileges but it is not clear whether Catholics were allowed to vote. Compare Fiske, The
Critical Period in American History (1899), p. 76 with Cobb, The Rise of Religious Liberty in
America (1902), pp. 437-438.
[ Footnote 11 ] 12 Hening, Statutes of Virginia (1823), 84, entitled "An act for establishing
religious freedom." The story of the events surrounding the enactment of this law was
reviewed in Everson v. Board of Education, 330 U.S. 1 , both by the Court, at pp. 11-13,
and in the [370 U.S. 421, 429] dissenting opinion of Mr. Justice Rutledge, at pp. 33-42.
See also Fiske, The Critical Period in American History (1899), pp. 78-82; James, The
Struggle for Religious Liberty in Virginia (1900); Thom, The Struggle for Religious Freedom
in Virginia: The Baptists (1900); Cobb, The Rise of Religious Liberty in America (1902),
pp. 74-115, 482-499.
[ Footnote 12 ] See Cobb, The Rise of Religious Liberty in America (1902), pp. 482-509.
[ Footnote 13 ] "[A]ttempts to enforce by legal sanctions, acts obnoxious to so great a
proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of
Society. If it be difficult to execute any law which is not generally deemed necessary or
21 | P a g e
salutary, what must be the case where it is deemed invalid and dangerous? and what may
be the effect of so striking an example of impotency in the Government, on its general
authority." Memorial and Remonstrance against Religious Assessments, II Writings of
Madison 183, 190.
[ Footnote 14 ] "It is moreover to weaken in those who profess this Religion a pious
confidence in its innate excellence, and the patronage of its Author; and to foster in those
who still reject it, a suspicion that its friends are too conscious of its fallacies, to trust it to
its own merits. . . . [E]xperience witnesseth that ecclesiastical establishments, instead of
maintaining the purity and efficacy of Religion, have had a contrary operation. During
almost fifteen centuries, has the legal establishment of Christianity been on trial. What
have been its fruits? More or less in all places, pride and indolence in the Clergy;
ignorance and servility in the laity; in both, superstition, [370 U.S. 421, 432] bigotry and
persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its
greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil
policy." Id., at 187.
[ Footnote 15 ] Memorial and Remonstrance against Religious Assessments, II Writings of
Madison, at 187.
[ Footnote 16 ] "[T]he proposed establishment is a departure from that generous policy,
which, offering an asylum to the persecuted and oppressed of every Nation and Religion,
promised a lustre to our country, and an accession to the number of its citizens. What a
melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to
the persecuted, it is itself a signal of persecution. . . . Distant as it may be, in its present
form, from the Inquisition it differs from it only in degree. The one is the first step, the
other the last in the career of intolerance. The magnanimous sufferer under this cruel
scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to
seek some other haven, where liberty and philanthropy in their due extent may offer a
more certain repose from his troubles." Id., at 188.
[ Footnote 17 ] 5 & 6 Edward VI, c. 1, entitled "An Act for the Uniformity of Service and
Administration of Sacraments throughout the Realm." This Act was repealed during the
reign of Mary but revived upon the accession of Elizabeth. See note 7, supra. The reasons
which led to the enactment of this statute were set out in its preamble: "Where there hath
been a very godly Order set forth by the Authority of Parliament, for Common Prayer and
Administration of the Sacraments [370 U.S. 421, 433] to be used in the Mother Tongue
within the Church of England, agreeable to the Word of God and the Primitive Church, very
comfortable to all good People desiring to live in Christian Conversation, and most
profitable to the Estate of this Realm, upon the which the Mercy, Favour and Blessing of
Almighty God is in no wise so readily and plenteously poured as by Common Prayers, due
using of the Sacraments, and often preaching of the Gospel, with the Devotion of the
Hearers: (1) And yet this notwithstanding, a great Number of People in divers Parts of this
Realm, following their own Sensuality, and living either without Knowledge or due Fear of
God, do wilfully and damnably before Almighty God abstain and refuse to come to their
Parish Churches and other Places where Common Prayer, Administration of the
Sacraments, and Preaching of the Word of God, is used upon Sundays and other Days
ordained to be Holydays."
[ Footnote 18 ] Bunyan's own account of his trial is set forth in A Relation of the
Imprisonment of Mr. John Bunyan, reprinted in Grace Abounding and The Pilgrim's
Progress (Brown ed. 1907), at 103-132.
[ Footnote 19 ] For a vivid account of some of these persecutions, see Wertenbaker, The
Puritan Oligarchy (1947).
[ Footnote 20 ] Perhaps the best example of the sort of men who came to this country for
precisely that reason is Roger Williams, the founder of Rhode Island, who has been
described as "the truest Christian amongst many who sincerely desired to be Christian."
Parrington, Main Currents in American Thought (1930), Vol. 1, at p. 74. Williams, who was
one of the earliest exponents of the doctrine of separation of church and state, believed
that separation was necessary in order to protect the church from the danger of
destruction which he thought inevitably flowed from control by even the best-intentioned
civil authorities: "The unknowing zeale of Constantine and other Emperours, did more hurt
to Christ Jesus his Crowne and Kingdome, then the raging fury of the most bloody Neroes.
In the persecutions of the later, Christians were sweet and fragrant, like spice pounded
and beaten in morters: But those good Emperours, persecuting some erroneous persons,
Arrius, & c. and advancing the professours of some Truths of Christ (for there was no
small number of Truths lost in those times) and maintaining their Religion by the materiall
Sword, I say by this meanes Christianity was ecclipsed, and the Professors of it fell asleep
. . . ." Williams, The Bloudy Tenent, of Persecution, for cause of Conscience, discussed in A
Conference between Truth and Peace (London, 1644), reprinted in Narragansett Club
Publications, Vol. III, p. 184. To Williams, it was no part of the business or competence of
a civil magistrate to interfere in religious matters: "[W]hat imprudence and indiscretion is
it in the most common [370 U.S. 421, 435] affaires of Life, to conceive that Emperours,
Kings and Rulers of the earth must not only be qualified with politicall and state abilities to
make and execute such Civill Lawes which may concerne the common rights, peace and
safety (which is worke and businesse, load and burthen enough for the ablest shoulders in
the Commonweal) but also furnished with such Spirituall and heavenly abilities to governe
the Spirituall and Christian Commonweale . . . ." Id., at 366. See also id., at 136-137.
[ Footnote 21 ] There is of course nothing in the decision reached here that is inconsistent
with the fact that school children and others are officially encouraged to express love for
our country by reciting historical documents such as the Declaration of Independence
which contain references to the Deity or by singing officially espoused anthems which
include the composer's professions of faith in a Supreme Being, or with the fact that there
are many manifestations in our public life of belief in God. Such patriotic or ceremonial
occasions bear no true resemblance to the unquestioned religious exercise that the State
of New York has sponsored in this instance.
[ Footnote 22 ] Memorial and Remonstrance against Religious Assessments, II Writings of
Madison 183, at 185-186. [370 U.S. 421, 437]
MR. JUSTICE DOUGLAS, concurring.
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It is customary in deciding a constitutional question to treat it in its narrowest form. Yet at
times the setting of the question gives it a form and content which no abstract treatment
could give. The point for decision is whether the Government can constitutionally finance a
religious exercise. Our system at the federal and state levels is presently honeycombed
with such financing. 1 Nevertheless, I think it is an unconstitutional undertaking whatever
form it takes.
First, a word as to what this case does not involve. [370 U.S. 421, 438]
Plainly, our Bill of Rights would not permit a State or the Federal Government to adopt an
official prayer and penalize anyone who would not utter it. This, however, is not that case,
for there is no element of compulsion or coercion in New York's regulation requiring that
public schools be opened each day with the following prayer:
"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy
blessings upon us, our parents, our teachers and our Country."
The prayer is said upon the commencement of the school day, immediately following the
pledge of allegiance to the flag. The prayer is said aloud in the presence of a teacher, who
either leads the recitation or selects a student to do so. No student, however, is compelled
to take part. The respondents have adopted a regulation which provides that "Neither
teachers nor any school authority shall comment on participation or non-participation . . .
nor suggest or request that any posture or language be used or dress be worn or be not
used or not worn." Provision is also made for excusing children, upon written request of a
parent or guardian, from the saying of the prayer or from the room in which the prayer is
said. A letter implementing and explaining this regulation has been sent to each taxpayer
and parent in the school district. As I read this regulation, a child is free to stand or not
stand, to recite or not recite, without fear of reprisal or even comment by the teacher or
any other school official.
In short, the only one who need utter the prayer is the teacher; and no teacher is
complaining of it. Students can stand mute or even leave the classroom, if they
desire. 2 [370 U.S. 421, 439]
McCollum v. Board of Education, 333 U.S. 203 , does not decide this case. It involved the
use of public school facilities for religious education of students. Students either had to
attend religious instruction or "go to some other place in the school building for pursuit of
their secular studies. . . . Reports of their presence or absence were to be made to their
secular teachers." Id., at 209. The influence of the teaching staff was therefore brought to
bear on the student body, to support the instilling of religious principles. In the present
case, school facilities are used to say the prayer and the teaching staff is employed to lead
the pupils in it. There is, however, no effort at indoctrination and no attempt at exposition.
Prayers of course may be so long and of such a character as to amount to an attempt at
the religious instruction that was denied the public schools by the McCollum case. But New
York's prayer is of a character that does not involve any element of proselytizing as in the
McCollum case.
The question presented by this case is therefore an extremely narrow one. It is whether
New York oversteps the bounds when it finances a religious exercise.
What New York does on the opening of its public schools is what we do when we open
court. Our Crier has from the beginning announced the convening of the Court and then
added "God save the United States and this Honorable Court." That utterance is a
supplication, a prayer in which we, the judges, are free to join, but which we need not
recite any more than the students need recite the New York prayer.
What New York does on the opening of its public schools is what each House of
Congress 3 does at the opening [370 U.S. 421, 440] of each day's business. 4 Reverend
Frederick B. Harris is Chaplain of the Senate; Reverend Bernard Braskamp is Chaplain of
the House. Guest chaplains of various denominations also officiate. 5 [370 U.S. 421,
441]
In New York the teacher who leads in prayer is on the public payroll; and the time she
takes seems minuscule as compared with the salaries appropriated by state legislatures
and Congress for chaplains to conduct prayers in the legislative halls. Only a bare fraction
of the teacher's time is given to reciting this short 22-word prayer, about the same
amount of time that our Crier spends announcing the opening of our sessions and offering
a prayer for this Court. Yet for me the principle is the same, no matter how briefly the
prayer is said, for in each of the instances given the person praying is a public official on
the public payroll, performing a religious exercise in a governmental institution. 6 It is said
that the[370 U.S. 421, 442] element of coercion is inherent in the giving of this prayer.
If that is true here, it is also true of the prayer with which this Court is convened, and of
those that open the Congress. Few adults, let alone children, would leave our courtroom or
the Senate or the House while those prayers are being given. Every such audience is in a
sense a "captive" audience.
At the same time I cannot say that to authorize this prayer is to establish a religion in the
strictly historic meaning of those words. 7 A religion is not established in the usual sense
merely by letting those who choose to do so say the prayer that the public school teacher
leads. Yet once government finances a religious exercise it inserts a divisive influence into
our communities. 8 The New York Court said that the prayer given does not conform to all
of the tenets of the Jewish, Unitarian, and Ethical Culture groups. One of the petitioners is
an agnostic.
"We are a religious people whose institutions presuppose a Supreme Being."
Zorach v. Clauson, 343 U.S. 306, 313 . Under our Bill of Rights free play is given
for [370 U.S. 421, 443] making religion an active force in our lives. 9 But "if a
religious leaven is to be worked into the affairs of our people, it is to be done by
individuals and groups, not by the Government." McGowan v. Maryland, 366 U.S.
420, 563 (dissenting opinion). By reason of the First Amendment government is
commanded "to have no interest in theology or ritual" (id., at 564), for on those
matters "government must be neutral." Ibid. The First Amendment leaves the
Government in a position not of hostility to religion but of neutrality. The
philosophy is that the atheist or agnostic - the nonbeliever - is entitled to go his
23 | P a g e
 own way. The philosophy is that if government interferes in matters spiritual, it
will be a divisive force. The First Amendment teaches that a government neutral in
the field of religion better serves all religious interests.
My problem today would be uncomplicated but for Everson v. Board of Education, 330 U.S.
1, 17 , which allowed taxpayers' money to be used to pay "the bus fares of parochial
school pupils as a part of a general program under which" the fares of pupils attending
public and other schools were also paid. The Everson case seems in retrospect to be out of
line with the First Amendment. Its result is appealing, as it allows aid to be given to needy
children. Yet by the same token, public funds could be used to satisfy other needs of
children in parochial schools - lunches, books, and tuition being obvious examples. Mr.
Justice Rutledge stated in dissent what I think is durable First Amendment philosophy:
"The reasons underlying the Amendment's policy have not vanished with time or
diminished in force. [370 U.S. 421, 444] Now as when it was adopted the price of
religious freedom is double. It is that the church and religion shall live both within
and upon that freedom. There cannot be freedom of religion, safeguarded by the
state, and intervention by the church or its agencies in the state's domain or
dependency on its largesse. Madison's Remonstrance, Par. 6, 8. The great
condition of religious liberty is that it be maintained free from sustenance, as also
from other interferences, by the state. For when it comes to rest upon that secular
foundation it vanishes with the resting. Id., Par. 7, 8. Public money devoted to
payment of religious costs, educational or other, brings the quest for more. It
brings too the struggle of sect against sect for the larger share or for any. Here
one by numbers alone will benefit most, there another. That is precisely the
history of societies which have had an established religion and dissident groups.
Id., Par. 8, 11. It is the very thing Jefferson and Madison experienced and sought
to guard against, whether in its blunt or in its more screened forms. Ibid. The end
of such strife cannot be other than to destroy the cherished liberty. The
dominating group will achieve the dominant benefit; or all will embroil the state in
their dissensions. Id., Par. 11." Id., pp. 53-54.
What New York does with this prayer is a break with that tradition. I therefore join the
Court in reversing the judgment below.
[ Footnote 1 ] "There are many `aids' to religion in this country at all levels of
government. To mention but a few at the federal level, one might begin by observing that
the very First Congress which wrote the First Amendment provided for chaplains in both
Houses and in the armed services. There is compulsory chapel at the service academies,
and religious services are held in federal hospitals and prisons. The President issues
religious proclamations. The Bible is used for the administration of oaths. N. Y. A. and W.
P. A. funds were available to parochial schools during the depression. Veterans receiving
money under the `G. I.' Bill of 1944 could attend denominational schools, to which
payments were made directly by the government. During World War II, federal money
was contributed to denominational schools for the training of nurses. The benefits of the
National School Lunch Act are available to students in private as well as public schools.
The Hospital Survey and Construction Act of 1946 specifically made money available to
non-public hospitals. The slogan `In God We Trust' is used by the Treasury Department,
and Congress recently added God to the pledge of allegiance. There is Bible-reading in the
schools of the District of Columbia, and religious instruction is given in the District's
National Training School for Boys. Religious organizations are exempt from the federal
income tax and are granted postal privileges. Up to defined limits - 15 per cent of the
adjusted gross income of individuals and 5 per cent of the net income of corporations -
contributions to religious organizations are deductible for federal income tax purposes.
There are no limits to the deductibility of gifts and bequests to religious institutions made
under the federal gift and estate tax laws. This list of federal `aids' could easily be
expanded, and of course there is a long list in each state." Fellman, The Limits of Freedom
(1959), pp. 40-41.
[ Footnote 2 ] West Point Cadets are required to attend chapel each Sunday. Reg., c. 21,
2101. The same requirement obtains at the Naval Academy (Reg., c. 9, 0901, (1) (a)),
and at the Air Force Academy except First Classmen. Catalogue, 1962-1963, p. 110. And
see Honeywell, [370 U.S. 421, 439] Chaplains of the United States Army (1958):
Jorgensen, The Service of Chaplains to Army Air Units, 1917-1946, Vol. I (1961).
[ Footnote 3 ] The New York Legislature follows the same procedure. See, e. g., Vol. 1, N.
Y. Assembly Jour., 184th Sess., 1961, p. 8: Vol. 1, N. Y. Senate Jour., 184th Sess., 1961,
p. 5.
[ Footnote 4 ] Rules of the Senate provide that each calendar day's session shall open with
prayer. See Rule III, Senate Manual, S. Doc. No. 2, 87th Cong., 1st Sess. The same is true
of the Rules of the House. See Rule VII, Rules of the House of Representatives, H. R. Doc.
No. 459, 86th Cong., 2d Sess. The Chaplains of the Senate and of the House receive
$8,810 annually. See 75 Stat. 320, 324.
[ Footnote 5 ] It would, I assume, make no difference in the present case if a different
prayer were said every day or if the ministers of the community rotated, each giving his
own prayer. For some of the petitioners in the present case profess no religion.
The Pledge of Allegiance, like the prayer, recognizes the existence of a Supreme Being.
Since 1954 it has contained the words "one Nation under God, indivisible, with liberty and
justice for all." 36 U.S.C. 172. The House Report recommending the addition of the words
"under God" stated that those words in no way run contrary to the First Amendment but
recognize "only the guidance of God in our national affairs." H. R. Rep. No. 1693, 83d
Cong., 2d Sess., p. 3. And see S. Rep. No. 1287, 83d Cong., 2d Sess. Senator Ferguson,
who sponsored the measure in the Senate, pointed out that the words "In God We Trust"
are over the entrance to the Senate Chamber. 100 Cong. Rec. 6348. He added:
"I have felt that the Pledge of Allegiance to the Flag which stands for the United
States of America should recognize the Creator who we really believe is in control
of the destinies of this great Republic.
"It is true that under the Constitution no power is lodged anywhere to establish a
religion. This is not an attempt to establish a religion; it has nothing to do with
anything of that kind. It relates to belief in God, in whom we sincerely repose our
trust. We know that America cannot be defended by guns, planes, and ships alone.
Appropriations and expenditures for defense will be of value only if the God under
whom we live believes that we are in the right. We should at all times recognize
God's province over the lives of our people and over this great Nation." Ibid. And
see 100 Cong. Rec. 7757 et seq. for the debates in the House.
24 | P a g e
The Act of March 3, 1865, 13 Stat. 517, 518, authorized the phrase "In God We Trust" to
be placed on coins. And see 17 Stat. 427. The first mandatory requirement for the use of
that motto on coins [370 U.S. 421, 441] was made by the Act of May 18, 1908, 35 Stat.
164. See H. R. Rep. No. 1106, 60th Cong., 1st Sess.; 42 Cong. Rec. 3384 et seq. The use
of the motto on all currency and coins was directed by the Act of July 11, 1955, 69 Stat.
290. See H. R. Rep. No. 662, 84th Cong., 1st Sess.; S. Rep. No. 637, 84th Cong., 1st
Sess. Moreover, by the Joint Resolution of July 30, 1956, our national motto was declared
to be "In God We Trust." 70 Stat. 732. In reporting the Joint Resolution, the Senate
Judiciary Committee stated:
"Further official recognition of this motto was given by the adoption of the Star-
Spangled Banner as our national anthem. One stanza of our national anthem is as
follows:
"`O, thus be it ever when freemen shall stand Between their lov'd home
and the war's desolation! Blest with vict'ry and peace may the heav'n
rescued land Praise the power that hath made and preserved us a nation!
Then conquer we must when our cause it is just, And this be our motto -
"In God is our trust." And the Star-Spangled Banner in triumph shall wave
O'er the land of the free and the home of the brave.'
"In view of these words in our national anthem, it is clear that `In God we trust'
has a strong claim as our national motto." S. Rep. No. 2703, 84th Cong., 2d Sess.,
p. 2.
[ Footnote 6 ] The fact that taxpayers do not have standing in the federal courts to raise
the issue (Frothingham v. Mellon, 262 U.S. 447 ) is of course no justification for drawing a
line between what is done in New York on the one hand and on the other what we do and
what Congress does in this matter of prayer.
[ Footnote 7 ] The Court analogizes the present case to those involving the traditional
Established Church. We once had an Established Church, the Anglican. All baptisms and
marriages had to take place there. That church was supported by taxation. In these and
other ways the Anglican Church was favored over the others. The First Amendment put an
end to placing any one church in a preferred position. It ended support of any church or all
churches by taxation. It went further and prevented secular sanction to any religious
ceremony, dogma, or rite. Thus, it prevents civil penalties from being applied against
recalcitrants or nonconformists.
MR. JUSTICE STEWART, dissenting.
A local school board in New York has provided that those pupils who wish to do so may
join in a brief prayer at the beginning of each school day, acknowledging their dependence
upon God and asking His blessing upon them [370 U.S. 421, 445] and upon their
parents, their teachers, and their country. The Court today decides that in permitting this
brief nondenominational prayer the school board has violated the Constitution of the
United States. I think this decision is wrong.
The Court does not hold, nor could it, that New York has interfered with the free exercise
of anybody's religion. For the state courts have made clear that those who object to
reciting the prayer must be entirely free of any compulsion to do so, including any
"embarrassments and pressures." Cf. West Virginia State Board of Education v. Barnette,
319 U.S. 624 . But the Court says that in permitting school children to say this simple
prayer, the New York authorities have established "an official religion."
With all respect, I think the Court has misapplied a great constitutional principle. I cannot
see how an "official religion" is established by letting those who want to say a prayer say
it. On the contrary, I think that to deny the wish of these school children to join in reciting
this prayer is to deny them the opportunity of sharing in the spiritual heritage of our
Nation.
The Court's historical review of the quarrels over the Book of Common Prayer in England
throws no light for me on the issue before us in this case. England had then and has now
an established church. Equally unenlightening, I think, is the history of the early
establishment and later rejection of an official church in our own States. For we deal here
not with the establishment of a state church, which would, of course, be constitutionally
impermissible, but with whether school children who want to begin their day by joining in
prayer must be prohibited from doing so. Moreover, I think that the Court's task, in this as
in all areas of constitutional adjudication, is not responsibly aided by the uncritical
invocation of metaphors like the "wall of separation," a phrase nowhere to [370 U.S. 421,
446] be found in the Constitution. What is relevant to the issue here is not the history of
an established church in sixteenth century England or in eighteenth century America, but
the history of the religious traditions of our people, reflected in countless practices of the
institutions and officials of our government.

[ Footnote 8 ] Some communities have a Christmas tree purchased with the taxpayers'
At the opening of each day's Session of this Court we stand, while one of our officials
money. The tree is sometimes decorated with the words "Peace on earth, goodwill to
invokes the protection of God. Since the days of John Marshall our Crier has said, "God
men." At other times the authorities draw from a different version of the Bible which says
save the United States and this Honorable Court." 1 Both the Senate and the House of
"Peace on earth to men of goodwill." Christmas, I suppose, is still a religious celebration,
Representatives open their daily Sessions with prayer. 2 Each of our Presidents, from
not merely a day put on the calendar for the benefit of merchants.
George Washington to John F. Kennedy, has upon assuming his Office asked the
protection and help of God. 3 [370 U.S. 421, 447]
[ Footnote 9 ] Religion was once deemed to be a function of the public school system. The
Northwest Ordinance, which antedated the First Amendment, provided in Article III that
The Court today says that the state and federal governments are without constitutional
"Religion, morality, and knowledge being necessary to good government and the
power to prescribe any particular form of words to be recited by any group of the
happiness of mankind, schools and the means of education shall forever be encouraged."
American people on any subject touching religion. 4 One of the stanzas of "The Star-

25 | P a g e
Spangled Banner," made our National Anthem by Act of Congress in 1931, 5 contains
these verses:
"Blest with victory and peace, may the heav'n rescued land
Praise the Pow'r that hath made and preserved us a nation!
Then conquer we must, when our cause it is just, And this be our motto `In God is
our Trust.'"
In 1954 Congress added a phrase to the Pledge of Allegiance to the Flag so that it now
contains the words "one Nation under God, indivisible, with liberty and justice for all." 6 In
1952 Congress enacted legislation calling upon the President each year to proclaim a
National Day of Prayer. 7 Since 1865 the words "IN GOD WE TRUST" have been impressed
on our coins. 8 [370 U.S. 421, 450]
Countless similar examples could be listed, but there is no need to belabor the
obvious. 9 It was all summed up by this Court just ten years ago in a single sentence: "We
are a religious people whose institutions presuppose a Supreme Being." Zorach v.
Clauson, 343 U.S. 306, 313 .
I do not believe that this Court, or the Congress, or the President has by the actions and
practices I have mentioned established an "official religion" in violation of the Constitution.
And I do not believe the State of New York has done so in this case. What each has done
has been to recognize and to follow the deeply entrenched and highly cherished spiritual
traditions of our Nation - traditions which come down to us from those who almost two
hundred years ago avowed their "firm Reliance on the Protection of divine Providence"
when they proclaimed the freedom and independence of this brave new world. 10
I dissent.
[ Footnote 1 ] See Warren, The Supreme Court in United States History, Vol. 1, p. 469.
[ Footnote 2 ] See Rule III, Senate Manual, S. Doc. No. 2, 87th Cong., 1st Sess. See Rule
VII, Rules of the House of Representatives, H. R. Doc. No. 459, 86th Cong., 2d Sess.
[ Footnote 3 ] For example:
On April 30, 1789, President George Washington said:
". . . it would be peculiarly improper to omit in this first official act my fervent
supplications to that Almighty Being who rules over the universe, who presides in
the councils of nations, and whose providential aids can supply every human
defect, that His benediction may consecrate to the liberties and happiness of the
people of the United States a Government instituted by themselves for these
essential purposes, and may enable every instrument employed in its
administration to execute with success the functions allotted to his charge. In
tendering this homage to the Great Author of every public and private good, I
assure myself that it expresses your sentiments not less than my own, nor those
of my fellow-citizens at large less than either. No people can be bound to
acknowledge and adore the Invisible Hand which conducts the affairs of men more
than those of the United States. . . .
.....
"Having thus imparted to you my sentiments as they have been awakened by the
occasion which brings us together, I shall [370 U.S. 421, 447] take my present
leave; but not without resorting once more to the benign Parent of the Human
Race in humble supplication that, since He has been pleased to favor the American
people with opportunities for deliberating in perfect tranquillity, and dispositions
for deciding with unparalleled unanimity on a form of government for the security
of their union and the advancement of their happiness, so His divine blessing may
be equally conspicuous in the enlarged views, the temperate consultations, and
the wise measures on which the success of this Government must depend."
On March 4, 1797, President John Adams said:
"And may that Being who is supreme over all, the Patron of Order, the Fountain of
Justice, and the Protector in all ages of the world of virtuous liberty, continue His
blessing upon this nation and its Government and give it all possible success and
duration consistent with the ends of His providence."
On March 4, 1805, President Thomas Jefferson said:
". . . I shall need, too, the favor of that Being in whose hands we are, who led our
fathers, as Israel of old, from their native land and planted them in a country
flowing with all the necessaries and comforts of life; who has covered our infancy
with His providence and our riper years with His wisdom and power, and to whose
goodness I ask you to join in supplications with me that He will so enlighten the
minds of your servants, guide their councils, and prosper their measures that
whatsoever they do shall result in your good, and shall secure to you the peace,
friendship, and approbation of all nations."
On March 4, 1809, President James Madison said:
"But the source to which I look . . . is in . . . my fellow-citizens, and in the
counsels of those representing them in the other departments associated in the
care of the national interests. In these my confidence will under every difficulty be
best placed, next to that which we have all been encouraged to feel in the
guardianship and guidance of that Almighty Being whose power regulates the
destiny of nations, whose blessings have been so conspicuously dispensed to this
rising Republic, and to whom we are bound to address our devout gratitude for the
past, as well as our fervent supplications and best hopes for the future." [370 U.S.
421, 448]
On March 4, 1865, President Abraham Lincoln said:
". . . Fondly do we hope, fervently do we pray, that this mighty scourge of war
may speedily pass away. Yet, if God wills that it continue until all the wealth piled
by the bondsman's two hundred and fifty years of unrequited toil shall be sunk,
and until every drop of blood drawn with the lash shall be paid by another drawn
with the sword, as was said three thousand years ago, so still it must be said `the
judgments of the Lord are true and righteous altogether.'
"With malice toward none, with charity for all, with firmness in the right as God
gives us to see the right, let us strive on to finish the work we are in, to bind up
the nation's wounds, to care for him who shall have borne the battle and for his
widow and his orphan, to do all which may achieve and cherish a just and lasting
peace among ourselves and with all nations."
26 | P a g e
On March 4, 1885, President Grover Cleveland said:
". . . And let us not trust to human effort alone, but humbly acknowledging the
power and goodness of Almighty God, who presides over the destiny of nations,
and who has at all times been revealed in our country's history, let us invoke His
aid and His blessing upon our labors."
On March 5, 1917, President Woodrow Wilson said:
". . . I pray God I may be given the wisdom and the prudence to do my duty in the
true spirit of this great people."
On March 4, 1933, President Franklin D. Roosevelt said:
"In this dedication of a Nation we humbly ask the blessing of God. May He protect
each and every one of us. May He guide me in the days to come."
On January 21, 1957, President Dwight D. Eisenhower said:
"Before all else, we seek, upon our common labor as a nation, the blessings of
Almighty God. And the hopes in our hearts fashion the deepest prayers of our
whole people."
On January 20, 1961, President John F. Kennedy said:
"The world is very different now. . . . And yet the same revolutionary beliefs for
which our forebears fought are still at issue around the globe - the belief that the
rights of man come [370 U.S. 421, 449] not from the generosity of the state but
from the hand of God.
.....
"With a good conscience our only sure reward, with history the final judge of our
deeds, let us go forth to lead the land we love, asking His blessing and His help,
but knowing that here on earth God's work must truly be our own."
[ Footnote 4 ] My brother DOUGLAS says that the only question before us is whether
government "can constitutionally finance a religious exercise." The official chaplains of
Congress are paid with public money. So are military chaplains. So are state and federal
prison chaplains.
[ Footnote 9 ] I am at a loss to understand the Court's unsupported ipse dixit that these
official expressions of religious faith in and reliance upon a Supreme Being "bear no true
resemblance to the unquestioned religious exercise that the State of New York has
sponsored in this instance." See ante, p. 435, n. 21. I can hardly think that the Court
means to say that the First Amendment imposes a lesser restriction upon the Federal
Government than does the Fourteenth Amendment upon the States. Or is the Court
suggesting that the Constitution permits judges and Congressmen and Presidents to join
in prayer, but prohibits school children from doing so?
[ Footnote 10 ] The Declaration of Independence ends with this sentence: "And for the
support of this Declaration, with a firm reliance on the protection of divine Providence, we
mutually pledge to each other our Lives, our Fortunes and our sacred Honor." [370 U.S.
421, 451]
Tudor v. Board of Education of Borough of Rutherford
14 N.J. 31 (1953)
100 A.2d 857
BERNARD TUDOR, PLAINTIFF-APPELLANT, v. BOARD OF EDUCATION OF THE BOROUGH
OF RUTHERFORD, DEFENDANT-RESPONDENT, THE GIDEONS INTERNATIONAL, A
CORPORATION OF ILLINOIS, INTERVENOR-RESPONDENT.
The Supreme Court of New Jersey.
Argued October 5, 1953.
Decided December 7, 1953.
*32 Mr. Leo Pfeffer (of the New York Bar) argued the cause for the appellant (Mr.
Archibald Kreiger, attorney).
Mr. Jacob Stam argued the cause for the respondents (Messrs. Kipp, Ashen and
Somerville, attorneys for respondent Board of Education; Mr. W. Adriance Kipp, Jr., of
counsel with both respondents).
A brief amici curiae was filed by the Synagogue Council of America and the National
Community Relations Advisory *33 Council (Mr. Harry Silverstein, attorney, Messrs. Philip
Baum and Joseph B. Robison, of the New York Bar, of counsel).
The opinion of the court was delivered by VANDERBILT, C.J.
I.The Gideons International is a nonprofit corporation organized under the laws of the
State of Illinois, whose object is "to win men and women for the Lord Jesus Christ,
through * * * (c) placing the Bible God's Holy Words or portions thereof in hotels,
hospitals, schools, institutions, and also through the distribution of same for personal use."
In recent years it began a campaign to make available to pupils in the public schools of
this country the so-called "Gideon Bible," which was characterized by the International in
its pleadings as "a book containing all of the New Testament, all of the Book of Psalms
from the Old Testament, all of the Book of Proverbs from the Old Testament; all without
note or comment, conformable to the edition of 1611, commonly known as the Authorized,
or King James version of the Holy Bible." In furtherance of this campaign it applied by
letter to the Board of Education of the Borough of Rutherford for permission to distribute
its Bible to the public schools of that municipality:
"Board of Education Rutherford, N.J.
Attention: Mr. Guy Hilleboe
Gentlemen:
The Gideons of Passaic and Bergen County, consisting of local business men, hereby offer
to furnish, without charge, a volume containing the book of Psalms, Proverbs and the New
Testament to each of the children in the schools of Rutherford from the fifth grade up
through the eighth grade, and High School.
This offer is part of a national campaign conducted by the Gideons International to furnish
the Word of God free to the young people *34 of our country from the fifth grade through
27 | P a g e
the high school. If God's word is heard and heeded, if it is read and believed, we believe
that this is the answer to the problem of juvenile delinquency.
If your board approves this distribution, we will be glad to have our committee work out
the details with the principals of the schools.
Yours very truly, PASSAIC COUNTY CAMP OF GIDEONS /s/ John Van Der Eems, John Van
Der Eems, Treasurer"
The proposal was considered at a meeting of the board of education on November 5,
1951, at which time there was voiced some opposition to the proposal by a Catholic priest
and a Jewish rabbi on the grounds that the Gideons' New Testament was sectarian and
forbidden to Catholic and Jewish children under the laws of their respective religions. The
proposal, however, was passed by the board with one dissenting vote, the resolution
adopted providing that "the Gideons International be allowed to furnish copies of the New
Testament, Psalms and Proverbs to those pupils who request them." Under date of
November 21, 1951 the following request form for signature of the parents was prepared
by the board of education and distributed to the pupils of the public schools of Rutherford:
"Rutherford Pubilc Schools, Rutherford, N.J. November 21, 1951
To all Parents:
At the regular meeting of the Board of Education on November 5, 1951, The Gideon Bible
Society, presented a request that the New Testament, Psalms and Proverbs be made
available, without cost, to all children who wish a copy. The Board approved this request
provided the distribution be voluntary. If you wish a copy of this Bible, will you please sign
the slip below and return it with your child to the school he attends by Friday, December
21.
_______________________________________________________ School
___________________________ ________________________ Date
Please request The Gideon Bible Society to provide my child ____ with a copy of the New
*35 Testament, Psalms and Proverbs. This request involved no obligation on my part or on
the part of the Board of Education.
Signed ................................. Parent or Guardian"
On January 14, 1952 the board of education was advised by its counsel that the proposed
distribution was in his opinion legal. At a principal's meeting on February 6, 1952 the
following instructions were issued:
"(a) Only names of pupils whose parents had previously signed for the Bibles should be
used in any announcement.
(b) Pupils whose parents had signed for Bibles are to report to the home room at the close
of the session and no other pupils are to be in the room when the Bibles are distributed.
(c) Any announcement of names for the purpose of reporting after school should not
include a reference as to the purpose of reporting."
Prior to the distribution of the books the present action was commenced demanding
judgment as to the validity of the distribution under the Federal and New Jersey
Constitutions and seeking an injunction against it. On February 19, 1952 the trial judge
granted a temporary injunction and by order dated February 29, 1952 restrained the
board of education from carrying out the terms of its resolution of December 10, 1951,
until further determination of the action. By consent Gideons International was permitted
to intervene as a party defendant. After a full hearing the trial judge on March 30, 1953
found in favor of the defendant and vacated the restraint and stay. By consent of the
parties, however, the stay has been continued pending appeal. While the appeal was
before the Appellate Division of the Superior Court, we ordered certification on our own
motion.
The plaintiff Bernard Tudor is an adherent of the Jewish religion, while plaintiff Ralph
Lecoque is a member of the Catholic faith, each being a New Jersey citizen and taxpayer
of Rutherford and a parent of a pupil in a Rutherford public school. Each contends that the
Gideon Bible is "a sectarian work of peculiar religious value and significance to members of
the Protestant faith." Mr. Tudor claiming that "its distribution to children of the Jewish faith
violates the *36 teachings, tenets and principles of Judaism," while Mr. Lecoque states
that "its distribution to children of Catholic faith violates the teachings, tenets and
principles of Catholicism." After this action was commenced, the child of plaintiff Ralph
Lecoque transferred from the public school to a Catholic parochial school and to the extent
that the complaint was based upon his status as a parent, the issue became moot. The
State of New Jersey was originally named as a party defendant but the action as to it has
been dismissed. The Synagogue Council of America and the National Community Relations
Advisory Council have submitted a brief amici curiae.
II.The American doctrine of the separation of Church and State cannot be understood
apart from its history for it is the epitome of centuries of struggle and conflict. In 311 A.D.
Christians were still being persecuted; but shortly thereafter the Fourth Century witnessed
the toleration of Christianity in the Roman world. In 313 A.D. Constantine, the ruler of the
West, and Licinius, the emperor of the East, met in Italy and proclaimed the Edict of Milan,
which made the toleration of the Christian religion "a part of a universal toleration of all
religions, and it establishes absolute freedom of worship," Innes, Church and State, p. 23.
In 410 A.D. Rome was sacked by Alaric. Italy, as well as Spain and Africa, fell to the
Teutonic barbarians, but these conquests did not spell defeat for Christianity. The attitude
of the invaders is illustrated by the words of Theodoric, speaking shortly after the fall of
Rome:
"That to pretend to a dominion over the conscience is to usurp the prerogative of God;
that by the nature of things the power of sovereigns is confined to external government;
that they have no right of punishment, but over those who disturb the public peace, of
28 | P a g e
which they are the guardians; and that the most dangerous heresy is that of a sovereign
who separates himself from a part of his subjects, because they believe not according to
his belief." Innes, Church and State, p. 51.
*37 After the collapse of the Roman Empire the Church remained as the one stable,
permanent element in society. Gradually it came to claim not merely equality with the
State, but actual superiority. Thomas Aquinas summed up the Church's attitude:
"The highest aim of mankind is eternal happiness. To this chief aim of mankind all earthly
aims must be subordinated. This chief aim cannot be realized through human direction
alone but must obtain divine assistance which is only to be obtained through the Church.
Therefore the State, through which earthly aims are obtained, must be subordinated to
the Church. Church and State are as two swords which God has given to Christendom for
protection; both of these, however, are given by him to the Pope and the temporal sword
by him handed to the rulers of the State." Bates, Religious Liberty: An Inquiry (1945), p.
140.
The Church's claim of supremacy did not go unchallenged. Charlemagne, who had been
crowned by the Pope, deliberately crowned his own son as successor without consulting
the Pope. The struggle for supremacy was on between Church and State, and the history
of the Middle Ages in Europe is largely a history of this continuing conflict. The struggles
between Pope Gregory VII and Emperor Henry IV in the 11th Century, and between the
English kings Henry II and John and Celestine III and Innocent III a century later were but
phases of the conflict. The Church reached the height of its supremacy over the State in
the 13th Century, under Innocent III, who informed the Patriarch of Constantinople that
"the Lord left to Peter (the Pope) the government not of the Church only but of the whole
world," and advised Philip Augustus of France that "single rulers have single provinces and
single kings have single kingdoms, but Peter, as in the plentitude, so in the extent of his
power, is preeminent over all since he is the vicar of Him Whose is the earth and fullness
thereof, the whole world and all that dwell therein." Bates, Religious Liberty: An Inquiry,
supra, pp. 140-141. During his rule Innocent was not only a spiritual leader but he was
also the supreme temporal chief of the Italian State, the Spanish Peninsula, the
Scandinavian States, Hungary, Bohemia, Poland, Servia, Bosnia, *38 Bulgaria, and the
Christian state of Syria, 17 Encyclopaedia Britannica (14th ed.), "Papacy," p. 203.
The 14th Century witnessed the growth of new ideas. In 1324 Marsilius of Padua in his
Defensor Pacis denied the right of the Church to interfere in any matters which were not
spiritual. He expounded the very ideas that centuries later were credited to Locke,
Montesquieu, Rousseau and Jefferson. Marsilius was far ahead of his age when he claimed
that "no man may be punished for his religion." Acton, History of Freedom in Christianity,
in Essays on Freedom and Power, p. 65.
But the doctrine of religious liberty and the separation of Church and State were not
established in Europe even with the advent of the Reformation. The Reformation brought
forth the more prevalent Erastian doctrine of state supremacy and the use of religion to
help carry out state policy. The peace of Augsburg in 1555 was a compromise between
Lutherans and Catholics, based on the theory that the religion of a province was to be
determined by the religion of its ruler (cuius regio, eius religio). To the same effect was
the peace of Westphalia in 1648 ending a 30-year religious war which swept Central
Europe:
"Each secular state in Germany was henceforth free to profess its existing religion,
whether Catholic, Lutheran, or Reformed; but no other religion was to be `received or
tolerated in the Holy Roman Empire,' and the power of the reigning princes to `reform'
their states by driving out dissenters was restrained rather than abolished." Innes, Church
and State, p. 157
In England under Queen Elizabeth the Thirty-nine Articles of the Church of England were
adopted and the supremacy of the Crown over the Church was clearly established. Bloody
struggles between Anglicans, Catholics and Dissenters continued. By the 17th Century
Catholics were regarded with disfavor and in 1647 the Constitution established by
Cromwell granted religious freedom to all except Catholics. In the Glorious Revolution of
1689 the Act of Toleration under William and Mary established religious toleration in
England, but again Catholics were excepted.
*39 By 1787 in Europe no nation had established complete freedom of worship or the
mutual independence of religion and civil government. There had been steps in that
direction and there were those who strongly advocated the separation of Church and State
but the Erastian doctrine still prevailed. In almost every country there was a state-
supported or at least a state-favored religion while the other faiths were treated with
varying degrees of toleration. In Spain the Inquisition was still in existence in 1787 while
at the other extreme Holland represented the utmost in religious toleration and freedom
for all faiths. In 1784 James Madison summed up the centuries of bloody religious battles
in Europe:
"Torrents of blood have been spilt in the world in vain attempts of the secular arm to
extinguish religious discord, by proscribing all differences in religious opinions." Blau,
Cornerstones of Religious Freedom in America (1949), p. 85.
While America has been free from religious wars, our history has had its dark pages of
religious persecution.
III.Religion was a strong motivating force in the American colonies. People of all faiths
flocked to the New World, many with the hope that here for the first time they could enjoy
religious freedom. Unfortunately to America these earlier settlers also brought the Old
World idea of a state-established and state-dominated religion. Many of the original
charters granted by the Crown required the settlers to establish a religion that was to be
supported by all, believers and nonbelievers alike. Thus, in early Virginia all ministers were
required to conform to the canons of the Church of England. Quakers were banished and
Catholics were disqualified from public office, while priests were not permitted in the
colony. In New York Peter Stuyvesant established the Dutch Reformed Church, which all
settlers were required to support. Baptists who attempted to hold services in their *40
homes were subject to fines, whipping and banishment. Quakers were unwelcome and
subject to persecution. The Commission of New Hampshire of 1680 provided:
29 | P a g e
"And above all things We do by these presents will, require and command our said Council
to take all possible care for ye discountenancing of vice and encouraging of virtue and
good living; and that by such examples ye infidle may be invited and desire to partake of
ye Christian Religion, and for ye greater ease and satisfaction of ye sd loving subjects in
matters of religion, We do hereby require and command yt liberty of conscience shall be
allowed unto all protestants; yt such especially as shall be conformable to ye rites of ye
Church of Engld shall be particularly countenanced and encouraged." 2 Poore,
Constitutions (1878), p. 1277.
In New England generally the Calvinist Congregational Church was the established
religion.
Religious freedom in the colonies was far from an established fact. In the Massachusetts
Bay Colony Anne Hutchinson in 1638 was tried and convicted as a blasphemer and
seducer of the faithful and as a teacher of erroneous doctrines, because she held meetings
in her home where she advocated the direct intuition of God's grace and love instead of
obedience to the laws of the Church and the State. Roger Williams was banished because
"he broached and divulged divers new and dangerous opinions, against the authority of
the magistrates," 1 Stokes, Church and State in the United States (1950), p. 195.
Catholics were persecuted and in 1647 the General Court ordered that:
"No Jesuit or spiritual or ecclesiastical person ordained by the pope or see of Rome shall
henceforth come into Massachusetts. Any person not freeing himself of suspicion shall be
jailed, then banished. If taken a second time he shall be put to death." Pfeffer, Church,
State and Freedom (1953), p. 68.
Despite these instances of intolerance and persecution there were successful examples of
religious freedom. In 1649, largely due to the efforts of Cecil Calvert, the second Lord
Baltimore, Maryland granted toleration to all Trinitarian Christians. In Rhode Island
through the efforts of John *41 Clarke, a follower of Roger Williams, Charles II granted a
charter in 1663 which provided for complete religious freedom. In 1683 Pennsylvania
received from William Penn its "Frame of Government" which stated that all who believed
in "One Almighty God" should be protected and all who believed in "Jesus Christ the Savior
of the World" could hold civil office.
The history of religious freedom in the province of New Jersey was not fundamentally
different from that in the other colonies, although Stokes states that we "had a better
colonial record in the matter of toleration than most of the colonies," 1 Church and State
in the United States, supra, p. 435. The grantees of the Concessions of 1665, Lord
Berkeley and Sir George Carteret, offered liberty of worship as an inducement to settlers.
This was continued under the Quakers by a law of 1681 in West Jersey and in East Jersey
by a law of 1683. Nevertheless, despite what appeared to be the establishment of religious
freedom in the Province of New Jersey, Leaming and Spicer, Grants and Concessions of
New Jersey, 1664-1702 (2nd ed. 1881, p. 14), there was strong anti-Catholic feeling in
the colony, and holders of civil office were required to take an oath against the Pope, Ibid.
p. 92. By the king's instructions to Lord Cornbury (Ibid., p. 633) in 1702 he was to permit
a liberty of conscience to all persons except Papists. Our Constitution of 1776 provides:
"XVIII. Free Exercise of religion.
"That no person shall ever within this colony be deprived of the inestimable privilege of
worshiping Almighty God in a manner agreeable to the dictates of his own conscience; nor
under any pretense whatsoever, compelled to attend any place of worship, contrary to his
own faith and judgment; nor shall any person within this colony, ever be obliged to pay
tithes, taxes or any other rates, for the purpose of building or repairing any church or
churches, place or places of worship, or for the maintenance of any minister or ministry,
contrary to what he believes to be right, or has deliberately or voluntarily engaged himself
to perform."
But the very next article of this same Constitution, after providing that there shall be "no
establishment of any one *42 religious sect in this province in preference to another,"
goes on to guarantee civil rights and the right to hold office to all who are of the
"protestant sect." The exclusion of Catholics from this guarantee of civil rights and from
holding civil office was not eliminated until the Constitution of 1844.
Generally speaking, it can then be said that religious toleration varied from one province
to another with very few approaching a system of full religious freedom. Pfeffer reviews
the religious atmosphere in the colonies:
"Summarizing the colonial period, we may note that the proprietary regimes permitted a
considerable degree of toleration, at least in comparison with the other colonies. This
difference may be explained partly by the idealism of the proprietors and partly by the
economic necessity of attracting large numbers of settlers in order to preserve and make
profitable the proprietor's substantial investment.
Even in the proprietary colonies, however, the death of the idealistic founder, Calvert,
Williams, or Penn, resulted in considerable backsliding, and the imposition of restrictions
on civil and religious rights, particularly of non-Protestants. The limited tolerance which did
exist did not include Catholics, Jews, Unitarians, or Deists. The variety and degree of
discrimination against them varied. Primarily, the discrimination was political the non-
Protestants could not vote or hold office. But the restrictions were not always limited to
political disabilities. Public performance of Catholic worship was prohibited almost
everywhere, and as late as 1756 the colony which had been founded by the Catholic
Calverts enacted a law subjecting Catholics to double taxation. Perhaps the incident that
most ironically illustrates the turnabout after the death of the idealistic founder is the
action of a Rhode Island court which in 1762 denied the petition of two Jews for
naturalization on the ground that to grant the petition would be `inconsistent with the first
principles on which the colony was founded.'" Church, State and Freedom, supra, p. 79.
It was left to Virginia to lead the struggle for religious freedom and the separation of
Church and State. In 1784 there was proposed in its House of Delegates a "bill
establishing provision for teachers of the Christian religions." Action thereon was
postponed until the next session in order that the bill could be publicized and distributed to
the people who could then make known their views. The issue was fought on a very high
plane of principle with Thomas *43 Jefferson, James Madison and George Mason aligned
30 | P a g e
with the opposition. It was then that James Madison wrote his famous A Memorial and
Remonstrance in which he presented his views that religion was not a matter within the
scope of civil government. For complete historical background and full text reference is
made to Mr. Justice Rutledge's dissenting opinion in Everson v. Board of Education, 330
U.S. 1, 28, 67 S. Ct. 504, 91 L. Ed. 711, 730 (1947). At the next session the proposed bill
was defeated and in its place an act "for establishing religious freedom" drafted by
Thomas Jefferson was passed, the preamble of which stated: "that to suffer the civil
magistrate to intrude his powers into the field of opinion, and to restrain the profession or
propagation of principles on supposition of their ill tendency, is a dangerous fallacy which
at once destroys all religious liberty." The bill further provided "that it is time enough for
the rightful purposes of civil government for its officers to interfere when principles break
out into overt acts against peace and good order." In his opinion for the court in Reynolds
v. United States, 98 U.S. 145, 163, 25 L. Ed. 244, 248 (1879), Mr. Chief Justice Waite
states that "in these two sentences is found the true distinction between what properly
belongs to the Church and what to the State."
It was a little over a year later that the Convention met in Philadelphia to draft the
Constitution of the United States. The Convention failed to include in the proposed
Constitution any Bill of Rights or any provision concerning freedom of religion. Although
adopting the Constitution, several states did so only on the understanding that a Bill of
Rights would be added including a provision for a declaration of religious liberty. At the
very first session of Congress the first ten amendments, or Bill of Rights, were proposed
and largely through the efforts of James Madison were adopted, the First Amendment
providing that "Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof." It took us over 14 centuries and an incalculable
amount of persecution to gain the religious *44 tolerance and freedom expounded in 313
A.D. by the rulers of the Roman world.
The First Amendment, of course, applied only to the Federal Government, but it has been
held that upon the adoption of the Fourteenth Amendment the prohibitions of the First
Amendment were applicable to state action bridging religious freedom, Cantwell v. State
of Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213, 1217 (1940).
IV.The charge here is sectarianism. The defendant board of education is accused of
showing a preference by permitting the distribution of the King James version of the New
Testament, which is unacceptable to those of the Jewish faith and, in fact, in conflict with
their tenets. This violates the mandate of the First Amendment, as incorporated into the
Fourteenth Amendment, prohibiting the making of any law "respecting an establishment of
religion," and the requirement of Article I, paragraph 4 of the New Jersey Constitution that
"there shall be no establishment of one religious sect, in preference to another." By its
very terms the New Jersey constitutional provision prohibits any such religious preference,
while the First Amendment to the Federal Constitution has been judicially interpreted as so
providing. As stated by Mr. Justice Black in his opinion for the majority of the court in
Everson v. Board of Education, supra, 330 U.S. 1, 15, 67 S. Ct. 504, 91 L.Ed. 711:
"The `establishment of religion' clause of the First Amendment means at least this:
Neither a state nor the Federal Government can set up a church. Neither can pass laws
which aid one religion, aid all religions, or prefer one religion over another. * * *
That Amendment [First] requires the state to be a neutral in its relations with groups of
religious believers and non-believers." (330 U.S. at page 18, 67 S.Ct. at page 511.)
In Zorach v. Clauson, 343 U.S. 306, 314, 72 S. Ct. 679, 684, 96 L. Ed. 954, 962 (1952),
Mr. Justice Douglas in his opinion for the majority of the court stated:
*45 "The government must be neutral when it comes to competition between sects."
In Fowler v. State of Rhode Island, 345 U.S. 67, 69, 73 S. Ct. 526, 527, 97 L. Ed. 828
(1953), a minister of Jehovah's Witnesses was convicted in the state court for violation of
a municipal ordinance prohibiting the addressing of a religious meeting in a public park.
The evidence showed that the ordinance had not been construed to prohibit church
services of Catholics and Protestants. The court set aside the conviction, saying:
"For it plainly shows that a religious service of Jehovah's Witnesses is treated differently
than a religious service of other sects. That amounts to the state preferring some religious
groups over this one."
We are well aware of the ever continuing debates that have been taking place in this
country for many years as to the meaning which should be given to the First Amendment.
There are those who contend that our forefathers never intended to erect a "wall of
separation" between Church and State. On the other hand, there are those who insist
upon this absolute separation between Church and State. The plaudits and the criticisms
of the various majority, concurring, and dissenting opinions rendered by the United States
Supreme Court in Everson v. Board of Education, supra, 330 U.S. 1, 67 S. Ct. 504, 91 L.
Ed. 711; People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203,
68 S. Ct. 461, 92 L. Ed. 648 (1948), and Zorach v. Clauson, supra, 343 U.S. 306, 72 S.
Ct. 679, 96 L. Ed. 954, still continue.
But regardless of what our views on this fundamental question may be, our decision in this
case must be based upon the undoubted doctrine of both the Federal Constitution and our
New Jersey Constitution, that the state or any instrumentality thereof cannot under any
circumstances show a preference for one religion over another. Such favoritism cannot be
tolerated and must be disapproved as a clear violation of the Bill of Rights of our
Constitutions.
*46 This brings us to the heart of our problem here namely, whether the resolution of the
board of education displays that favoritism that is repugnant to our Constitutions. By
permitting the distribution of the Gideon Bible, has the board of education established one
religious sect in preference to another? Although as to the Catholic plaintiff this action has
become moot due to the withdrawal of his child from the public schools of Rutherford,
some testimony was presented at the trial as to his claim of sectarianism so we will at
times refer to such testimony in our opinion. Our decision, however, is based upon the
claim of the Jewish plaintiff that the resolution of the Rutherford Board of Education
constitutes a preference of one religion over the Hebrew faith.
31 | P a g e
A review of the testimony at the trial convinces us that the King James version or Gideon
Bible is unacceptable to those of the Jewish faith. In this regard Rabbi Joachim Prinz
testified:
"The New Testament is in profound conflict with the basic principles of Judaism. It is not
accepted by the Jewish people as a sacred book. The Bible of the Jewish people is the Old
Testament. The New Testament is not recognized as part of the Bible. The teachings of the
New Testament are in complete and profound conflict with what Judaism teaches. It
presupposes the concept of Jesus of Nazareth as a divinity, a concept which we do not
accept."
"They are in complete and utter conflict with what we teach, for we teach the oneness of
God, which to our and in accordance with our belief, excludes the existence of a Son of
God. We accept Jesus of Nazareth as one of the figures of Jewish history, a Jew born, a
Jew, died as a Jew, but we do not accept Jesus of Nazareth as the Christ. * * *
No, it is certainly not a nonsectarian book. It is a book that is expresses the view of one
denomination among the many religious denominations of the world."
Dr. Bernard J. Bamberger, rabbi of the West End Synagogue in New York City and former
president of the Synagogue Council of America, stated:
"Well, the New Testament, of course, is itself a complex document which contains a great
many different writings, and so forth. Some of the passages and some of those writings
are in themselves *47 not necessarily in conflict with Judaism, but a very great many of
them are in conflict with Judaism, first, because they teach certain doctrines which are
contradictory to doctrines taught by Judaism, and also because in certain passages the
New Testament writers directly attack certain Jewish beliefs which are very sacred to
Jews."
He concluded that the King James Version was "completely not a nonsectarian book."
Rabbi Irving Schnipper, in answer to a question whether the teachings of the New
Testament are in conflict with his teaching of the children of the plaintiff Bernard Tudor,
testified:
"Definitely, the New Testament itself is in direct opposition to the teachings of Judaism."
Nor is there any doubt that the King James version of the Bible is as unacceptable to
Catholics as the Douay version is to Protestants. According to the testimony in this case
the canon law of the Catholic Church provides that "Editions of the original test of the
sacred scriptures published by non-Catholics are forbidden ipso jure."
The defendant refers us to various statements by legal scholars and others to show that
the Bible is not sectarian, but rather is the universal book of the Christian world, but in
many of these statements the question of the New Testament was not discussed. In
Doremus v. Board of Education of Borough of Hawthorne, 5 N.J. 435 (1950), appeal
dismissed 342 U.S. 429, 72 S. Ct. 394, 96 L. Ed. 475 (1952), relied on by the defendant,
the issue was whether R.S. 18:14-77 and 78, providing for compulsory reading in the
public schools of five verses of the Old Testament and permissive reading of the Lord's
Prayer violated the Federal Constitution. In upholding the constitutionality of the statutes
we specifically stated 5 N.J., at page 453:
"We consider that the Old Testament and the Lord's Prayer, pronounced without comment,
are not sectarian, and that the short exercise provided by the statute does not constitute
sectarian instruction or sectarian worship * * *." *48 We adhere to the Doremus case, but
its holding does not apply here, where clearly the issue of sectarianism is present. Here
the issue is the distribution of the New Testament. The uncontradicted evidence presented
by the plaintiff reveals that as far as the Jewish faith is concerned, the Gideon Bible is a
sectarian book, the teachings of which are in conflict with the doctrines of his religion as
well as that of his child, who is a pupil in the Rutherford public school. The full force of the
violation of both the State and Federal Constitutions is revealed when we perceive what
might happen if a single school board were besieged by three separate applications for the
distribution of Bibles one from Protestants as here, another from Catholics for the
distribution of the Douay Bible, and a third from Jews for the same privilege for their Bible.
We find from the evidence presented in this case that the Gideon Bible is a sectarian book,
and that the resolution of the defendant board of education to permit its distribution
through the public school system of the Borough of Rutherford was in violation of the First
Amendment of the United States Constitution, as incorporated into the Fourteenth
Amendment, and of Article I, paragraph 4, of the New Jersey Constitution. It therefore
must be set aside.
V.The defendant contends that the distribution of the Gideon Bible in no way injects any
issue of the "free exercise" of religion, that "no one is forced to take a New Testament and
no religious exercise or instrument is brought to the classrooms of the public schools." In
other words, it asserts the arguments of Zorach v. Clauson, supra, 343 U.S. 306, 315, 72
S. Ct. 679, 96 L. Ed. 954, that the "accommodation" of religion is permissible. This
argument, however, ignores the realities of life. In his concurring opinion joined in by
three other members of the Court, Mr. Justice Frankfurter stated in People of State of
Illinois *49 ex rel. McCollum v. Board of Education, supra, 333 U.S. 203, 227, 68 S. Ct.
461, 473, 92 L.Ed. 648:
"Religious education so conducted on school time and property is patently woven into the
working scheme of the school. The Champaign arrangement thus presents powerful
elements of inherent pressure by the school system in the interests of religious sects. The
fact that this power has not been used to discriminate is beside the point. Separation is a
requirement to abstain from fusing functions of Government and of religious sects, not
merely to treat them all equally. That a child is offered an alternative may reduce the
constraint; it does not eliminate the operation of influence by the school in matters sacred
to conscience and outside the school's domain. The law of imitation operates, and non-
conformity is not an outstanding characteristic of children. The result is an obvious
pressure upon children to attend. Again, while the Champaign school population
represents only a fraction of the more than two hundred and fifty sects of the nation, not
even all the practicing sects in Champaign are willing or able to provide religious
32 | P a g e
instruction. The children belonging to these non-participating sects will thus have
inculcated in them a feeling of separatism when the school should be the training ground
for habits of community, or they will have religious instruction in a faith which is not that
of their parents. As a result, the public school system of Champaign actively furthers
inculcation in the religious tenets of some faiths, and in the process sharpens the
consciousness of religious differences at least among some of the children committed to its
care. These are consequences not amenable to statistics. But they are precisely the
consequences against which the Constitution was directed when it prohibited the
Government common to all from becoming embroiled, however innocently, in the
destructive religious conflicts of which the history of even this country records some dark
pages."
In State ex rel. Weiss v. District Board, 76 Wis. 177, 44 N.W. 967, 7 L.R.A. 330 (Sup.Ct.
1890), it was stated:
"When * * * a small minority of the pupils in the public school is excluded, for any cause,
from a stated school exercise, particularly when such cause is apparent hostility to the
Bible which a majority of the pupils have been taught to revere, from that moment the
excluded pupil loses caste with his fellows, and is liable to be regarded with aversion, and
subjected to reproach and insult. But it is a sufficient refutation of the argument that the
practice in question tends to destroy the equality of the pupils which the constitution seeks
to establish and protect, and puts a portion of them to serious disadvantage in many ways
with respect to the others." (at 44 N.W. 975)
*50 Professor Isidore Chein, Supervisor of Psychology and Acting Director of the Research
Center for Mental Health at New York University, testified on behalf of the plaintiff:
"* * * I would expect that a slip of this kind, distributed under the authority of the school,
would create a subtle pressure on the child which would leave him with a sense that he is
not quite as free as the statement on that slip says; in other words, that he will be
something of an outcast and a pariah if he does not go along with this procedure."
"* * * I think that they would be in a situation where they have to play along with this or
else feel themselves to be putting themselves in a public position where they are different,
where they are not the same as other people, and the whole pressure would exist on them
to conform."
Dr. Dan Dodson, professor in the School of Education of New York University and director
of curriculum and research in the Center for Human Relations Studies, when questioned as
to the divisive effect of the distribution of the Gideon Bible stated:
"I would say that any instance of this kind in which the * * * a document that has the
importance that this has to certain religious groups, including my own, would be
distributed or used as a means of propaganda or indoctrination by official channels, such
as the school system, would create tensions among the religious groups; there would be a
controversial problem."
"I would say that it would raise questions among the children as to who is and who isn't,
in terms of receiving the Bible. It would also create problems as to why some accepted it
and others didn't. That would be divisive."
See also People ex rel. Ring v. Board of Education, 245 Ill. 334, 92 N.E. 251, 29 L.R.A.,
N.S. 442 (Sup. Ct. 1910), where the court maintained that the fact that pupils could
request to be excused from religious exercises did not make the requirement of sectarian
Bible reading constitutional, and Miller v. Cooper, 56 N.M. 355, 244 P.2d 520 (Sup.Ct.
1952), where the plaintiffs brought an action seeking, among other things, an injunction
against the dissemination of allegedly sectarian literature among the public school pupils
in violation of the provisions of the Federal *51 and State Constitutions. The court there
granted this relief, saying:
"The charge [that] the defendants were using the school as a medium for the
dissemination of religious pamphlets published by the Presbyterian Church presents a
different situation. It is true that the teachers did not hand them to the pupils or instruct
that they be taken or read. The pamphlets were, however, kept in plain sight in a school
room and were available to the pupils and the supply was evidently replenished from time
to time. We condemned such practice in Zellers v. Huff, supra, and condemn it here and
hold [that] the trial court was in error when it failed to enjoin such acts * * *." (at 244
P.2d 521)
We cannot accept the argument that here, as in the Zorach case, supra, the State is
merely "accommodating" religion. It matters little whether the teachers themselves will
distribute the Bibles or whether that will be done by members of the Gideons
International. The same vice exists, that of preference of one religion over another. This is
all the more obvious when we realize the motive of the Gideons. Its purpose is "to win
men and women for the Lord Jesus Christ, through * * * (c) placing the Bible God's Holy
Word * * * or portions thereof in hotels, hospitals, schools, institutions, and also through
distribution of same for personal use." The society is engaged in missionary work,
accomplished in part by placing the King James version of the Bible in the hands of public
school children throughout the United States. To achieve this end it employs the public
school system as the medium of distribution. It is at the school that the pupil receives the
request slip to take to his parents for signature. It is at the school that the pupil actually
receives his Gideon Bible. In other words, the public school machinery is used to bring
about the distribution of these Bibles to the children of Rutherford. In the eyes of the
pupils and their parents the board of education has placed its stamp of approval upon this
distribution and, in fact, upon the Gideon Bible itself. Dr. Dodson further testified:
"I would say it would leave a lefthanded implication that the school thought this was
preferential in terms of what is the divine *52 word, and that the backing of the State
would inevitably be interpreted as being behind it."
Dr. William Heard Kilpatrick stated:
"The Protestants would feel that the school is getting behind this thing; the Catholics
would feel that the school is getting behind a Protestant affair; the Jews would feel that
33 | P a g e
the school is getting behind the Protestant religion as opposed to their religion; and the
people who don't accept any religion would feel that the school is actually trying to teach
the religion through this means."
This is more than mere "accommodation" of religion permitted in the Zorach case. The
school's part in this distribution is an active one and cannot be sustained on the basis of a
mere assistance to religion.
We are here concerned with a vital question involving the very foundation of our
civilization. Centuries ago our forefathers fought and died for the principles now contained
in the Bill of Rights of the Federal and New Jersey Constitutions. It is our solemn duty to
preserve these rights and to prohibit any encroachment upon them. To permit the
distribution of the King James version of the Bible in the public schools of this State would
be to cast aside all the progress made in the United States and throughout New Jersey in
the field of religious toleration and freedom. We would be renewing the ancient struggles
among the various religious faiths to the detriment of all. This we must decline to do.
The judgment below is reversed and the resolution of the Board of Education of the
Borough of Rutherford under review is stricken.
For reversal Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD,
BURLING, JACOBS and BRENNAN 7.
For affirmance None.
U.S. Supreme Court
Zorach v. Clauson, 343 U.S. 306 (1952)
Zorach v. Clauson
No. 431
Argued January 31
February 1, 1952
Decided April 28, 1952
343 U.S. 306
Syllabus
Under § 3210 of the New York Education Law and the regulations thereunder, New York
City permits its public schools to release students during school hours, on written requests
of their parents, so that they may leave the school buildings and grounds and go to
religious centers for religious instruction or devotional exercises. The same section makes
school attendance compulsory; students not released stay in the classrooms, and the
churches report to the schools the names of children released from public schools who fail
to report for religious instruction. The program involves neither religious instruction in
public schools nor the expenditure of public funds.
Held: This program does not violate the First Amendment, made applicable to the States
by the Fourteenth Amendment. McCollum v. Board of Education, 333 U. S. 203,
distinguished. Pp. 343 U. S. 308-315.
(a) By this system, New York has neither prohibited the "free exercise" of religion nor
made a law "respecting an establishment of religion" within the meaning of the First
Amendment. Pp. 343 U. S. 310-315.
(b) There is no evidence in the record in this case to support a conclusion that the system
involves the use of coercion to get public school students into religious classrooms.
Pp. 343 U. S. 311-312.
303 N.Y. 161, 100 N.E.2d 463, affirmed.
The New York Court of Appeals sustained N.Y. Education Law § 3210 and the regulations
thereunder permitting absence of students from the public schools for religious observance
and education, against the claim that the program thereunder violated the Federal
Constitution. 303 N.Y. 161, 100 N.E.2d 463. On appeal to this Court, affirmed, p. 343 U.
S. 315.
Page 343 U. S. 308
U.S. Supreme Court
Board of Education v. Allen, 392 U.S. 236 (1968)
Board of Education v. Allen
No. 660
Argued April 22, 1968
Decided June 10, 1968
392 U.S. 236
Syllabus
New York's Education Law requires local public school authorities to lend textbooks free of
charge to all students in grades seven to 12, including those in private schools. Appellant
school boards sought a declaration that the statutory requirement was invalid as violative
of the State and Federal Constitutions, an order barring appellee Commissioner of
Education from removing appellants' members from office for failing to comply with it, and
an order preventing the use of state funds for the purchase of textbooks to be lent to
parochial students. The trial court held the law unconstitutional under the First and
Fourteenth Amendments and entered summary judgment for appellants on the pleadings;
the Appellate Division reversed and ordered the complaint dismissed since appellant
school boards had no standing to attack the statute, and the New York Court of Appeals
held that appellants did have standing, but that the statute did not violate the State or
Federal Constitution. The Court of Appeals said that the law was to benefit all school
children, without regard to the type of school attended, that only textbooks approved by
school authorities could be loaned, and therefore the statute was "completely neutral with
respect to religion."
Held: The statute does not violate the Establishment or the Free Exercise Clause of the
First Amendment. Pp.392 U. S. 241-249.
34 | P a g e
(1) The express purpose of the statute was the furtherance of educational opportunities
for the young, and the law merely makes available to all children the benefits of a general
program to lend school books free of charge, and the financial benefit is to parents and
children, not to schools. Everson v. Board of Education, 330 U. S. 1. Pp. 392 U. S. 243-
244.
(2) There is no evidence that religious books have been loaned, and it cannot be assumed
that school authorities are unable to distinguish between secular and religious books, or
that they will not honestly discharge their duties to approve only secular books. Pp. 392 U.
S. 244-245.
Page 392 U. S. 237
(3) Parochial schools, in addition to their sectarian function, perform the task of secular
education, and, on the basis of this meager record, the Court cannot agree with appellants
that all teaching in a sectarian school is religious, or that the intertwining of secular and
religious training is such that secular textbooks furnished to students are, in fact,
instrumental in teaching religion. Pp. 392 U. S. 245-248.
(4) In the absence of specific evidence, and based solely on judicial notice, it cannot be
concluded that the statute results in unconstitutional state involvement with religious
instruction or violates the Establishment Clause. P. 392 U. S. 248.
(5) Since appellants have not shown that the law coerces them in any way in the practice
of religion, there is no violation of the Free Exercise Clause. Pp. 392 U. S. 248-249.
20 N.Y.2d 109, 228 N.E.2d 791, affirmed.
Page 392 U. S. 238
G.R. No. L-53487 May 25, 1981
ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEÑA, NICETAS DAGAR
and JESUS EDULLANTES, petitioners,
vs.
Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First Instance of
Leyte, Ormoc City Branch V, BARANGAY COUNCIL of Valencia, Ormoc City,
Barangay Captain MANUEL C. VELOSO, Councilmen GAUDENCIO LAVEZARES,
TOMAS CABATINGAN and MAXIMINO NAVARRO, Barangay Secretary CONCHITA
MARAYA and Barangay Treasurer LUCENA BALTAZAR, respondents.
AQUINO, J.
This case is about the constitutionality of four resolutions of the barangay council of
Valencia, Ormoc City, regarding the acquisition of the wooden image of San Vicente Ferrer
to be used in the celebration of his annual feast day. That issue was spawned by the
controversy as to whether the parish priest or a layman should have the custody of the
image.
On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving the
traditional socio-religious celebration" every fifth day of April "of the feast day of Señor
San Vicente Ferrer, the patron saint of Valencia".
That resolution designated the members of nine committees who would take charge of the
1976 festivity. lt provided for (1) the acquisition of the image of San Vicente Ferrer and
(2) the construction of a waiting shed as the barangay's projects. Funds for the two
projects would be obtained through the selling of tickets and cash donations " (Exh A or
6).
On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in
accordance with the practice in Eastern Leyte, Councilman Tomas Cabatingan, the
Chairman or hermano mayor of the fiesta, would be the caretaker of the image of San
Vicente Ferrer and that the image would remain in his residence for one year and until the
election of his successor as chairman of the next feast day.
It was further provided in the resolution that the image would be made available to the
Catholic parish church during the celebration of the saint's feast day (Exh. B or 7).
Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by the
barangay general assembly on March 26, 1976. Two hundred seventy-two voters ratified
the two resolutions (Exh. 2 and 5).
Funds were raised by means of solicitations0 and cash donations of the barangay residents
and those of the neighboring places of Valencia. With those funds, the waiting shed was
constructed and the wooden image of San Vicente Ferrer was acquired in Cebu City by the
barangay council for four hundred pesos (Exh. F-l, 3 and 4).
On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of
Barangay Valencia so that the devotees could worship the saint during the mass for the
fiesta.
A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmeña
refused to return that image to the barangay council on the pretext that it was the
property of the church because church funds were used for its acquisition.
Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a
mass, Father Osmeña allegedly uttered defamatory remarks against the barangay captain,
Manuel C. Veloso, apparently in connection with the disputed image. That incident
35 | P a g e
provoked Veloso to file against Father Osmeña in the city court of Ormoc City a charge for
grave oral defamation.
Father Osmeña retaliated by filing administrative complaints against Veloso with the city
mayor's office and the Department of Local Government and Community Development on
the grounds of immorality, grave abuse of authority, acts unbecoming a public official and
ignorance of the law.
Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia.
Because Father Osmeña did not accede to the request of Cabatingan to have custody of
the image and "maliciously ignored" the council's Resolution No. 6, the council enacted on
May 12, 1976 Resolution No. 10, authorizing the hiring of a lawyer to file a replevin case
against Father Osmeña for the recovery of the image (Exh. C or 8). On June 14, 1976, the
barangay council passed Resolution No. 12, appointing Veloso as its representative in the
replevin case (Exh. D or 9).
The replevin case was filed in the city court of Ormoc City against Father Osmeña and
Bishop Cipriano Urgel (Exh. F). After the barangay council had posted a cash bond of eight
hundred pesos, Father Osmeña turned over the image to the council (p. 10, Rollo). ln his
answer to the complaint for replevin, he assailed the constitutionality of the said
resolutions (Exh. F-1).
Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and
two Catholic laymen, Jesus Edullantes and Nicetas Dagar, filed against the barangay
council and its members (excluding two members) a complaint in the Court of First
Instance at Ormoc City, praying for the annulment of the said resolutions (Civil Case No.
1680-0).
The lower court dismissed the complaint. lt upheld the validity of the resolutions. The
petitioners appealed under Republic Act No. 5440. The petitioners contend that the
barangay council was not duly constituted because lsidoro M. Mañago, Jr., the chairman of
the kabataang barangay, was not allowed to participate in its sessions.
Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86 and 86-
A). Presidential Decree No. 557, which took effect on September 21, 1974, 70 O.G. 8450-
L, directed that all barrios should be known as barangays and adopted the Revised Barrio
Charter as the Barangay Charter.
Barrios are units of municipalities or municipal districts in which they are situated. They
are quasi-municipal corporations endowed with such powers" as are provided by law "for
the performance of particular government functions, to be exercised by and through their
respective barrio governments in conformity with law" (Sec. 2, Revised Barrio Charter,
R.A. No. 3590).
The barrio assembly consists of all persons who are residents of the barrio for at least six
months, eighteen years of age or over and Filipino citizens duly registered in the list kept
by the barrio secretary (Sec. 4, Ibid).
The barrio council, now barangay council, is composed of the barangay captain and six
councilmen (Sec. 7, Ibid). Section 3 of Presidential Decree No. 684, which took effect on
April 15, 1975, provides that "the barangay youth chairman shall be an ex-officio member
of the barangay council", having the same powers and functions as a barangay
councilman.
In this case, Mañago, the barangay youth chairman, was notified of the sessions of the
barangay council to be held on March 23 and 26, 1976 but he was not able to attend those
sessions because he was working with a construction company based at Ipil, Ormoc City
(Par. 2[d] Exh. 1).
Mañago's absence from the sessions of the barangay council did not render the said
resolutions void. There was a quorum when the said resolutions were passed.
The other contention of the petitioners is that the resolutions contravene the constitutional
provisions that "no law shall be made respecting an establishment of religion" and that "no
public money or property shall ever be appropriated, applied, paid, or used, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or for the use, benefit, or support of any priest, preacher,
minister, or other religious teacher or dignitary as such. except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium (Sec. 8, Article IV and sec. 18[2],
Article VIII, Constitution).
That contention is glaringly devoid of merit. The questioned resolutions do not directly or
indirectly establish any religion, nor abridge religious liberty, nor appropriate public money
or property for the benefit of any sect, priest or clergyman. The image was purchased with
private funds, not with tax money. The construction of a waiting shed is entirely a secular
matter.
Manifestly puerile and flimsy is Petitioners argument that the barangay council favored the
Catholic religion by using the funds raised by solicitations and donations for the purchase
of the patron saint's wooden image and making the image available to the Catholic church.
The preposterousness of that argument is rendered more evident by the fact that counsel
advanced that argument in behalf of the petitioner, Father Osmeña the parish priest.
The wooden image was purchased in connection with the celebration of the barrio fiesta
honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any
religion nor interfering with religious matters or the religious beliefs of the barrio
residents. One of the highlights of the fiesta was the mass. Consequently, the image of the
patron saint had to be placed in the church when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint
for the barrio, then any activity intended to facilitate the worship of the patron saint (such
as the acquisition and display of his image) cannot be branded as illegal.
36 | P a g e
As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its celebration is
an ingrained tradition in rural communities. The fiesta relieves the monotony and drudgery
of the lives of the masses.
The barangay council designated a layman as the custodian of the wooden image in order
to forestall any suspicion that it is favoring the Catholic church. A more practical reason for
that arrangement would be that the image, if placed in a layman's custody, could easily be
made available to any family desiring to borrow the image in connection with prayers and
novenas.
The contradictory positions of the petitioners are shown in their affidavits. Petitioner
Garces swore that the said resolutions favored the Catholic church. On the other hand,
petitioners Dagar and Edullantes swore that the resolutions prejudiced the
Catholics because they could see the image in the church only once a year or during the
fiesta (Exh. H and J).
We find that the momentous issues of separation of church and state, freedom of religion
annd the use of public money to favor any sect or church are not involved at all in this
case even remotely or indirectly. lt is not a microcosmic test case on those issues.
This case is a petty quarrel over the custody of a saint's image. lt would never have arisen
if the parties had been more diplomatic and tactful and if Father Osmeña had taken the
trouble of causing contributions to be solicited from his own parishioners for the purchase
of another image of San Vicente Ferrer to be installed in his church.
There can be no question that the image in question belongs to the barangay council.
Father Osmeña claim that it belongs to his church is wrong. The barangay council, as
owner of the image, has the right to determine who should have custody thereof.
If it chooses to change its mind and decides to give the image to the Catholic church. that
action would not violate the Constitution because the image was acquired with private
funds and is its private property.
The council has the right to take measures to recover possession of the image by enacting
Resolutions Nos. 10 and 12.
Not every governmental activity which involves the expenditure of public funds and which
has some religious tint is violative of the constitutional provisions regarding separation of
church and state, freedom of worship and banning the use of public money or property.
In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which appropriated
sixty thousand pesos for the cost of plates and the printing of postage stamps with new
designs. Under the law, the Director of Posts, with the approval of the Department Head
and the President of the Philippines, issued in 1936 postage stamps to commemorate the
celebration in Manila of the 33rd International Eucharistic Congress sponsored by the
Catholic Church.
The purpose of the stamps was to raise revenue and advertise the Philippines. The design
of the stamps showed a map of the Philippines and nothing about the Catholic Church. No
religious purpose was intended.
Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent Church,
sought to enjoin the sale of those commemorative postage stamps.
It was held that the issuance of the stamps, while linked inseparably with an event of a
religious character, was not designed as a propaganda for the Catholic Church. Aglipay's
prohibition suit was dismissed.
The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil., 627 and 55
Phil. 307, where a religious brotherhood, La Archicofradia del Santisimo Sacramento,
organized for the purpose of raising funds to meet the expenses for the annual fiesta in
honor of the Most Holy Sacrament and the Virgin Lady of Guadalupe, was held accountable
for the funds which it held as trustee. 0
Finding that the petitioners have no cause of action for the annulment of the barangay
resolutions, the lower court's judgment dismissing their amended petition is affirmed. No
costs.
SO ORDERED.
GONZALEZ v. ROMAN CATHOLIC ARCHBISHOP OF MANILA(1929)
Mr. Justice BRANDEIS delivered the opinion of the Court.
This case is here on certiorari to the Supreme Court of the Philippine Islands. 278 U.S. 588
, 49 S. Ct. 17. The subject-matter is a collative chaplaincy in the Roman Catholic
Archdiocese of Manila, which has been vacant since December 1910.1 The main questions
for decision are whether the petitioner is legally entitled to be appointed the chaplain, and
whether he shall recover the surplus income accrued during the vacancy.
Raul Rogerio Gonzalez, by his guardian ad litem, brought the suit against the archbishop
in the court of [280 U.S. 1, 11] first instance of Manila, on August 5, 1924. He prayed for
judgment declaring the petitioner the lawful heir to the chaplaincy and its income;
establishing the right of the petitioner and his successors to be appointed to and receive
the income of the chaplaincy during their infancy whenever it may be vacant and, pending
such appointment, to receive the income for their maintenance and support; declaring the
trust character of the property and ordering it to be so recorded; directing the archbishop
to appoint the petitioner chaplain and to account to him for the income of the property
from 1910 on; and directing the defendant to pay the petitioner 1,000 pesos a month
pending the final determination of the case. The trial court directed the archbishop to
appoint the petitioner chaplain; and ordered payment to him of 173,725 pesos
($86,862.50), that sum being the aggregate net income of the chaplaincy during the
vacancy, less the expense of having the prescribed masses celebrated in each year. It
37 | P a g e
reserved to the petitioner any legal right he may have to proceed in the proper court for
cancellation of the certificate of registration of the property in the name of the archbishop.
The Supreme Court of the Philippine Islands reversed the judgment on February 4, 1928,
and absolved the archbishop from the complaint, 'without prejudice to the right of proper
persons in interest to proceed for independent relief,' in respect to the income accrued
during the vacancy, or in respect to the reformation of the certificate of registration so as
to show the fiduciary character of the title. As the amount in controversy exceeds
$25,000, this court has jurisdiction on certiorari. Act Feb. 13, 1925, c. 229, 7, 43 Stat.
936, 940 (28 USCA 349).
The chaplaincy was founded in 1820, under the will of Don a Petronila de Guzman. By it,
she requested 'the father chaplain to celebrate sixty masses annually' in behalf of the
souls of her parents, brothers, sisters, and [280 U.S. 1, 12] herself. The deed of
foundation, which was executed by the testamentary executor of Don a Petronila, provided
that 'said property is segregated from temporal properties and transferred to the spiritual
properties of this archbishopric, without its being possible to alienate or convert the
property as such into any other estate for any cause, even though it be of a more pious
character, ... so that by virtue of this deed of foundation canonical collation may be
conferred on the said appointed chaplain.' By appropriate proceedings an ecclesiastical
decree approved 'the foundation of the chaplaincy with all the circumstances and
conditions provided for in said clause (of the wall) and in the deed of said clause (of the
will) and in the deed of of seventeen hundred pesos against said building, converting said
sum into spiritual property of a perpetual character subject to the ecclesiastical forum and
jurisdiction.'
The will provided that the foundation should effect the immediate appointment as chaplain
of D. Esteban de Guzman, the great-grandson of the testatrix, and 'in his default the
nearest relative, and in default of the latter a collegian (colegial) of San Juan de Letran,
who should be an orphan mestizo, native of this said town.' It named the president of that
college as the patron of the chaplaincy. Esteban was appointed chaplain in 1820. From
time to time thereafter four other descendants of the testatrix were successively
appointed. The latest of these renounced the chaplaincy in December, 1910, married soon
thereafter, and in 1912 became the father of the petitioner, Raul Rogerio Gonzalez, who is
a legitimate son of the fifth chaplain, and claims to be the nearest relative in descent from
the first chaplain and the foundress.
Raul was presented to the archbishop for appointment in 1922. The archbishop refused to
appoint him, on the ground that he did not then have 'the qualifications required for
chaplain of the said chaplaincy.' He added: [280 U.S. 1, 13] 'The grounds of my
conclusion are the very canons of the new Code of Canon Law. Among others, I can
mention canon 1442, which says: 'Simple chaplaincies or benefices are conferred upon
clergymen of the secular clergy,' in connection with canon 108, paragraph 1, 'Clergymen
are those already initiated in the first tonsure,' and canon 976, paragraph 1, 'No one can
be promoted to first tonsure before he has begun the course in theology.' In view of the
canon as above mentioned, and other reasons which may be adduced, I believe that the
boy, Raul Gonzalez, is not legally (ecclesiastically speaking) capacitated to the enjoyment
of a chaplaincy.'
Ever since the Council of Trent (1545-1563), it has been the law of the church that no one
can be appointed to a collative chaplaincy before his fourteenth year. When Raul was
presented for appointment, he was in his tenth year. He was less than 12 when this suit
was begun. He was 14 when the trial court entered its judgment. It is also urged on behalf
of the archbishop that at no time since that Council could one be lawfully appointed who
lacked elementary knowledge of Christian doctrine.
The new Codex Juris Canonici, which was adopted in Rome in 1917 and was promulgated
by the church, to become effective in 1918, provides that no one shall be appointed to a
collative chaplaincy who is not a cleric. Canon 1442. It requires students for the
priesthood to attend a seminary; and prescribes their studies. Canons 1354, 1364. It
provides that in order to be a cleric one must have had 'prima tonsura' (Canon 108, par.
1); that in order to have 'prima tonsura' one must have begun the study of theology (
Canon 976, par. 1); and that in order to study theology one must be a 'bachiller'-that is,
must have obtained the first degree in the sciences and liberal arts (Canon 1365). It also
provides that no one may validly receive ordination, unless in the opinion of the ordinary
he [280 U.S. 1, 14] has the necessary qualifications. Canon 968, par. 1, 1464. Petitioner
concedes that the chaplaincy here involved is a collative one, and that Raul lacked, at the
time of his presentment and of the commencement of the suit, the age qualification
required by the canon law in force when the chaplaincy was founded. 2 It is also conceded
that he lacked, then and at the time of the entry of the judgment, other qualifications of a
candidate for a collative chaplaincy essential, if the new Codex was applicable.
Raul's contention, in effect, is that the nearest male relative in descent from the foundress
and the first chaplain, willing to be appointed chaplain, is entitled to enjoy the revenues of
the foundation, subject only to the duty of saying himself the sixty masses in each year, if
he is qualified so to do, or of causing them to be said by a qualified priest and paying the
customary charge therefor out of the income. He claims that the provisions of the new
Codex are not applicable, and that his rights are to be determined by the canon law in
force at the time the chaplaincy was founded, and that the judgment of the trial court
should be reinstated, because he possessed at the time of the entry of the judgment all
the qualifications required by the canon law in force in 1820. Raul argues that
contemporaneous construction and long usage have removed any doubt as to what these
qualifications were; that when the foundation was established, and for a long time
thereafter, the ecclesiastical character of the incumbent was a minor consideration; that
this is shown by the administration of this chaplaincy; and that his own ecclesiastical
qualifications, at the time of the entry of the [280 U.S. 1, 15] judgment in the trial court,
were not inferior to those of the prior incumbents. He asserts that, although chaplaincies
were disamortized in Spain prior to 1867 (Alcubilla, Diccionario, Vol. II, p. 118), they had
in the Philippines remained undisturbed by any legislation of Spain, and that the rights of
the church were preserved by article 8, of the Treaty of Paris. 30 Stat. 1754, 1758; Ponce
v. Roman Catholic Church, 210 U.S. 296 , 315-322, 28 S. Ct. 737. He contends that to
deprive him of his alleged right to the chaplaincy because of a change made in 1918 in the
canon law would violate the Constitution of the United States, the Treaty with Spain of
1898, and the Organic Act of the Philippine Islands ( 32 Stat. 691).
The trial court rested its judgment for Raul largely on the ground that he possessed, at the
time of its entry, the qualifications required by the canon law in force when the chaplaincy
38 | P a g e
was founded, and that, hence, he was entitled both to be appointed chaplain and to
recover the income accrued during the vacancy, even though he did not possess the
qualifications prescribed by the new Codex then otherwise in force. The Supreme Court
held that to give effect to the provisions of the new Codex would not impair the obligation
of the contract made in 1820, as it was an implied term of the deed of foundation that the
qualifications of a chaplain should be such as the church authorities might prescribe from
time to time, and that, since Raul confessedly did not possess the qualifications prescribed
by the new Codex which had been promulgated before he was presented, he could not be
appointed.
First. The archbishop interposes here, as he did below, an objection to the jurisdiction of
the Philippine courts. He insists that, since the chaplaincy is confessedly a collative one, its
property became spiritual property of a perpetual character subject to the jurisdiction of
the ec- [280 U.S. 1, 16] clesiastical forum, and that thereby every controversy
concerning either the right to appointment or the right to the income was removed from
the jurisdiction of secular courts. The objection is not sound. The courts have jurisdiction
of the parties. For the archbishop is a juristic person amenable to the Philippine courts for
the enforcement of any legal right; and the petitioner asserts such a right. There is
jurisdiction of the subject-matter; for the petitioner's claim is, in substance, that he is
entitled to the relief sought as the beneficiary of a trust.
The fact that the property of the chaplaincy was transferred to the spiritual properties of
the archbishopric affects not the jurisdiction of the court, but the terms of the trust.
Watson v. Jones, 13 Wall. 679, 714, 729. The archbishop's claim in this respect is that by
an implied term of the gift, the property, which was to be held by the church, should be
administered in such manner and by such persons as may be prescribed by the church
from time to time. Among the church's laws, which are thus claimed to be applicable, are
those creating tribunals for the determination of ecclesiastical controversies. Because the
appointment is a canonical act, it is the function of the church authorities to determine
what the essential qualifications of a chaplain are and whether the candidate possesses
them. In the absence of fraud, collusion, or arbitrariness, the decisions of the proper
church tribunals on matters purely ecclesiastical, although affecting civil rights, are
accepted in litigation before the secular courts as conclusive, because the parties in
interest made them so by contract or otherwise. 3 Under like circumstances, effect is
given in the courts to the determinations [280 U.S. 1, 17] of the judicatory bodies
established by clubs and civil associations. 4
Second. The archbishop contended that Raul lacked even the minimum of training and
knowledge of Christian doctrine made indispensable by the canon law in force in 1820;
that his confessed lack of the essential age at the time of the presentment and also at the
time of the institution of the suit were insurmountable obstacles to the granting of the
prayer for appointment to the chaplaincy; and, moreover, that the failure to take an
appeal to the Pope from the decision of the archbishop, as provided by the canon law,
precluded resort to legal proceedings. We have no occasion to consider the soundness of
these contentions. For we are of opinion that the canon law in force at the time of the
presentation governs, and the lack of the qualification prescribed by it is admitted. Neither
the foundress, nor the church authorities, can have intended that the perpetual chaplaincy
created in 1820 should, in respect to the qualifications of an incumbent, be forever
administered according to the canons of the church which happened to be in force at that
date. The parties to the foundation clearly contemplated that the archbishop would, before
ordination, exercise his judgment as to the fitness of the applicant; and they must have
contemplated that, in the course of the centuries, the standard of fitness would be
modified.
When the new Codex was promulgated in 1918, Raul was only six years old and had not
yet been presented. If he had been presented, he obviously could not have been
appointed. No right was then being enjoyed by him [280 U.S. 1, 18] of which the
promulgation of the new Codex deprived him. When he was presented later, he was
ineligible under the then existing canon law. In concluding that Raul lacked the
qualifications essential for a chaplain the archbishop appears to have followed the
controlling canon law. There is not even a suggestion that he exercised his authority
arbitrarily.
Third. Raul urges that, even though he is not entitled to be appointed chaplain, he is
entitled to recover the surplus net income earned during the vacancy. Indeed, it is the
property rights involved that appear to be his main consideration. The value of the
property in 1820 was about 1,700 pesos. The annual net income was then 180 pesos, a
sum sufficient only to defray the annual expense of 60 masses. The annual net income has
grown to about 12,000 pesos, and the annual expense of the 60 masses does not now
exceed 300 pesos. In each year during the vacancy the masses have been duly
celebrated. The surplus income accruing during the vacancy has been used by the
archbishop currently for pious purposes, namely, education. By canon 1481 of the new
Codex, the surplus income of a chaplaincy, after deducting expenses of the acting
chaplain, must one-half be added to the endowment or capital and one-half to the repair
of the church, unless there is a custom of using the whole for some common good to the
diocese. The use made of the surplus of this chaplaincy was in accordance with what was
claimed to be the long established custom of the archdiocese. Both the custom and the
specific application made of this surplus have been approved by the Holy See. The
Supreme Court held that, since Raul had sought the income only as an incident of the
chaplaincy, he could not recover anything.
Raul's claim, which is made even in respect to income accrued prior to his birth, is rested
upon some alleged right by inheritance, although his father is still living. [280 U.S. 1,
19] The intention of the foundress, so far as expressed, was that the income should be
applied to the celebration of masses and to the living of the chaplain, who should
preferably be the nearest male relative in the line of descent from herself or the first
chaplain. The claim that Raul individually is entitled as nearest relative to the surplus by
inheritance is unsupported by anything in the deed of gift or the applicable law. Since Raul
is not entitled to be appointed chaplain, he is not entitled to a living from the income of
the chaplaincy.
Raul urges also an alleged right as representative of the heirs of the testatrix as a class.
This suggestion was, we think, properly met by the ruling of the Supreme Court that the
suit was not brought as a class suit. Whether the surplus income earned during the
vacancy has been properly disposed of by the archbishop and what disposition shall be
made of it in the future we have no occasion to inquire. The entry of the judgment without
39 | P a g e
prejudice 'to the right of proper persons in interest to proceed for independent relief'
leaves any existing right of that nature unaffected.
Affirmed.
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., Petitioners, vs. JUSTO LUKBAN, ET
AL., Respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which
this application for habeas corpus submits for decision. While hardly to be expected to be
met with in this modern epoch of triumphant democracy, yet, after all, the cause presents
no great difficulty if there is kept in the forefront of our minds the basic principles of
popular government, and if we give expression to the paramount purpose for which the
courts, as an independent power of such a government, were constituted. The primary
question is - Shall the judiciary permit a government of the men instead of a government
of laws to be set up in the Philippine Islands?chanrobles virtual law library
Omitting much extraneous matter, of no moment to these proceedings, but which might
prove profitable reading for other departments of the government, the facts are these:
The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate
vice, ordered the segregated district for women of ill repute, which had been permitted for
a number of years in the city of Manila, closed. Between October 16 and October 25,
1918, the women were kept confined to their houses in the district by the police.
Presumably, during this period, the city authorities quietly perfected arrangements with
the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some
government office for the use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the
police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor
of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170
inmates into patrol wagons, and placed them aboard the steamers that awaited their
arrival. The women were given no opportunity to collect their belongings, and apparently
were under the impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for a life in Mindanao. They
had not been asked if they wished to depart from that region and had neither directly nor
indirectly given their consent to the deportation. The involuntary guests were received on
board the steamers by a representative of the Bureau of Labor and a detachment of
Constabulary soldiers. The two steamers with their unwilling passengers sailed for Davao
during the night of October 25.chanroblesvirtualawlibrary chanrobles virtual law library
The vessels reached their destination at Davao on October 29. The women were landed
and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by
Feliciano Yñigo and Rafael Castillo. The governor and the hacendero Yñigo, who appear as
parties in the case, had no previous notification that the women were prostitutes who had
been expelled from the city of Manila. The further happenings to these women and the
serious charges growing out of alleged ill-treatment are of public interest, but are not
essential to the disposition of this case. Suffice it to say, generally, that some of the
women married, others assumed more or less clandestine relations with men, others went
to work in different capacities, others assumed a life unknown and disappeared, and a
goodly portion found means to return to Manila.chanroblesvirtualawlibrary chanrobles
virtual law library
To turn back in our narrative, just about the time the Corregidor and the Negros were
putting in to Davao, the attorney for the relatives and friends of a considerable number of
the deportees presented an application for habeas corpus to a member of the Supreme
Court. Subsequently, the application, through stipulation of the parties, was made to
include all of the women who were sent away from Manila to Davao and, as the same
questions concerned them all, the application will be considered as including them. The
application set forth the salient facts, which need not be repeated, and alleged that the
women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown
parties. The writ was made returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and
deportation, and prayed that the writ should not be granted because the petitioners were
not proper parties, because the action should have been begun in the Court of First
Instance for Davao, Department of Mindanao and Sulu, because the respondents did not
have any of the women under their custody or control, and because their jurisdiction did
not extend beyond the boundaries of the city of Manila. According to an exhibit attached to
the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on
the haciendas of Yñigo and Governor Sales. In open court, the fiscal admitted, in answer
to question of a member of the court, that these women had been sent out of Manila
without their consent. The court awarded the writ, in an order of November 4, that
directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the
city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yñigo,
an hacenderoof Davao, to bring before the court the persons therein named, alleged to be
deprived of their liberty, on December 2, 1918.chanroblesvirtualawlibrary chanrobles
virtual law library
Before the date mentioned, seven of the women had returned to Manila at their own
expense. On motion of counsel for petitioners, their testimony was taken before the clerk
of the Supreme Court sitting as commissioners. On the day named in the order, December
2nd, 1918, none of the persons in whose behalf the writ was issued were produced in
court by the respondents. It has been shown that three of those who had been able to
come back to Manila through their own efforts, were notified by the police and the secret
service to appear before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when pleading to the original petition
copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao
and the answer thereto, and telegrams that had passed between the Director of Labor and
the attorney for that Bureau then in Davao, and offered certain affidavits showing that the
women were contained with their life in Mindanao and did not wish to return to Manila.
Respondents Sales answered alleging that it was not possible to fulfill the order of the
Supreme Court because the women had never been under his control, because they were
40 | P a g e
at liberty in the Province of Davao, and because they had married or signed contracts as
laborers. Respondent Yñigo answered alleging that he did not have any of the women
under his control and that therefore it was impossible for him to obey the mandate. The
court, after due deliberation, on December 10, 1918, promulgated a second order, which
related that the respondents had not complied with the original order to the satisfaction of
the court nor explained their failure to do so, and therefore directed that those of the
women not in Manila be brought before the court by respondents Lukban, Hohmann,
Sales, and Yñigo on January 13, 1919, unless the women should, in written statements
voluntarily made before the judge of first instance of Davao or the clerk of that court,
renounce the right, or unless the respondents should demonstrate some other legal
motives that made compliance impossible. It was further stated that the question of
whether the respondents were in contempt of court would later be decided and the
reasons for the order announced in the final
decision.chanroblesvirtualawlibrary chanrobles virtual law library
Before January 13, 1919, further testimony including that of a number of the women, of
certain detectives and policemen, and of the provincial governor of Davao, was taken
before the clerk of the Supreme Court sitting as commissioner and the clerk of the Court
of First Instance of Davao acting in the same capacity. On January 13, 1919, the
respondents technically presented before the Court the women who had returned to the
city through their own efforts and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once again recounted the
facts and further endeavored to account for all of the persons involved in the habeas
corpus. In substance, it was stated that the respondents, through their representatives
and agents, had succeeded in bringing from Davao with their consent eight women; that
eighty-one women were found in Davao who, on notice that if they desired they could
return to Manila, transportation fee, renounced the right through sworn statements; that
fifty-nine had already returned to Manila by other means, and that despite all efforts to
find them twenty-six could not be located. Both counsel for petitioners and the city fiscal
were permitted to submit memoranda. The first formally asked the court to find Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of
Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal
requested that the replica al memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck from the
record.chanroblesvirtualawlibrary chanrobles virtual law library
In the second order, the court promised to give the reasons for granting the writ of habeas
corpus in the final decision. We will now proceed to do
so.chanroblesvirtualawlibrary chanrobles virtual law library
One fact, and one fact only, need be recalled - these one hundred and seventy women
were isolated from society, and then at night, without their consent and without any
opportunity to consult with friends or to defend their rights, were forcibly hustled on board
steamers for transportation to regions unknown. Despite the feeble attempt to prove that
the women left voluntarily and gladly, that such was not the case is shown by the mere
fact that the presence of the police and the constabulary was deemed necessary and that
these officers of the law chose the shades of night to cloak their secret and stealthy acts.
Indeed, this is a fact impossible to refute and practically admitted by the
respondents.chanroblesvirtualawlibrary chanrobles virtual law library
With this situation, a court would next expect to resolve the question - By authority of
what law did the Mayor and the Chief of Police presume to act in deporting by duress
these persons from Manila to another distant locality within the Philippine Islands? We turn
to the statutes and we find - chanrobles virtual law library
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of
congress. The Governor-General can order the eviction of undesirable aliens after a
hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of the
Revised Ordinances of the city of Manila provide for the conviction and punishment by a
court of justice of any person who is a common prostitute. Act No. 899 authorizes the
return of any citizen of the United States, who may have been convicted of vagrancy, to
the homeland. New York and other States have statutes providing for the commitment to
the House of Refuge of women convicted of being common prostitutes. Always a law! Even
when the health authorities compel vaccination, or establish a quarantine, or place a
leprous person in the Culion leper colony, it is done pursuant to some law or order. But
one can search in vain for any law, order, or regulation, which even hints at the right of
the Mayor of the city of Manila or the chief of police of that city to force citizens of the
Philippine Islands - and these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the same constitutional
guaranties as are other citizens - to change their domicile from Manila to another locality.
On the contrary, Philippine penal law specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person to change his
residence.chanroblesvirtualawlibrary chanrobles virtual law library
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important
as to be found in the Bill of Rights of the Constitution. Under the American constitutional
system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered
so elementary in nature as not even to require a constitutional sanction. Even the
Governor-General of the Philippine Islands, even the President of the United States, who
has often been said to exercise more power than any king or potentate, has no such
arbitrary prerogative, either inherent or express. Much less, therefore, has the executive
of a municipality, who acts within a sphere of delegated powers. If the mayor and the
chief of police could, at their mere behest or even for the most praiseworthy of motives,
render the liberty of the citizen so insecure, then the presidents and chiefs of police of one
thousand other municipalities of the Philippines have the same privilege. If these officials
can take to themselves such power, then any other official can do the same. And if any
official can exercise the power, then all persons would have just as much right to do so.
And if a prostitute could be sent against her wishes and under no law from one locality to
another within the country, then officialdom can hold the same club over the head of any
citizen.chanroblesvirtualawlibrary chanrobles virtual law library
Law defines power. Centuries ago Magna Charta decreed that - "No freeman shall be
taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn
41 | P a g e
him, but by lawful judgment of his peers or by the law of the land. We will sell to no man,
we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111,
1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law.
The courts are the forum which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme
Court of the United States, "is the only supreme power in our system of government, and
every man who by accepting office participates in its functions is only the more strongly
bound to submit to that supremacy, and to observe the limitations which it imposes upon
the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.)
"The very idea," said Justice Matthews of the same high tribunal in another case, "that one
man may be compelled to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another, seems to be intolerable in
any country where freedom prevails, as being the essence of slavery itself." (Yick
Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the
writ of habeas corpus, and makes clear why we said in the very beginning that the
primary question was whether the courts should permit a government of men or a
government of laws to be established in the Philippine
Islands.chanroblesvirtualawlibrary chanrobles virtual law library
What are the remedies of the unhappy victims of official oppression? The remedies of the
citizen are three: (1) Civil action; (2) criminal action, and (3) habeas
corpus.chanroblesvirtualawlibrary chanrobles virtual law library
The first is an optional but rather slow process by which the aggrieved party may recoup
money damages. It may still rest with the parties in interest to pursue such an action, but
it was never intended effectively and promptly to meet any such situation as that now
before us.chanroblesvirtualawlibrary chanrobles virtual law library
As to criminal responsibility, it is true that the Penal Code in force in these Islands
provides:
Any public officer not thereunto authorized by law or by regulations of a general character
in force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court,
shall be punished by a fine of not less than three hundred and twenty-five and not more
than three thousand two hundred and fifty pesetas.chanroblesvirtualawlibrary chanrobles
virtual law library
Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers
find that any public officer has violated this provision of law, these prosecutors will
institute and press a criminal prosecution just as vigorously as they have defended the
same official in this action. Nevertheless, that the act may be a crime and that the persons
guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the
words of Judge Cooley in a case which will later be referred to - "It would be a monstrous
anomaly in the law if to an application by one unlawfully confined, ta be restored to his
liberty, it could be a sufficient answer that the confinement was a crime, and therefore
might be continued indefinitely until the guilty party was tried and punished therefor by
the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416,
434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy
to relieve persons from unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left untouched by decision on the
writ, whose principal purpose is to set the individual at
liberty.chanroblesvirtualawlibrary chanrobles virtual law library
Granted that habeas corpus is the proper remedy, respondents have raised three specific
objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in
parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3)
that the person in question are not restrained of their liberty by respondents. It was finally
suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila
only extends to the city limits and that perforce they could not bring the women from
Davao.chanroblesvirtualawlibrary chanrobles virtual law library
The first defense was not presented with any vigor by counsel. The petitioners were
relatives and friends of the deportees. The way the expulsion was conducted by the city
officials made it impossible for the women to sign a petition for habeas corpus. It was
consequently proper for the writ to be submitted by persons in their behalf. (Code of
Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous
regard for personal liberty, even makes it the duty of a court or judge to grant a writ
of habeas corpus if there is evidence that within the court's jurisdiction a person is
unjustly imprisoned or restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in
court.chanroblesvirtualawlibrary chanrobles virtual law library
The fiscal next contended that the writ should have been asked for in the Court of First
Instance of Davao or should have been made returnable before that court. It is a general
rule of good practice that, to avoid unnecessary expense and inconvenience, petitions
for habeas corpus should be presented to the nearest judge of the court of first instance.
But this is not a hard and fast rule. The writ of habeas corpusmay be granted by the
Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code
of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall
be made returnable before the Supreme Court or before an inferior court rests in the
discretion of the Supreme Court and is dependent on the particular circumstances. In this
instance it was not shown that the Court of First Instance of Davao was in session, or that
the women had any means by which to advance their plea before that court. On the other
hand, it was shown that the petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown that the case involved
parties situated in different parts of the Islands; it was shown that the women might still
be imprisoned or restrained of their liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken cognizance of and decided immediately by the
appellate court. The failure of the superior court to consider the application and then to
42 | P a g e
grant the writ would have amounted to a denial of the benefits of the
writ.chanroblesvirtualawlibrary chanrobles virtual law library
The last argument of the fiscal is more plausible and more difficult to meet. When the writ
was prayed for, says counsel, the parties in whose behalf it was asked were under no
restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor
and the chief of police did not extend beyond the city limits. At first blush, this is a tenable
position. On closer examination, acceptance of such dictum is found to be perversive of
the first principles of the writ of habeas corpus.chanroblesvirtualawlibrary chanrobles
virtual law library
A prime specification of an application for a writ of habeas corpus is restraint of liberty.
The essential object and purpose of the writ of habeas corpus is to inquire into all manner
of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom
if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient.
The forcible taking of these women from Manila by officials of that city, who handed them
over to other parties, who deposited them in a distant region, deprived these women of
freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao
without either money or personal belongings, they were prevented from exercising the
liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until
they freely and truly waived his right.chanroblesvirtualawlibrary chanrobles virtual law
library
Consider for a moment what an agreement with such a defense would mean. The chief
executive of any municipality in the Philippines could forcibly and illegally take a private
citizen and place him beyond the boundaries of the municipality, and then, when called
upon to defend his official action, could calmly fold his hands and claim that the person
was under no restraint and that he, the official, had no jurisdiction over this other
municipality. We believe the true principle should be that, if the respondent is within the
jurisdiction of the court and has it in his power to obey the order of the court and thus to
undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to
whom the writ is addressed has illegally parted with the custody of a person before the
application for the writ is no reason why the writ should not issue. If the mayor and the
chief of police, acting under no authority of law, could deport these women from the city of
Manila to Davao, the same officials must necessarily have the same means to return them
from Davao to Manila. The respondents, within the reach of process, may not be permitted
to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow
the act with impunity in the courts, while the person who has lost her birthright of liberty
has no effective recourse. The great writ of liberty may not thus be easily
evaded.chanroblesvirtualawlibrary chanrobles virtual law library
It must be that some such question has heretofore been presented to the courts for
decision. Nevertheless, strange as it may seem, a close examination of the authorities fails
to reveal any analogous case. Certain decisions of respectable courts are however very
persuasive in nature.chanroblesvirtualawlibrary chanrobles virtual law library
A question came before the Supreme Court of the State of Michigan at an early date as to
whether or not a writ of habeas corpus would issue from the Supreme Court to a person
within the jurisdiction of the State to bring into the State a minor child under guardianship
in the State, who has been and continues to be detained in another State. The
membership of the Michigan Supreme Court at this time was notable. It was composed of
Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question
presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J.,
held that the writ should be quashed. Cooley, J., one of the most distinguished American
judges and law-writers, with whom concurred Christiancy, J., held that the writ should
issue. Since the opinion of Justice Campbell was predicated to a large extent on his
conception of the English decisions, and since, as will hereafter appear, the English courts
have taken a contrary view, only the following eloquent passages from the opinion of
Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the present
writ on the petition which was laid before us. . . .chanroblesvirtualawlibrary chanrobles
virtual law library
It would be strange indeed if, at this late day, after the eulogiums of six centuries and a
half have been expended upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could declare in his speech on the
petition of right that "Magna Charta was such a fellow that he will have no sovereign," and
after the extension of its benefits and securities by the petition of right, bill of rights
and habeas corpus acts, it should now be discovered that evasion of that great clause for
the protection of personal liberty, which is the life and soul of the whole instrument, is so
easy as is claimed here. If it is so, it is important that it be determined without delay, that
the legislature may apply the proper remedy, as I can not doubt they would, on the
subject being brought to their notice. . . .chanroblesvirtualawlibrary chanrobles virtual law
library
The second proposition - that the statutory provisions are confined to the case of
imprisonment within the state - seems to me to be based upon a misconception as to the
source of our jurisdiction. It was never the case in England that the court of king's bench
derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not
passed to give the right, but to compel the observance of rights which existed. . .
.chanroblesvirtualawlibrary chanrobles virtual law library
The important fact to be observed in regard to the mode of procedure upon this writ is,
that it is directed to and served upon, not the person confined, but his jailor. It does not
reach the former except through the latter. The officer or person who serves it does not
unbar the prison doors, and set the prisoner free, but the court relieves him by compelling
the oppressor to release his constraint. The whole force of the writ is spent upon the
respondent, and if he fails to obey it, the means to be resorted to for the purposes of
compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if
any other means are resorted to, they are only auxiliary to those which are usual. The
place of confinement is, therefore, not important to the relief, if the guilty party is within
reach of process, so that by the power of the court he can be compelled to release his
grasp. The difficulty of affording redress is not increased by the confinement being beyond
43 | P a g e
the limits of the state, except as greater distance may affect it. The important question is,
where the power of control exercised? And I am aware of no other remedy. (In the matter
of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.) chanrobles virtual law library
The English courts have given careful consideration to the subject. Thus, a child had been
taken out of English by the respondent. A writ of habeas corpuswas issued by the Queen's
Bench Division upon the application of the mother and her husband directing the
defendant to produce the child. The judge at chambers gave defendant until a certain date
to produce the child, but he did not do so. His return stated that the child before the
issuance of the writ had been handed over by him to another; that it was no longer in his
custody or control, and that it was impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at the
Royal Courts of Justice immediately after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to bring the child before the judge and
must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of
the child. If it could be shown that by reason of his having lawfully parted with the
possession of the child before the issuing of the writ, the defendant had no longer power
to produce the child, that might be an answer; but in the absence of any lawful reason he
is bound to produce the child, and, if he does not, he is in contempt of the Court for not
obeying the writ without lawful excuse. Many efforts have been made in argument to shift
the question of contempt to some anterior period for the purpose of showing that what
was done at some time prior to the writ cannot be a contempt. But the question is not as
to what was done before the issue of the writ. The question is whether there has been a
contempt in disobeying the writ it was issued by not producing the child in obedience to its
commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same
effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was
directed to the defendant to have before the circuit court of the District of Columbia three
colored persons, with the cause of their detention. Davis, in his return to the writ, stated
on oath that he had purchased the negroes as slaves in the city of Washington; that, as he
believed, they were removed beyond the District of Columbia before the service of the writ
of habeas corpus, and that they were then beyond his control and out of his custody. The
evidence tended to show that Davis had removed the negroes because he suspected they
would apply for a writ of habeas corpus. The court held the return to be evasive and
insufficient, and that Davis was bound to produce the negroes, and Davis being present in
court, and refusing to produce them, ordered that he be committed to the custody of the
marshall until he should produce the negroes, or be otherwise discharged in due course of
law. The court afterwards ordered that Davis be released upon the production of two of
the negroes, for one of the negroes had run away and been lodged in jail in Maryland.
Davis produced the two negroes on the last day of the term. (United States vs. Davis
[1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111
U.S., 624; Church on Habeas, 2nd ed., p. 170.) chanrobles virtual law library
We find, therefore, both on reason and authority, that no one of the defense offered by
the respondents constituted a legitimate bar to the granting of the writ of habeas
corpus.chanroblesvirtualawlibrary chanrobles virtual law library
There remains to be considered whether the respondent complied with the two orders of
the Supreme Court awarding the writ of habeas corpus, and if it be found that they did
not, whether the contempt should be punished or be taken as
purged.chanroblesvirtualawlibrarychanrobles virtual law library
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yñigo to present the persons named in the writ before the court on
December 2, 1918. The order was dated November 4, 1918. The respondents were thus
given ample time, practically one month, to comply with the writ. As far as the record
discloses, the Mayor of the city of Manila waited until the 21st of November before sending
a telegram to the provincial governor of Davao. According to the response of the attorney
for the Bureau of Labor to the telegram of his chief, there were then in Davao women who
desired to return to Manila, but who should not be permitted to do so because of having
contracted debts. The half-hearted effort naturally resulted in none of the parties in
question being brought before the court on the day
named.chanroblesvirtualawlibrary chanrobles virtual law library
For the respondents to have fulfilled the court's order, three optional courses were open:
(1) They could have produced the bodies of the persons according to the command of the
writ; or (2) they could have shown by affidavit that on account of sickness or infirmity
those persons could not safely be brought before the court; or (3) they could have
presented affidavits to show that the parties in question or their attorney waived the right
to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of
the persons in whose behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to be present by
those interested. Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been repudiated by the
signers, were appended to the return. That through ordinary diligence a considerable
number of the women, at least sixty, could have been brought back to Manila is
demonstrated to be found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing by the
respondents.chanroblesvirtualawlibrary chanrobles virtual law library
The court, at the time the return to its first order was made, would have been warranted
summarily in finding the respondents guilty of contempt of court, and in sending them to
jail until they obeyed the order. Their excuses for the non-production of the persons were
far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all
tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example,
in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court,
44 | P a g e
said: " We thought that, having brought about that state of things by his own illegal act,
he must take the consequences; and we said that he was bound to use every effort to get
the child back; that he must do much more than write letters for the purpose; that he
must advertise in America, and even if necessary himself go after the child, and do
everything that mortal man could do in the matter; and that the court would only accept
clear proof of an absolute impossibility by way of excuse." In other words, the return did
not show that every possible effort to produce the women was made by the respondents.
That the court forebore at this time to take drastic action was because it did not wish to
see presented to the public gaze the spectacle of a clash between executive officials and
the judiciary, and because it desired to give the respondents another chance to
demonstrate their good faith and to mitigate their
wrong.chanroblesvirtualawlibrary chanrobles virtual law library
In response to the second order of the court, the respondents appear to have become
more zealous and to have shown a better spirit. Agents were dispatched to Mindanao,
placards were posted, the constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was provided. While charges and
counter-charges in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our mandate, we
come to conclude that there is a substantial compliance with it. Our finding to this effect
may be influenced somewhat by our sincere desire to see this unhappy incident finally
closed. If any wrong is now being perpetrated in Davao, it should receive an executive
investigation. If any particular individual is still restrained of her liberty, it can be made
the object of separate habeas corpusproceedings.chanroblesvirtualawlibrary chanrobles
virtual law library
Since the writ has already been granted, and since we find a substantial compliance with
it, nothing further in this connection remains to be
done.chanroblesvirtualawlibrary chanrobles virtual law library
The attorney for the petitioners asks that we find in contempt of court Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose
Rodriguez, and Fernando Ordax, members of the police force of the city of Manila,
Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo, an hacendero of
Davao, and Anacleto Diaz, Fiscal of the city of
Manila.chanroblesvirtualawlibrary chanrobles virtual law library
The power to punish for contempt of court should be exercised on the preservative and
not on the vindictive principle. Only occasionally should the court invoke its inherent power
in order to retain that respect without which the administration of justice must falter or
fail. Nevertheless when one is commanded to produce a certain person and does not do
so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either imprisoned or fined. An
officer's failure to produce the body of a person in obedience to a writ of habeas
corpus when he has power to do so, is a contempt committed in the face of the court. ( Ex
parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.) chanrobles
virtual law library
With all the facts and circumstances in mind, and with judicial regard for human
imperfections, we cannot say that any of the respondents, with the possible exception of
the first named, has flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their
chiefs, and while, under the law of public officers, this does not exonerate them entirely, it
is nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to have
been drawn into the case through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to
fulfill his duty as the legal representative of the city government. Finding him innocent of
any disrespect to the court, his counter-motion to strike from the record the memorandum
of attorney for the petitioners, which brings him into this undesirable position, must be
granted. When all is said and done, as far as this record discloses, the official who was
primarily responsible for the unlawful deportation, who ordered the police to accomplish
the same, who made arrangements for the steamers and the constabulary, who conducted
the negotiations with the Bureau of Labor, and who later, as the head of the city
government, had it within his power to facilitate the return of the unfortunate women to
Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the
social evil was commendable. His methods were unlawful. His regard for the writ of habeas
corpus issued by the court was only tardily and reluctantly
acknowledged.chanroblesvirtualawlibrary chanrobles virtual law library
It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure,
which relates to the penalty for disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in addition to deal with him as for a contempt.
Some members of the court are inclined to this stern view. It would also be possible to
find that since respondent Lukban did comply substantially with the second order of the
court, he has purged his contempt of the first order. Some members of the court are
inclined to this merciful view. Between the two extremes appears to lie the correct finding.
The failure of respondent Lukban to obey the first mandate of the court tended to belittle
and embarrass the administration of justice to such an extent that his later activity may
be considered only as extenuating his conduct. A nominal fine will at once command such
respect without being unduly oppressive - such an amount is
P100.chanroblesvirtualawlibrary chanrobles virtual law library
In resume - as before stated, no further action on the writ of habeas corpus is necessary.
The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to
be in contempt of court. Respondent Lukban is found in contempt of court and shall pay
into the office of the clerk of the Supreme Court within five days the sum of one hundred
pesos (P100). The motion of the fiscal of the city of Manila to strike from the record
the Replica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall
be taxed against respondents. So ordered.chanroblesvirtualawlibrary chanrobles virtual
law library
In concluding this tedious and disagreeable task, may we not be permitted to express the
hope that this decision may serve to bulwark the fortifications of an orderly government of
laws and to protect individual liberty from illegal
encroachment.chanroblesvirtualawlibrary chanrobles virtual law library
45 | P a g e
 G.R. No. L-69198 April 17, 1985
VENECIO VILLAR, INOCENCIO F. RECITIS, NOVERTO BARRETO, RUFINO G.
SALCON, JR., EDGARDO DE LEON, JR., REGLOBEN LAXAMANA, and ROMEO
GUILATCO, JR., petitioners,
vs.
TECHNOLOGICAL INSTITUTE OF THE PHILIPPINES (TIP), DEMETRIO A. QUIRINO,
JR., in his capacity as Chairman of the Board of TIP, TERESITA U. QUIRINO, in
her capacity as President of TIP, and OSCAR M. SOLIVEN, in his capacity as Vice-
President/Dean for Students and Alumni Affairs of TIP, respondents.
FERNANDO, C.J.:
The crucial question in this petition, inappropriately entitled "extraordinary legal and
equitable remedies with prayer for preliminary mandatory injunction," which this Court
considered as a special civil action for certiorari and prohibition, is whether or not the
exercise of the freedom of assembly on the part of certain students of respondent
Technological Institute of the Philippines could be a basis for their being barred from
enrollment. The answer is supplied by our decision in Malabanan v. Ramento,1 where it
was held that respect for the constitutional rights of peaceable assembly and free speech
calls for a negative answer. If that were an then, the petitioners 2 are entitled to the
remedy prayed for. There is, however, this other circumstance to be taken into
consideration. In the opposition to the petition for preliminary mandatory injunction,
reference was made to the academic records of petitioners. Two of the petitioners, Rufino
G. Salcon, Jr., 3 and Romeo L. Guilatco, Jr., 4 had only one failing grade each, with the
first having failed in only one subject in either semester of 1984-1985 schoolyear and the
second having failed in only one subject, having passed in eight other subjects in the
1984-1985 schoolyear. Petitioner Venecio Villar failed in two subjects but passed in four
subjects in the first semester of the academic year, 1983-1984. 5 Petitioner Inocencio F.
Recitis6 passed all his subjects in the first semester of 19831984 schoolyear and had one
failing grade during its second semester. He had two failing grades during the first
semester of 1984-1985 schoolyear. Petitioner Noverto Barreto, 7 had five failing grades in
the first semester of schoolyear 1983-1984, six failing grades in the second semester of
the same schoolyear, and six failing grades in the first semester of 1984-1985 schoolyear.
Petitioner Edgardo de Leon, Jr., 8 had three failing grades, one passing grade and one
subject dropped in the first semester of schoolyear 1984-1985. Petitioner Regloben
Laxamana 9 had five failing grades with no passing grade in the first semester of 1984-
1985 schoolyear. Petitioners Barreto, de Leon, Jr. and Laxamana could be denied
enrollment in view of such failing grades. Respondent educational institution is under no
obligation to admit them this coming academic year. The constitutional provision on
academic freedom enjoyed by institutions of higher learning justifies such refusal. 10
Petitioners Venecio Villar, Rufino G. Salcon, Jr., Romeo L. Guilatco, Jr. and Inocencio F.
Recites are entitled to the writs of certiorari and prohibition.
1. In the aforementioned Malabanan v. Ramento decision, this Court held: "As is quite
clear from the opinion in Reyes v. Bagatsing, the invocation of the right to freedom of
peaceable assembly carries with it the implication that the right to free speech has
likewise been disregarded. Both are embraced in the concept of freedom of expression,
which is Identified with the liberty to discuss publicly and truthfully, any matter of public
interest without censorship or punishment and which 'is not to be limited, much less
denied, except on a showing ... of a clear and present danger of a substantive evil that the
state has a right to prevent." 11 An equally relevant excerpt from the opinion therein
follows: "Petitioners invoke their rights to peaceable assembly and free speech, they are
entitled to do so. They enjoy like the rest of the citizens the freedom to express their
views and communicate their thoughts to those disposed to listen in gatherings such as
was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker
v. Des Moines Community School District, 'shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate.'" 12 Petitioners, therefore, have a valid
cause for complaint if the exercise of the constitutional rights to free speech and
peaceable assembly was visited by their expulsion from respondent College.
2. What cannot be stressed too sufficiently is that among the most important social,
economic, and cultural rights is the right to education not only in the elementary and high
school grades but also on the college level. The constitutional provision as to the State
maintaining "a system of free public elementary education and, in areas where finances
permit, establish and maintain a system of free public education" 13 up to the high school
level does not per se exclude the exercise of that right in colleges and universities. It is
only at the most a reflection of the lack of sufficient funds for such a duty to be obligatory
in the case of students in the colleges and universities. As far as the right itself is
concerned, not the effectiveness of the exercise of such right because of the lack of funds,
Article 26 of the Universal Declaration of Human Rights provides: "Everyone has the right
to education. Education shall be free, at least in the elementary and fundamental stages.
Elementary education shall be compulsory. Technical and professional education shall be
made generally available and higher education shall be equally accessible to all on the
basis of merit." 14
3. It is quite clear that while the right to college education is included in the social
economic, and cultural rights, it is equally manifest that the obligation imposed on the
State is not categorical, the phrase used being "generally available" and higher education,
while being "equally accessible to all should be on the basis of merit." To that extent,
therefore, there is justification for excluding three of the aforementioned petitioners
because of their marked academic deficiency.
4. The academic freedom enjoyed by "institutions of higher learning" includes the right to
set academic standards to determine under what circumstances failing grades suffice for
the expulsion of students. Once it has done so, however, that standard should be followed
meticulously. It cannot be utilized to discriminate against those students who exercise
their constitutional rights to peaceable assembly and free speech. If it does so, then there
is a legitimate grievance by the students thus prejudiced, their right to the equal
protection clause 15 being disregarded.
5. While the dispositive portion refers only to petitioners of record, the doctrine announced
in this case should apply to all other students similarly situated. That way, there should
not be any need for a party to apply to this Court for the necessary redress.
46 | P a g e
WHEREFORE, the writ of certiorari is granted to petitioners Venecio Villar, Inocencio F. enrolled students. This is confirmed by petitioner's letter of apology which reads as
Recitis, Rufino G. Salcon, Jr. and Romeo Guilatco, Jr. to nullify the action taken by follows—
respondents in violation of their constitutional rights. The writ of prohibition is likewise
granted to such petitioners to enjoin respondents from acts of surveillance, black-listing,
suspension and refusal to allow them to enroll in the coming academic year 1985-1986, if
so minded. The petition is dismissed as to Noverto Barreto, Edgardo de Leon, Jr. and
May 14, 1976
Regloben Laxamana. No costs.

Mrs. Florencia Pagador

G.R. No. L-45157 June 27, 1985
Dean of De Ocampo Memorial
School of Nursing,
MELY TANGONAN, petitioner, Nagtahan St., Sta. Mesa Blvd.
vs. Sampaloc, Manila
HON. JUDGE ERNANI CRUZ PAÑO, CAPITOL MEDICAL CENTER SCHOOL OF
NURSING, THELMA N. CLEMENTE, SENAMAR L. PURA and ADELAIDA
Dear Ma'm:
SULIT, respondents.

I am awfully sorry for offering you P50,00 just to help me. I hope and pray for your
CUEVAS, J.:
forgiveness. I wish to express my sincere apology. And please allow me to get enrolled
officially,
Alleging that the Hon. respondent Judge 1 acted without or in excess of jurisdiction and/or
with grave abuse of discretion in dismissing 2 her petition for mandamus 3 petitioner
Thank you.
comes to Us thru the instant petition for "Certiorari with Preliminary Mandatory Injunction
with Damages" 4 raising the following issues—
Sincerely yours,
1. Is his Honor guilty of grave abuse of discretion when he rendered the questioned
decision without any formal hearing ? (Sgd) MISS MELY TANGONAN

2. Is the extraordinary remedy of mandamus available to an aggrieved party who was

refused enrolment without lawful ground . . . expelled by private respondents without
affording her the opportunity to be heard . . . and excluded from enrolling, while allowing
others similarly situated, to enroll? and
3. Finally, is the decision of the respondent court conformable to law and the evidence?
On June 14, 1976, petitioner applied for re-enrolment at respondent school (Capitol
Medical Center School of Nursing) but was referred to the Guidance Counsellor for the
following reasons—

Hereunder are the pertinent antecedents.
Petitioner Mely Tangonan was temporarily admitted in May 1975 at the Capitol Medical
School of Nursing for the school year 1975-1976, as a second year student subject to the
submission of a sealed "Honorable Dismissal" and a "Transcript of Records" valid for
transfer. Her admission in said school was on probationary basis having merely submitted
an unsealed "Honorable Dismissal" and a "Transcript of Records" not valid for transfer, on
her promise that such records will be immediately replaced with official acceptable
records. She enrolled for two (2) semesters. In her second semester, she flunked in
Psychiatric Nursing but was allowed to cross-enroll in said subject in Summer 1976 at the
De Ocampo Memorial School. Obviously, petitioner had enrolment problems at the De
Ocampo Memorial School for she was reported to have attempted to bribe Dean Florencia
Pagador of the said school so that her name could be included in the list of Summer 1976
a. On the replacement of her admission records when she first enrolled in May 1976;
b. On the results of her cross-enrolment for summer 1976; and
c. For explanation of a reported charge (supported by a Xerox copy of her apology to Dean
Pagador) of attempting to bribe Dean Pagador.
Because of her refusal and/or failure, to submit the required explanation, the matter of
her re-admission was submitted to the school's Board of Admission. Deliberating on
petitioner's case, the Board of Admission, in a Meeting held on June 25, 1976, 5 made the
following recommendation—
RECOMMENDATION:

47 | P a g e
 In view of the foregoing findings, the Board of Admission declared her an
undesirable student who should not be readmitted to CMCSN but without
prejudice to her being given transfer credentials to another school.
SUBMITTED BY:
(Sgd) Benita Cortez
Minutes of the Board's deliberation on the matter which brought about said
recommendation runs thus—
AGENDA: Case of Mely Tangonan, nursing student who is seeking re-
admission to the School of Nursing.
Findings: During the deliberation of the Board, the following findings were
discussed:
A. ACADEMIC PERFORMANCE I
1. Admitted to the school on probation because of a failing mark in
Communicable Disease Nursing at the PCC-Mary Johnston Hospital School
of Nursing. EXHIBIT A)
2. Failed in Psychiatric Nursing during the second semester of School Year
1975-1976. EXHIBIT B)
B. CLINICAL PERFORMANCE
1. Average in the clinical performance.
2. Did not complete clinical experience required in summer. Stopped
reporting in the clinical area without notifying the clinical instructor or
coordinator. (EXHIBIT C)
3. had frequent absences in the clinical area.
C. ATTITUDES AND BEHAVIORS
1. Did not seek enrolment or notify school registrar of a desire to enroll
during the scheduled registration dates for seniors. Came to enroll daring
the week after regular classes. (EXHIBIT D)
2. Tried to bribe Mrs. Pagador, Dean, College of Nursing, De Ocampo
Memorial School with P50.00 (Fifty Pesos) when she was not yet officially
enrolled when it was already the end of summer- classes. EXHIBIT E)
3. Violated rules and regulations of the school.(EXHIBIT F)
4. Refused to write a letter to the Board of Admission requesting for re-
admission and apologizing for what she did against the Doms and Dean
Pagador which has brought embarrasment to CMCSN She was asked to
make this letter to the Principal through a telephone instruction to Mrs.
Benita Cortez. Miss Tangonan allegedly stated that she would write the
letter only if she is given the assurance by the Principal or by the
Chairman of the Board of Trustees that she would be allowed to enroll.
Informed of the said board's decision disallowing her re-admission, petitioner lodged a
complaint against the school before the Department of Education, Regional Office No. 4. A
conference was accordingly conducted between petitioner and respondent school's
authorities in the presence of Regional Director Manuel in the course of which, petitioner
agreed to transfer to another school. But instead of transferring to another school,
petitioner filed a petition for mandamus 6 before the Court of First Instance of Rizal,
Branch XVIII, presided over by respondent Judge, praying that pending adjudication of the
case on the merit, an ex-parte order be issued commanding respondents to admit
petitioner to enroll and attend classes upon payment of the prescribed fees; and after
hearing, judgment be rendered requiring respondents to pay damages and attorney's fees.
On July 27, 1977, the lower court issued the writ prayed for thereby "ordering
respondents to admit petitioner on probation basis for the school year 1976-1977 upon
payment of the requisite fees and to attend classes" in respondent school. 7
In their Answer 8 filed on August 5, 1976, respondents alleged among others, by way of
special defenses—
That the then petition states no cause of action because of the following
circumstances:
a. Petitioner in the July 2, 1976 meeting at the office of Dr. Manuel already
agreed to transfer to another school and therefore without condition,
foreclosed her right to enroll at respondent school;
b. There has been no demand after July 1, 1976 by petitioner directed to
respondent school to admit her as required in mandamus action;
c. To the extent, allowed by regulations and considering that petitioner
was not yet an enrolled student, and hence the school had no jurisdiction
vet to conduct any formal investigation and compel her presence therein,
petitioner was given all the opportunity as early as June 14, 1976 to
explain her side which privilege she however refused to take advantage of,
by being adamant in submitting any explanation, oral or in writing to
certain offenses made known to her, after having been compelled
continuously to do so at several levels by respondents.
That it is within the prerogative of private schools to deny admission of
students for scholastic insufficiency, incomplete scholastic records and
commission of an offense, like attempt to bribe, violating school
regulations.
The issues having been joined, the case was calendared for pre-trial on September 22,
1976. The parties submitted their respective pre-trial briefs. 9 A second pre-trial
conference was held on October 7, 1976 on which date, the court a quo issued the
following Order 10 —
This is a second pre-trial conference of this case attended by the parties
and their respective counsel.
Considering that this is a petition for mandamus so that the issue is limited
to one of law, which is the question of whether respondent school had any
legal ground for refusing the petitioner, Mely 'Tangonan, and therefore
there is no factual issue involved, the parties are directed to submit to this
Court not later than October 18, 1976, their respective affidavits and other
pertinent documents they may wish to submit, in addition to what already
appears on record, 'This is however, without prejudice to the continuous
48 | P a g e
 effort of both parties to settle this case. In this connection, the
respondents have undertaken to persuade some other nursing schools in
Metro Manila to admit the petitioner. If the plaintiff should agree to such
admission to some other school, then this Court will dismiss this case if
appropriate manifestations are made prior to October 22, 1976, otherwise,
the Court will decide the case on the merits before October 22, 1976.
On October 8, 1976, respondents submitted a MANIFESTATION 11 stating therein that
upon representations of respondent Dra. Thelma Clemente, President and Chairman of the
Board of Trustees of respondent school, the College of Nursing of the Ortañez University
was willing to accept petitioner for enrolment therein, subject to the approval of the
Department of Education and Culture.
On October 18, 1976, petitioner and respondents submitted their respective
memoranda. 12
To the manifestation of respondent Thelma Clemente that Ortañez university was willing
to admit petitioner, the latter counter-manifested 13 that "in view of certain policies and
requirements of Ortañez University she has no recourse but to demand her admission in
Capitol Medical Center School of Nursing.
On October 22, 1976, the lower court rendered its decision 14 dismissing the petition and
dissolving the writ of preliminary mandatory injunction earlier issued. Petitioner's motion
for reconsideration 15 having been denied, 16 she now comes before Us through the instant
petition with the prayers aforesaid.
The petition is devoid of merit.
Petitioner's case in the court below is that of mandamus, to compel respondent to admit
petitioner in its School of Nursing. Under Rule 65, Section 3 of the Rules of Court,
mandamus lies under any of the following cases: (1) against any tribunal which unlawfully
neglects the performance of an act which the law specifically enjoins as a duty; (2) in case
any corporation, board or person unlawfully neglects the performance of an act which the
law enjoins as a duty resulting from an office, trust or station; and (3) in case any
tribunal, corporation, board or person unlawfully excludes another from the use and
enjoyment of a right or office to which such other is legally entitled and there is no other
plain, speedy and adequate remedy in the ordinary course of law. 17
Mandamus is employed to compel the performance, when refused of a ministerial duly,
this being its main objective. It does not lie to require anyone to fulfill contractual
obligations or to compel a course of conduct, 18 nor to control or review the exercise of
discretion. 19
On the part of the party petitioner, 20 it is essential to the issuance of a writ of mandamus
that he should have a clear legal right to the thing demanded and it must be the
imperative duty of the respondent to perform the act required. It never issues in doubtful
cases. While it may not be necessary that the duty be absolutely expressed, it must
however, be clear. If the writ will not issue to compel an official to do anything which it is
not his duty to do or to which it is his duty not to do, or give to the applicant anything to
which he is not entitled by law. The writ neither confers powers nor imposes duties. It is
simply a command to exercise a power already possessed and to perform a duty already
imposed. 21
In the case at bar, the petitioner has miserably failed to show a clear legal right to be
admitted and be enrolled in respondent's School of Nursing. As correctly held by the
court a quo—
Moreover assuming that respondent has a leal duty to enroll petitioner, it
does not appear to this Court that this is merely a ministerial duty; it is
rather a duty involving the exercise of discretion. Every school has a right
to determine who are the students it should accept for enrolment. It has
the right to judge the fitness of students This is particularly true in the
case of nursing students who perform essential health services. Over and
above its responsibility to petitioner is the responsibility of the school to
the general public and the community. This Court take judicial notice that
nursing has become a popular course because of the great demand for
Filipino Nurses abroad, especially in the United States. It is essential
therefore that Nursing graduates who go abroad and become in a sense
our own ambassador should be highly qualified to perform their tasks. This
is the responsibility of our school and in the discharge of this
responsibility, they certainly should be given the greatest latitude in
formulating their admission policies.
While petitioner questions the findings of respondent school as to her
academic competence, the Court cannot find any legal jurisdiction to
interfere in the exercise of judgment of the school on this matter. The
Court finds it significant that even the Department of Education and
Culture refused to intervene in this case although the Court qqqin its Order
of July 6, 1976 invited the Department to send its legal officer as earlier
mentioned, it is not disputed that petitioner agreed to transfer to another
school during a conference held at the Department.
The Court, after weighing all the facts, does not find that the p resent case
is one that calls for the application of Article 26 of the Declaration of
Human Rights. She is not being prevented from completing her Nursing
course. There are many nursing schools in Metropolitan Manila where she
can finish her course. But she must enroll under the term, policies and
conditions imposed by the schools, rather than on her own terms. She is
moreover free to enroll in any of these schools. Respondent has not
prevented her from doing so, and has offered to assist in such transfer.
On the contrary, respondent School appeared perfectly justified in refusing to admit
petitioner in its School of Nursing. Its refusal is sanctioned by law. Section 107 of the
Manual Regulations for Private Schools considers academic delinquency and violation of
49 | P a g e
disciplinary regulations as valid grounds for refusing re-enrolment of a student. It is privilege rather than a right. She cannot therefore satisfy the prime and
incontrovertible that petitioner flunked in Psychiatric Nursing and that as of June 14, 1976, indispensable requisite of a mandamus proceeding. (Emphasis supplied)
no official report of grades for her summer course in the said subject was or could be
submitted by her, Likewise, undisputed, (in fact admitted in her letter of apology earlier Anent petitioner's submittal that respondent Judge acted without or in excess of
quoted) is her involvement in an attempt to bribe the dean of the De Ocampo School of jurisdiction or with grave abuse of discretion in requiring the parties to submit memoranda
Nursing. She was admitted in respondent's school merely on probation because she could or affidavits, instead of setting the case for a formal hearing on the merits—We find the
not submit a sealed "Honorable Dismissal" and "Transcript of Records" valid for transfer. same to be without merit. The very nature of the petition dictates its expeditious
On top of that she had a failing grade in Communicable Disease Nursing at the PCC-Mary determination. This is implicit from Section 7, Rule 65 of the Rules of Court which
Johnston Hospital School of Nursing. Her records in respondent's school also show that she provides:
did not complete the prescribed clinical experience required in summer. She stopped
reporting in the clinical area without notifying the clinical instructor or coordinator. 22
Section 7. Expediting Proceedings; Preliminary Injunction.—The court in
which the petition is filed, or a judge thereof, may make orders expediting
The foregoing notwithstanding, still petitioner would want Us to compel respondent school the proceedings, and may also grant a preliminary injunction for the
to enroll her despite her failure to meet the standard policies and qualifications set by the preservation of the rights of the parties pending such proceedings.
school. To grant such relief would be doing violence to the academic freedom enjoyed by
the respondent school enshrined under Article XV, Section 8, Par. 2 of our Constitution
In the case at bar, it was evident that on the basis of the pleadings filed, the case did not
which mandates "that all institutions of higher learning shall enjoy academic freedom."
call for the formal presentation of evidence for purposes of determining whether or not
This institutional academic freedom includes not only the freedom of professionally
respondent school could legally be ordered to admit petitioner for the school year 1976-
qualified persons to inquire, discover, publish and teach the truth as they see it in the field
1977. Petitioner's position appeared clearly stated in her basic petition which was further
of their competence subject to no control or authority except of rational methods by which
amplified by her verified Position Paper dated July 8, 1976: REPLY to the position paper of
truths and conclusions are sought and established in these disciplines, but also the right of
respondents dates July 23, 1976, petitioner's Trial Brief dated September 9, 1976 and
the school or college to decide for itself, its aims and objectives, and how best to attain
Memorandum dated October 18, 1976. Upon the other hand, respondents' stance
them—the grant being to institutions of higher learning—free from outside coercion or
appeared thoroughly spelled out in their position paper dated July 21, 1976, Answer dated
interference save possibly when the overriding public welfare calls for some restraint. It
August 5, 1976, respondent's Pre-Trial Brief dated September 20, 1976, Manifestation
has a wide sphere of autonomy certainly extending to the choice of students. Said
dated October 8, 1976 and Memorandum dated October 18, 1976. Moreover, in the
constitutional provision is not to be construed in a niggardly manner or in a grudging
second pre-trial conference held on October 7, 1976, the lower court declared that "the
fashion. That would be to frustrate its purpose and nullify its intent. 23
issue is one of law and that there is no factual issue involved. Hence, the parties were
already required to submit their memoranda and the pertinent documents in support of
Elaborating further on the subject, this Court speaking thru that Eminent Constitutionalist their respective stand. Petitioner did not question the aforesaid order. Instead, she filed
then Mr. Justice now the Hon. Chief Justice Enrique M. Fernando 24 held— her memorandum. Consequently, she is now estopped from asserting that she was denied
the chance to present her evidence in a formal hearing.
Petitioner cannot compel by mandamus, the respondent to admit her into
further studies in the Loyola School of Theology. For respondent has no At any rate, as discussed earlier, petitioner is not legally entitled to the issuance of the
clear duly to admit the petitioner. The Loyola School of Theology is a writ prayed for.
seminary for the priesthood. Petitioner is admittedly and obviously not
studying for the priesthood, she being a lay person and a woman. And
WHEREFORE, the instant petition is DISMISSED without pronouncement as to costs.
even assuming ex gratia argumenti that she is qualified to study for the
priesthood, there is still no duty on the part of respondent to admit her to
said studies, since the school has clearly the discretion to turn down even SO ORDERED.
qualified applicants due to limitations of space, facilities, professors and
optimum classroom size and component considerations. No authorities
were cited, respondent apparently being of the view that the law has not
reached the stage when the matter of admission to an institution of higher
learning rests on the sole and uncontrolled discretion of the applicant.
There are standards that must be met. There are policies to be pursued.
Discretion appears to be of the essence. In terms of Hohfeld's
terminology, what a student in the position of the petitioner possesses is a

50 | P a g e
 G.R. No. 89572 December 21, 1989
declared for a unanimous Court:
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS (DECS) and DIRECTOR OF
CENTER FOR EDUCATIONAL MEASUREMENT, petitioners,
vs.
ROBERTO REY C. SAN DIEGO and JUDGE TERESITA DIZON-CAPULONG, in her
capacity as Presiding Judge of the Regional Trial Court of Valenzuela, Metro
Manila, Branch 172, respondents.
CRUZ, J.:
The issue before us is mediocrity. The question is whether a person who has thrice failed
the National Medical Admission Test (NMAT) is entitled to take it again.
The petitioner contends he may not, under its rule that-
h) A student shall be allowed only three (3) chances to take the NMAT.
After three (3) successive failures, a student shall not be allowed to take
the NMAT for the fourth time.
The private respondent insists he can, on constitutional grounds.
But first the facts.
The private respondent is a graduate of the University of the East with a degree of
Bachelor of Science in Zoology. The petitioner claims that he took the NMAT three times
and flunked it as many times.1 When he applied to take it again, the petitioner rejected his
application on the basis of the aforesaid rule. He then went to the Regional Trial Court of
Valenzuela, Metro Manila, to compel his admission to the test.
In his original petition for mandamus, he first invoked his constitutional rights to academic
freedom and quality education. By agreement of the parties, the private respondent was
allowed to take the NMAT scheduled on April 16, 1989, subject to the outcome of his
petition. 2 In an amended petition filed with leave of court, he squarely challenged the
constitutionality of MECS Order No. 12, Series of 1972, containing the above-cited rule.
The additional grounds raised were due process and equal protection.
After hearing, the respondent judge rendered a decision on July 4, 1989, declaring the
challenged order invalid and granting the petition. Judge Teresita Dizon-Capulong held
that the petitioner had been deprived of his right to pursue a medical education through
an arbitrary exercise of the police power. 3
We cannot sustain the respondent judge. Her decision must be reversed.
In Tablarin v. Gutierrez, 4 this Court upheld the constitutionality of the NMAT as a measure
intended to limit the admission to medical schools only to those who have initially proved
their competence and preparation for a medical education. Justice Florentino P. Feliciano
Perhaps the only issue that needs some consideration is whether there is
some reasonable relation between the prescribing of passing the NMAT as
a condition for admission to medical school on the one hand, and the
securing of the health and safety of the general community, on the other
hand. This question is perhaps most usefully approached by recalling that
the regulation of the pratice of medicine in all its branches has long been
recognized as a reasonable method of protecting the health and safety of
the public. That the power to regulate and control the practice of medicine
includes the power to regulate admission to the ranks of those authorized
to practice medicine, is also well recognized. Thus, legislation and
administrative regulations requiring those who wish to practice medicine
first to take and pass medical board examinations have long ago been
recognized as valid exercises of governmental power. Similarly, the
establishment of minimum medical educational requirements-i.e., the
completion of prescribed courses in a recognized medical school-for
admission to the medical profession, has also been sustained as a
legitimate exercise of the regulatory authority of the state. What we have
before us in the instant case is closely related: the regulation of access to
medical schools. MECS Order No. 52, s. 1985, as noted earlier, articulates
the rationale of regulation of this type: the improvement of the
professional and technical quality of the graduates of medical schools, by
upgrading the quality of those admitted to the student body of the medical
schools. That upgrading is sought by selectivity in the process of
admission, selectivity consisting, among other things, of limiting admission
to those who exhibit in the required degree the aptitude for medical
studies and eventually for medical practice. The need to maintain, and the
difficulties of maintaining, high standards in our professional schools in
general, and medical schools in particular, in the current state of our social
and economic development, are widely known.
We believe that the government is entitled to prescribe an admission test
like the NMAT as a means of achieving its stated objective of "upgrading
the selection of applicants into [our] medical schools" and of "improv[ing]
the quality of medical education in the country." Given the widespread use
today of such admission tests in, for instance, medical schools in the
United States of America (the Medical College Admission Test [MCAT] and
quite probably, in other countries with far more developed educational
resources than our own, and taking into account the failure or inability of
the petitioners to even attempt to prove otherwise, we are entitled to hold
that the NMAT is reasonably related to the securing of the ultimate end of
legislation and regulation in this area. That end, it is useful to recall, is the
protection of the public from the potentially deadly effects of incompetence
and ignorance in those who would undertake to treat our bodies and minds
for disease or trauma.
51 | P a g e
However, the respondent judge agreed with the petitioner that the said case was not
applicable. Her reason was that it upheld only the requirement for the admission test and
said nothing about the so-called "three-flunk rule."
We see no reason why the rationale in the Tablarin case cannot apply to the case at bar.
The issue raised in both cases is the academic preparation of the applicant. This may be
gauged at least initially by the admission test and, indeed with more reliability, by the
three-flunk rule. The latter cannot be regarded any less valid than the former in the
regulation of the medical profession.
There is no need to redefine here the police power of the State. Suffice it to repeat that
the power is validly exercised if (a) the interests of the public generally, as distinguished
from those of a particular class, require the interference of the State, and (b) the means
employed are reasonably necessary to the attainment of the object sought to be
accomplished and not unduly oppressive upon individuals.5
In other words, the proper exercise of the police power requires the concurrence of a
lawful subject and a lawful method.
The subject of the challenged regulation is certainly within the ambit of the police power.
It is the right and indeed the responsibility of the State to insure that the medical
profession is not infiltrated by incompetents to whom patients may unwarily entrust their
lives and health.
The method employed by the challenged regulation is not irrelevant to the purpose of the
law nor is it arbitrary or oppressive. The three-flunk rule is intended to insulate the
medical schools and ultimately the medical profession from the intrusion of those not
qualified to be doctors.
While every person is entitled to aspire to be a doctor, he does not have a constitutional
right to be a doctor. This is true of any other calling in which the public interest is
involved; and the closer the link, the longer the bridge to one's ambition. The State has
the responsibility to harness its human resources and to see to it that they are not
dissipated or, no less worse, not used at all. These resources must be applied in a manner
that will best promote the common good while also giving the individual a sense of
satisfaction.
A person cannot insist on being a physician if he will be a menace to his patients. If one
who wants to be a lawyer may prove better as a plumber, he should be so advised and
adviced. Of course, he may not be forced to be a plumber, but on the other hand he may
not force his entry into the bar. By the same token, a student who has demonstrated
promise as a pianist cannot be shunted aside to take a course in nursing, however
appropriate this career may be for others.
The right to quality education invoked by the private respondent is not absolute. The
Constitution also provides that "every citizen has the right to choose a profession or
course of study, subject to fair, reasonable and equitable admission and academic
requirements.6
The private respondent must yield to the challenged rule and give way to those better
prepared. Where even those who have qualified may still not be accommodated in our
already crowded medical schools, there is all the more reason to bar those who, like him,
have been tested and found wanting.
The contention that the challenged rule violates the equal protection clause is not well-
taken. A law does not have to operate with equal force on all persons or things to be
conformable to Article III, Section 1 of the Constitution.
There can be no question that a substantial distinction exists between medical students
and other students who are not subjected to the NMAT and the three-flunk rule. The
medical profession directly affects the very lives of the people, unlike other careers which,
for this reason, do not require more vigilant regulation. The accountant, for example,
while belonging to an equally respectable profession, does not hold the same delicate
responsibility as that of the physician and so need not be similarly treated.
There would be unequal protection if some applicants who have passed the tests are
admitted and others who have also qualified are denied entrance. In other words, what
the equal protection requires is equality among equals.
The Court feels that it is not enough to simply invoke the right to quality education as a
guarantee of the Constitution: one must show that he is entitled to it because of his
preparation and promise. The private respondent has failed the NMAT five times. 7 While
his persistence is noteworthy, to say the least, it is certainly misplaced, like a hopeless
love.
No depreciation is intended or made against the private respondent. It is stressed that a
person who does not qualify in the NMAT is not an absolute incompetent unfit for any work
or occupation. The only inference is that he is a probably better, not for the medical
profession, but for another calling that has not excited his interest.
In the former, he may be a bungler or at least lackluster; in the latter, he is more likely to
succeed and may even be outstanding. It is for the appropriate calling that he is entitled
to quality education for the full harnessing of his potentials and the sharpening of his
latent talents toward what may even be a brilliant future.
We cannot have a society of square pegs in round holes, of dentists who should never
have left the farm and engineers who should have studied banking and teachers who could
be better as merchants.
It is time indeed that the State took decisive steps to regulate and enrich our system of
education by directing the student to the course for which he is best suited as determined
by initial tests and evaluations. Otherwise, we may be "swamped with mediocrity," in the
52 | P a g e
words of Justice Holmes, not because we are lacking in intelligence but because we are a
nation of misfits.
WHEREFORE, the petition is GRANTED. The decision of the respondent court dated January
13, 1989, is REVERSED, with costs against the private respondent. It is so ordered.
G.R. No. 78164 July 31, 1987
TERESITA TABLARIN, MA, LUZ CIRIACO, MA NIMFA B. ROVIRA, EVANGELINA S. LABAO,
in their behalf and in behalf of applicants for admission into the Medical Colleges during
the school year 1987-88 and future years who have not taken or successfully hurdled tile
National Medical Admission Test (NMAT).petitioners,
vs.
THE HONORABLE JUDGE ANGELINA S. GUTIERREZ, Presiding Judge of Branch XXXVII
of the Regional Trial Court of the National Capital Judicial Region with seat at Manila, THE
HONORABLE SECRETARY LOURDES QUISUMBING, in her capacity as Chairman of the
BOARD OF MEDICAL EDUCATION, and THE CENTER FOR EDUCATIONAL MEASUREMENT
(CEM), respondents.
FELICIANO, J.:
The petitioners sought admission into colleges or schools of medicine for the school year
1987-1988. However, the petitioners either did not take or did not successfully take the
National Medical Admission Test (NMAT) required by the Board of Medical Education, one
of the public respondents, and administered by the private respondent, the Center for
Educational Measurement (CEM).
On 5 March 1987, the petitioners filed with the Regional Trial Court, National Capital
Judicial Region, a Petition for Declaratory Judgment and Prohibition with a prayer for
Temporary Restraining Order and Preliminary Injunction. The petitioners sought to enjoin
the Secretary of Education, Culture and Sports, the Board of Medical Education and the
Center for Educational Measurement from enforcing Section 5 (a) and (f) of Republic Act
No. 2382, as amended, and MECS Order No. 52, series of 1985, dated 23 August 1985
and from requiring the taking and passing of the NMAT as a condition for securing
certificates of eligibility for admission, from proceeding with accepting applications for
taking the NMAT and from administering the NMAT as scheduled on 26 April 1987 and in
the future. After hearing on the petition for issuance of preliminary injunction, the trial
court denied said petition on 20 April 1987. The NMAT was conducted and administered as
previously scheduled.
Petitioners accordingly filed this Special Civil Action for certiorari with this Court to set
aside the Order of the respondent judge denying the petition for issuance of a writ of
preliminary injunction.
Republic Act 2382, as amended by Republic Acts Nos. 4224 and 5946, known as the
"Medical Act of 1959" defines its basic objectives in the following manner:
Section 1. Objectives. — This Act provides for and shall govern
(a) the standardization and regulation of medical education (b) the examination
for registration of physicians; and (c) the supervision, control and regulation of the
practice of medicine in the Philippines. (Underscoring supplied)
The statute, among other things, created a Board of Medical Education which is composed
of (a) the Secretary of Education, Culture and Sports or his duly authorized
representative, as Chairman; (b) the Secretary of Health or his duly authorized
representative; (c) the Director of Higher Education or his duly authorized representative;
(d) the Chairman of the Medical Board or his duly authorized representative; (e) a
representative of the Philippine Medical Association; (f) the Dean of the College of
Medicine, University of the Philippines; (g) a representative of the Council of Deans of
Philippine Medical Schools; and (h) a representative of the Association of Philippine
Medical Colleges, as members. The functions of the Board of Medical Education specified in
Section 5 of the statute include the following:
(a) To determine and prescribe equirements for admission into a recognized
college of medicine;
(b) To determine and prescribe requirements for minimum physical facilities of
colleges of medicine, to wit: buildings, including hospitals, equipment and
supplies, apparatus, instruments, appliances, laboratories, bed capacity for
instruction purposes, operating and delivery rooms, facilities for outpatient
services, and others, used for didactic and practical instruction in accordance with
modern trends;
(c) To determine and prescribe the minimum number and minimum qualifications
of teaching personnel, including student-teachers ratio;
(d) To determine and prescribe the minimum required curriculum leading to the
degree of Doctor of Medicine;
(e) To authorize the implementation of experimental medical curriculum in a
medical school that has exceptional faculty and instrumental facilities. Such an
experimental curriculum may prescribe admission and graduation requirements
other than those prescribed in this Act; Provided, That only exceptional students
shall be enrolled in the experimental curriculum;
(f) To accept applications for certification for admission to a medical school and
keep a register of those issued said certificate; and to collect from said applicants
the amount of twenty-five pesos each which shall accrue to the operating fund of
the Board of Medical Education;
(g) To select, determine and approve hospitals or some departments of the
hospitals for training which comply with the minimum specific physical facilities as
provided in subparagraph (b) hereof; and
53 | P a g e
 (h) To promulgate and prescribe and enforce the necessary rules and regulations
for the proper implementation of the foregoing functions. (Emphasis supplied)
Section 7 prescribes certain minimum requirements for applicants to medical schools:
Admission requirements. — The medical college may admit any student who has
not been convicted by any court of competent jurisdiction of any offense involving
moral turpitude and who presents (a) a record of completion of a bachelor's
degree in science or arts; (b) a certificate of eligibility for entrance to a medical
school from the Board of Medical Education; (c) a certificate of good moral
character issued by two former professors in the college of liberal arts; and (d)
birth certificate. Nothing in this act shall be construed to inhibit any college of
medicine from establishing, in addition to the preceding, other entrance
requirements that may be deemed admissible.
xxx xxx x x x (Emphasis supplied)
MECS Order No. 52, s. 1985, issued by the then Minister of Education, Culture and Sports
and dated 23 August 1985, established a uniform admission test called the National
Medical Admission Test (NMAT) as an additional requirement for issuance of a certificate of
eligibility for admission into medical schools of the Philippines, beginning with the school
year 1986-1987. This Order goes on to state that:
2. The NMAT, an aptitude test, is considered as an instrument toward upgrading
the selection of applicants for admission into the medical schools and its calculated
to improve the quality of medical education in the country. The cutoff score for the
successful applicants, based on the scores on the NMAT, shall be determined every
year by the Board of Medical Education after consultation with the Association of
Philippine Medical Colleges. The NMAT rating of each applicant, together with the
other admission requirements as presently called for under existing rules, shall
serve as a basis for the issuance of the prescribed certificate of elegibility for
admission into the medical colleges.
3. Subject to the prior approval of the Board of Medical Education, each medical
college may give other tests for applicants who have been issued a corresponding
certificate of eligibility for admission that will yield information on other aspects of
the applicant's personality to complement the information derived from the NMAT.
xxx xxx xxx
8. No applicant shall be issued the requisite Certificate of Eligibility for Admission
(CEA), or admitted for enrollment as first year student in any medical college,
beginning the school year, 1986-87, without the required NMAT qualification as
called for under this Order. (Underscoring supplied)
Pursuant to MECS Order No. 52, s. 1985, the private respondent Center conducted NMATs
for entrance to medical colleges during the school year 1986-1987. In December 1986 and
in April 1987, respondent Center conducted the NMATs for admission to medical colleges
during the school year 1987.1988.1avvphi1
Petitioners raise the question of whether or not a writ of preliminary injunction may be
issued to enjoin the enforcement of Section 5 (a) and (f) of Republic Act No. 2382, as
amended, and MECS Order No. 52, s. 1985, pending resolution of the issue of
constitutionality of the assailed statute and administrative order. We regard this issue as
entirely peripheral in nature. It scarcely needs documentation that a court would issue a
writ of preliminary injunction only when the petitioner assailing a statute or administrative
order has made out a case of unconstitutionality strong enough to overcome, in the mind
of the judge, the presumption of constitutionality, aside from showing a clear legal right to
the remedy sought. The fundamental issue is of course the constitutionality of the statute
or order assailed.
1. The petitioners invoke a number of provisions of the 1987 Constitution which are, in
their assertion, violated by the continued implementation of Section 5 (a) and (f) of
Republic Act 2381, as amended, and MECS Order No. 52, s. 1985. The provisions invoked
read as follows:
(a) Article 11, Section 11: "The state values the dignity of every human person
and guarantees full respect of human rights. "
(b) ArticleII, Section l3: "The State recognizes the vital role of the youth in nation
building and shall promote and protect their physical, moral, spiritual, intellectual
and social well being. It shall inculcate in the youth patriotism and nationalism,
and encourage their involvement in public and civic affairs."
(c) Article II, Section 17: "The State shall give priority to education, science and
technology, arts, culture and sports to foster patriotism and nationalism,
accelerate social progress and to promote total human liberation and
development. "
(d) Article XIV, Section l: "The State shall protect and promote the right of all
citizens to quality education at all levels and take appropriate steps to make such
education accessible to all. "
(e) Article XIV, Section 5 (3): "Every citizen has a right to select a profession or
course of study, subject to fair, reasonable and equitable admission and academic
requirements."
Article II of the 1987 Constitution sets forth in its second half certain "State policies" which
the government is enjoined to pursue and promote. The petitioners here have not
seriously undertaken to demonstrate to what extent or in what manner the statute and the
administrative order they assail collide with the State policies embodied in Sections 11, 13
and 17. They have not, in other words, discharged the burden of proof which lies upon
54 | P a g e
them. This burden is heavy enough where the constitutional provision invoked is relatively
specific, rather than abstract, in character and cast in behavioral or operational terms.
That burden of proof becomes of necessity heavier where the constitutional provision
invoked is cast, as the second portion of Article II is cast, in language descriptive of basic
policies, or more precisely, of basic objectives of State policy and therefore highly
generalized in tenor. The petitioners have not made their case, even a prima facie case,
and we are not compelled to speculate and to imagine how the legislation and regulation
impugned as unconstitutional could possibly offend the constitutional provisions pointed to
by the petitioners.
Turning to Article XIV, Section 1, of the 1987 Constitution, we note that once more
petitioners have failed to demonstrate that the statute and regulation they assail in fact
clash with that provision. On the contrary we may note-in anticipation of discussion infra
— that the statute and the regulation which petitioners attack are in fact designed to
promote "quality education" at the level of professional schools. When one reads Section 1
in relation to Section 5 (3) of Article XIV as one must one cannot but note that the latter
phrase of Section 1 is not to be read with absolute literalness. The State is not really
enjoined to take appropriate steps to make quality education " accessible to all who might
for any number of reasons wish to enroll in a professional school but rather merely to
make such education accessible to all who qualify under "fair, reasonable and equitable
admission and academic requirements. "
2. In the trial court, petitioners had made the argument that Section 5 (a) and (f) of
Republic Act No. 2382, as amended, offend against the constitutional principle which
forbids the undue delegation of legislative power, by failing to establish the necessary
standard to be followed by the delegate, the Board of Medical Education. The general
principle of non-delegation of legislative power, which both flows from the reinforces the
more fundamental rule of the separation and allocation of powers among the three great
departments of government,1 must be applied with circumspection in respect of statutes
which like the Medical Act of 1959, deal with subjects as obviously complex and technical
as medical education and the practice of medicine in our present day world. Mr. Justice
Laurel stressed this point 47 years ago in Pangasinan Transportation Co., Inc. vs. The
Public Service Commission:2
One thing, however, is apparent in the development of the principle of separation
of powers and that is that the maxim of delegatus non potest delegare or delegate
potestas non potest delegare, adopted this practice (Delegibus et Consuetudiniis
Anglia edited by G.E. Woodbine, Yale University Press, 1922, Vol. 2, p. 167) but
which is also recognized in principle in the Roman Law (d. 17.18.3) has been made
to adapt itself to the complexities of modern government, giving rise to the
adoption, within certain limits of the principle of "subordinate legislation," not only
in the United States and England but in practically all modern governments.
(People vs. Rosenthal and Osmena [68 Phil. 318, 1939]. Accordingly, with the
growing complexity of modern life, the multiplication of the subjects of
governmental regulation and the increased difficulty of administering the laws,
there is a constantly growing tendency toward the delegation of greater power by
the legislature, and toward the approval of the practice by the courts." 3
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. Ericta4 —
The standard may be either expressed or implied. If the former, the non-
delegation objection is easily met. The standard though does not have to be
spelled out specifically. It could be implied from the policy and purpose of the act
considered as a whole. In the Reflector Law, clearly the legislative objective is
public safety. What is sought to be attained as in Calalang v. Williams is "safe
transit upon the roads. 5
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.
3. The petitioners also urge that the NMAT prescribed in MECS Order No. 52, s. 1985, is
an "unfair, unreasonable and inequitable requirement," which results in a denial of due
process. Again, petitioners have failed to specify just what factors or features of the NMAT
render it "unfair" and "unreasonable" or "inequitable." They appear to suggest that
passing the NMAT is an unnecessary requirement when added on top of the admission
requirements set out in Section 7 of the Medical Act of 1959, and other admission
requirements established by internal regulations of the various medical schools, public or
private. Petitioners arguments thus appear to relate to utility and wisdom or desirability of
the NMAT requirement. But constitutionality is essentially a question of power or
authority: this Court has neither commission or competence to pass upon questions of the
desirability or wisdom or utility of legislation or administrative regulation. Those questions
must be address to the political departments of the government not to the courts.
There is another reason why the petitioners' arguments must fail: the legislative and
administrative provisions impugned by them constitute, to the mind of the Court, a valid
exercise of the police power of the state. The police power, it is commonplace learning, is
the pervasive and non-waivable power and authority of the sovereign to secure and
promote an the important interests and needs — in a word, the public order — of the
general community.6 An important component of that public order is the health and
physical safety and well being of the population, the securing of which no one can deny is
a legitimate objective of governmental effort and regulation.7
Perhaps the only issue that needs some consideration is whether there is some reasonable
relation between the prescribing of passing the NMAT as a condition for admission to
medical school on the one hand, and the securing of the health and safety of the general
community, on the other hand. This question is perhaps most usefully approached by
recalling that the regulation of the practice of medicine in all its branches has long been
recognized as a reasonable method of protecting the health and safety of the public.8 That
the power to regulate and control the practice of medicine includes the power to regulate
admission to the ranks of those authorized to practice medicine, is also well recognized.
thus, legislation and administrative regulations requiring those who wish to practice
55 | P a g e
medicine first to take and pass medical board examinations have long ago been
recognized as valid exercises of governmental power.9 Similarly, the establishment of
minimum medical educational requirements — i.e., the completion of prescribed courses in
a recognized medical school — for admission to the medical profession, has also been
sustained as a legitimate exercise of the regulatory authority of the state.10 What we have
before us in the instant case is closely related: the regulation of access to medical schools.
MECS Order No. 52, s. 1985, as noted earlier, articulates the rationale of regulation of this
type: the improvement of the professional and technical quality of the graduates of
medical schools, by upgrading the quality of those admitted to the student body of the
medical schools. That upgrading is sought by selectivity in the process of admission,
selectivity consisting, among other things, of limiting admission to those who exhibit in the
required degree the aptitude for medical studies and eventually for medical practice. The
need to maintain, and the difficulties of maintaining, high standards in our professional
schools in general, and medical schools in particular, in the current stage of our social and
economic development, are widely known.
We believe that the government is entitled to prescribe an admission test like the NMAT as
a means for achieving its stated objective of "upgrading the selection of applicants into
[our] medical schools" and of "improv[ing] the quality of medical education in the
country." Given the widespread use today of such admission tests in, for instance, medical
schools in the United States of America (the Medical College Admission Test [MCAT]11 and
quite probably in other countries with far more developed educational resources than our
own, and taking into account the failure or inability of the petitioners to even attempt to
prove otherwise, we are entitled to hold that the NMAT is reasonably related to the
securing of the ultimate end of legislation and regulation in this area. That end, it is useful
to recall, is the protection of the public from the potentially deadly effects of incompetence
and ignorance in those who would undertake to treat our bodies and minds for disease or
trauma.
4. Petitioners have contended, finally, that MECS Order No. 52, s. 1985, is in conflict with
the equal protection clause of the Constitution. More specifically, petitioners assert that
that portion of the MECS Order which provides that
the cutoff score for the successful applicants, based on the scores on the
NMAT, shall be determined every-year by the Board of Medical 11 Education after
consultation with the Association of Philippine Medical Colleges. (Emphasis
supplied)
infringes the requirements of equal protection. They assert, in other words, that students
seeking admission during a given school year, e.g., 1987-1988, when subjected to a
different cutoff score than that established for an, e.g., earlier school year, are
discriminated against and that this renders the MECS Order "arbitrary and capricious." The
force of this argument is more apparent than real. Different cutoff scores for different
school years may be dictated by differing conditions obtaining during those years. Thus,
the appropriate cutoff score for a given year may be a function of such factors as the
number of students who have reached the cutoff score established the preceding year; the
number of places available in medical schools during the current year; the average score
attained during the current year; the level of difficulty of the test given during the current
year, and so forth. To establish a permanent and immutable cutoff score regardless of
changes in circumstances from year to year, may wen result in an unreasonable rigidity.
The above language in MECS Order No. 52, far from being arbitrary or capricious, leaves
the Board of Medical Education with the measure of flexibility needed to meet
circumstances as they change.
We conclude that prescribing the NMAT and requiring certain minimum scores therein as a
condition for admission to medical schools in the Philippines, do not constitute an
unconstitutional imposition.
WHEREFORE, the Petition for certiorari is DISMISSED and the Order of the respondent trial
court denying the petition for a writ of preliminary injunction is AFFIRMED. Costs against
petitioners.
SO ORDERED.
G.R. No. L-38025 August 20, 1979
DANTE O. CASIBANG, petitioner,
vs.
HONORABLE NARCISO A. AQUINO, Judge of the Court of First Instance of
Pangasinan, Branch XIV, and REMEGIO P. YU, respondents.
MAKASIAR, J.:
Respondent Remigio P. Yu was proclaimed on November 9, 1971 as the elected Mayor of
Rosales, Pangasinan in the 1971 local elections, by a plurality of 501 votes over his only
rival, herein petitioner, who seasonably filed on November 24, 1971 a protest against the
election of the former with the Court of First Instance of Pangasinan, on the grounds of (1)
anomalies and irregularities in the appreciation, counting and consideration of votes in
specified electoral precincts; (2) terrorism; (3) rampant vote buying; (4) open voting or
balloting; and (5) excessive campaign expenditures and other violations of the 1971
Election Code.
Respondent Yu filed on November 29, 1971 his answer and counter-protest which
petitioner answered on December 10, 1971. However, respondent Yu withdrew his
counter-protest after waiving the opening and revision of the ballot boxes specified
therein.
Proceedings therein continued with respect to the election protest of petitioner before the
Court of First Instance of Pangasinan, Branch XIV, presided by respondent Judge, who
initially took cognizance of the same as it is unquestionably a justiciable controversy.
56 | P a g e
In the meantime or on September 21, 1972, the incumbent President of the Republic of
the Philippines issued Proclamation No. 1081, placing the entire country under Martial
Law; and two months thereafter, more or less, or specifically on November 29, 1972, the
1971 Constitutional Convention passed and approved a Constitution to supplant the 1935
Constitution; and the same was thereafter overwhelmingly ratified by the sovereign people
of the Republic of the Philippines on January 17, 1973; and on March 31, 1973, this Court
declared that "there is no further judicial obstacle to the new Constitution being
considered in force and effect" (Javellana vs. Executive Secretary, 50 SCRA 30 [1973]).
Thereafter or on October 10, 1973, at which time petitioner had already completed
presenting his evidence and in fact had rested his case, respondent Yu moved to dismiss
the election protest of petitioner on the ground that the trial court had lost jurisdiction
over the same in view of the effectivity of the 1973 Constitution by reason of which —
principally) Section 9 of Article XVII [Transitory Provisions] and Section 2 of Article XI — a
political question has intervened in the case. Respondent Yu contended that "... the
provisions in the 1935 Constitution relative to all local governments have been superseded
by the 1973 Constitution. Therefore, all local government should adhere to our
parliamentary form of government. This is clear in the New Constitution under its Article
XI." He further submitted that local elective officials (including mayors) have no more
four-year term of office. They are only in office at the pleasure of the appointing power
embodied in the New Constitution, and under Section 9 of Article XVII.
Petitioner vigorously opposed the motion to dismiss, and, relying mainly on Sections 7 and
8 of Article XVII (Transitory Provisions) of the New Constitution and G.O. No. 3, contended
that the New Constitution did not divest the Court of First Instance of its jurisdiction to
hear and decide election protests pending before them at the time of its ratification and
effectivity; that the ratification of the New Constitution and its effectivity did not
automatically abolish the office and position of municipal mayor nor has it automatically
cut short the tenure of the office, so as to render the issue as to who is the lawfully
elected candidate to said office or position moot and academic; that election protests
involve public interest such that the same must be heard until terminated and may not be
dismissed on mere speculation that the office involved may have been abolished, modified
or reorganized; and that the motion to dismiss was filed manifestly for delay.
Respondent Yu replied pointing out, among others, that petitioner failed to refute the issue
of political question; and reiterated his stand, expanding his arguments on the political
question, thus:
It is an undeniable fact that this case has its source from the 1971
elections for municipal mayoralty. Unsatisfied with the counting of votes
held by the Board of Canvassers, the herein protestant filed this present
case. And before the termination of the same and pending trial, the
Filipino people in the exercise of their free will and sovereign capacity
approved a NEW CONSTITUTION, thus a NEW FORM OF GOVERNMENT-
PARLIAMENTARY IN FORM was enforced. We find this provision under
Article XI of the New Constitution, which provides:
SEC. 2. The National Assembly shall enact a local
government code which may not thereafter be amended
except by a majority vote of all its members, defining a
more responsive and accountable local government
structure with an effective system of recall, allocating
among the different local government units their powers,
responsibilities, and resources, and providing for the
qualifications, election and removal, term, salaries,
powers, functions, and duties of local officials, and all other
matters relating to the organization and operation of the
local units. However, any change in the existing form of
local government shall not take effect until ratified by a
majority of the votes cast in a plebiscite called for the
purpose.
It is respectfully submitted that the contention of the protestant to the
effect that the New Constitution "shows that the office of the Municipal
Mayor has not been abolished ... ," is not ACCURATE. Otherwise, the
provisions of Section 9 of Article XVII, is meaningless.
All officials and employees in the existing Government of
the Republic shall continue in office until otherwise
provided by law or decreed by the incumbent President of
the Philippines, ...
In the above-quoted provision is the protection of the officials and
employees working in our government, otherwise, by the force of the New
Constitution they are all out of the government offices. In fact, in the case
above-cited (Javellana) we are all performing our duties in accordance
with the New Constitution.
Therefore, election cases of the 1935 Constitution being interwoven in the
political complexion of our new Constitution should be dismissed because
only those incumbent official and employees existing in the new
government are protected by the transitional provisions of the New
Fundamental Law of the Land. The protestant, we respectfully submit, is
not covered by the provisions of Section 9 Article XVII of the Constitution.
And in case he will win in this present case he has no right to hold the
position of mayor of the town of Rosales, Pangasinan, because he was not
then an official of the government at the time the New Constitution was
approved by the Filipino People. His right if proclaimed a winner is derived
from the 1935 Constitution which is changed by the Filipino people.
On December 18, 1973, the trial court, presided by respondent Judge, sustained the
political question theory of respondent Yu and ordered the dismissal of the electoral
protest. Thus:
57 | P a g e
There is no dispute that the Filipino people have accepted and submitted
to a new Constitution to replace the 1935 Constitution, and that we are
now living under its aegis and protection. ...
xxx xxx xxx
Under Section 9, Article XVII, of the new Constitution, above-quoted, only
those officials and employees of the existing Government of the Republic
of the Philippines like the protestee herein, are given protection and are
authorized to continue in office at the pleasure of the incumbent President
of the Philippines, while under Section 2 of Article XI of the new
Constitution, also above-quoted, the intention of completely revamp the
whole local government structure, providing for different qualifications,
election and removal, term, salaries, powers, functions, and duties, is very
clear. These present questions of policy, the necessity and expediency of
which are outside the range of judicial review. With respect to the fate of
incumbent oficials and employees in the existing Government of the
Republic of the Philippines, as well as to the qualifications, election and
removal, term of office, salaries, and powers of all local officials under the
parliamentary form of government — these have been entrusted or
delegated by the sovereign people or has reserved it to be settled by the
incumbent Chief Executive or by the National Assembly with full
discretionary authority therefor. As if to supplement these delegated
powers, the people have also decreed in a referendum the suspension of
all elections. Thus, in the United States, questions relating to what persons
or organizations constituted the lawful government of a state of the Union
(Luther vs. Borden, 7 How. 1, 12, L. Ed 58), and those relating to the
political status of a state (Highland Farms Dairy vs. Agnew, 57 S. et 549,
300 U.S. 608, 81 L.ed 835), have been held to be political and for the
judiciary to determine.
To the mind of the Court, therefore, the ratification and effectivity of the
new Constitution has tainted this case with a political complexion above
and beyond the power of judicial review. As fittingly commented by Mr.
Justice Antonio in a separate opinion in the Javellana, et al. cases, 69 0. G.
No. 36, September 3, 1973, p. 8008:
The essentially political nature of the question is at once
manifest by understanding that in the final analysis, what
is assailed is not merely the validity of Proclamation No.
1102 of the President, which is merely declaratory of the
fact of the approval or ratification, but the legitimacy of
the government. It is addressed more to the frame-work
and political character of this government which now
functions under the new Charter. It seeks to nullify a
Constitution that is already effective. In other words,
where a complete change in the fundamental law has been
effected through political action, the Court whose existence
is affected by such a change is, in the words of Mr. Meville
Fuller Weston "precluded from passing upon the fact of
change by a logical difficulty which is not to be surmounted
as the change relates to the existence of a prior point in
the Court's "chain of title" to its authority and "does not
relate merely to a question of the horizontal distribution of
powers." It involves a matter which 'the sovereign has
entrusted to the so-called political departments or has
reserved to be settled by its own extra-governmental
action." The present Government functions under the new
Constitution which has become effective through political
action. Judicial power presupposes an established
government and an effective constitution. If it decides at
all as a court, it necessarily affirms the existence and
authority of the Government under which it is exercising
judicial power.
The Court is not unaware of provisions of the new Constitution, particularly
Sections 7 and 8, Article XVII (Transitory Provisions) decreeing that all
existing laws not inconsistent with the new Constitution shall remain
operative until amended, modified, or repealed by the National Assembly,
and that all courts existing at the time of the ratification of the said new
Constitution shall continue and exercise their jurisdiction until otherwise
provided by law in accordance with the new Constitution, and all cases
pending in said courts shall be heard, tried and determined under the laws
then in force. Again, to the mind of the Court, these refer to matters
raised in the enforcement of existing laws or in the invocation of a court's
jurisdiction which have not been "entrusted to the so-called political
department or has reserved to be settled by its own extra governmental
action.
Hence, this petition.
We reverse.
The thrust of the aforesaid political question theory of respondent Yu is that the 1973
Constitution, through Section 9 of Article XVII thereof, protected only those incumbents,
like him, at the time of its ratification and effectivity and are the only ones authorized to
continue in office and their term of office as extended now depends on the pleasure of, as
the same has been entrusted or committed to, the incumbent President of the Philippines
or the Legislative Department; and that Section 2 of Article XI thereof entrusted to the
National Assembly the revamp of the entire local government structure by the enactment
of a local government code, thus presenting a question of policy, the necessity and
expediency of which are outside the range of judicial review. In short, for the respondent
Judge to still continue assuming jurisdiction over the pending election protest of petitioner
is for him to take cognizance of a question or policy "in regard to which full discretionary
authority has been delegated to the Legislative or Executive branch of the government."
58 | P a g e
I presidential decree terminates his tenure of office pursuant to said Section 9 of Article
XVII of the 1973 Constitution" (Euipilag, supra).
There is an imperative need to re-state pronouncements of this Court on the new
Constitution which are decisive in the resolution of the political question theory of 5. That "there is a difference between the 'term' of office and the 'right' to hold an office. A
respondent Yu. 'term' of office is the period during winch an elected officer or appointee is entitled to hold
office, perform its functions and enjoy its privileges and emoluments. A 'right' to hold a
WE ruled: public office is the just and legal claim to hold and enjoy the powers and responsibilities of
the office. In other words, the 'term' refers to the period, duration of length of time during
which the occupant of an office is .entitled to stay therein whether such period be definite
1. That Section 9 of Article XVII of the 1973 Constitution did not render moot and
or indefinite. Hence, although Section 9, Article XVII of the New Constitution made the
academic pending election protest cases (Santos vs. Castañeda, 65 SCRA 114 [1975];
term of the petitioners indefinite, it did not foreclose any challenge by the herein
Euipilag vs. Araula, 60 SCRA 211 [1974]; Nunez vs. Averia, 57 SCRA 726 [1974]; Parades
petitioners, in an election protest, of the 'right' of the private respondents to continue
vs. Abad, L-36927, Sunga vs. Mosueda, L-37715, Valley vs. Caro, L-38331, 56 SCRA 522,
holding their respective office. What has been directly affected by said constitutional
[1974]).
provision is the 'term' to the office, although the 'right' of the incumbent to an office which
he is legally holding is co-extensive with the 'term' thereof," and that "it is erroneous to
2. That "the constitutional grant of privilege to continue in office, made by the new conclude that under Section 9, Article XVII of the New Constitution, the term of office of
Constitution for the benefit of persons who were incumbent officials or employees of the the private respondents expired, and that they are now holding their respective offices
Government when the new Constitution took effect, cannot be fairly construed as under a new term. We are of the opinion that they hold their respective offices still under
indiscriminately encompassing every person who at the time happened to be performing the term to which they have been elected, although the same is now indefinite" (Parades,
the duties of an elective office, albeit under protest or contest" and that "subject to the Sunga and Valley cases, supra).
constraints specifically mentioned in Section 9, Article XVII of the Transitory Provisions, it
neither was, nor could have been the intention of the framers of our new fundamental law
6. That the New Constitution recognized the continuing jurisdiction of courts of first
to disregard and shunt aside the statutory right of a condidate for elective position who,
instance to hear, try and decide election protests: "Section 7 of Article XVII of the New
within the time-frame prescribed in the Election Code of 1971, commenced proceedings
Constitution provides that 'all existing laws not inconsistent with this Constitution shall
beamed mainly at the proper determination in a judicial forum of a proclaimed candidate-
remain operative until amended, modified or repealed by the National Assembly. 'And
elect's right to the contested office."' (Santos vs. Castañeda, supra); and We rationalized
there has been no amendment, modification or repeal of Section 220 of the Election Code
that "the Constitutional Convention could not have intended, as in fact it .did not intend,
of 1971 which gave the herein petitioners the right to file an election contest against those
to shielf or protect those who had been unduly elected. To hold that the right of the herein
proclaimed elected," and "according to Section 8, Article XVII of the New Constitution 'all
private respondents to the respective offices which they are now holding, may no longer
courts existing at the time of the ratification of this Constitution shall continue and
be subject to question, would be tantamount to giving a stamp of approval to what could
exercise their jurisdiction until otherwise provided by law in accordance with this
have been an election victory characterized by fraud, threats, intimidation, vote buying, or
Constitution, and all cases pending in said courts shall be heard, tried and determined
other forms of irregularities prohibited by the Election Code to preserve inviolate the
under the laws then in force.' Consequently, the Courts of First Instance presided over by
sanctity of the ballot." (Parades, Sunga and Valley cases, supra).
the respondent-Judges should continue and exercise their jurisdiction to hear, try and
decide the election protests filed by herein petitioners" (Santos, Euipilag, Nunez, Parades,
3. That "the right of the private respondents (protestees) to continue in office indefinitely Sunga and Valley cases, supra).
arose not only by virtue of Section 9 of Article XVII of the New Constitution but principally
from their having been proclaimed elected to their respective positions as a result of the
While under the New Constitution the Commission on Elections is now the sole judge of all
November 8, 1971 elections. Therefore, if in fact and in law, they were not duly elected to
contests relating to the elections, returns, and qualifications of members of the National
their respective positions and consequently, have no right to hold the same, perform their
Assembly as well as elective provincial and city officials (par. 2 of Sec. 2, Article XII-C of
functions, enjoy their privileges and emoluments, then certainly, they should not be
the 1973 Constitution), such power does not extend to electoral contests concerning
allowed to enjoy the indefinite term of office given to them by said constitutional
municipal elective positions.
provision" (Parades, Sunga and Valley cases, supra).

7. That General Order No. 3, issued by the President of the Philippines merely reiterated
4. That "until a subsequent law or presidential decree provides otherwise, the right of
his powers under Section 9 of Article XVII of the New Constitution. The President did not
respondent (protestee) to continue as mayor rests on the legality of his election which has
intend thereby to modify the aforesaid constitutional provision (Euipilag, supra).
been protested by herein petitioner. Should the court decide adversely against him the
electoral protest, respondent (protestee) would cease to be mayor even before a law or

59 | P a g e
General Order No. 3, as amended by General Order No. 3-A, does not expressly include
electoral contests of municipal elective positions as among those removed from the
jurisdiction of the courts; for said General Order, after affirming the jurisdiction of the
Judiciary to decide in accordance with the existing laws on criminal and civil cases, simply
removes from the jurisdiction of the Civil Court certain crimes specified therein as well as
the validity, legality or constitutionality of any decree, order or acts issued by the
President or his duly designated representative or by public servants pursuant to his
decrees and orders issued under Proclamation No. 1081.
8. That General Order No. 3 may not be invoked by the courts to avoid exercise of their
jurisdiction because to do co "is nothing short of unwarranted abdication of judicial',
authority, which no judge duly imbued with the implications of the paramount principle of
independence of the judiciary should ever think of doing. It is unfortunate indeed that
respondent Judge is apparently unaware that it is a matter of highly significant historical
fact that this Court has always deemed General Order No. 3 including its amendment by
General Order No. 3-A as practically inoperative even in the light of Proclamation No. 1081
of September 21, 1972 and Proclamation No. 1104 of January 17, 1973, placing the whole
Philippines under martial law. While the members of the Court are not agreed on whether
or not particular instances of attack against the validity of certain Presidential decrees
raise political questions which the Judiciary would not interfere with, there is unanimity
among Us in the view that it is for the Court rather than the Executive to determine
whether or not We may take cognizance of any given case involving the validity of acts of
the Executive Department purportedly under the authority of the martial law
proclamations" (Lina vs. Purisima, 3 PHILAJUR 605, 610-611, 82 SCRA 344 [1978]).
1. In the light of the foregoing pronouncements, We hold that the electoral protest case
herein involved has remained a justiciable controversy. No political question has ever been
interwoven into this case. Nor is there any act of the incumbent President or the
Legislative Department to be indirectly reviewed or interfered with if the respondent Judge
decides the election protest. The term "political question" connotes what it means in
ordinary parlance, namely, a question of policy. It refers to those questions which under
the Constitution, are to be decided by the people in their sovereign capacity; or in regard
to which full discretionary authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure" (Tañada vs. Cuenco, L-1052, Feb. 28, 1957). A broader
definition was advanced by U.S. Supreme Court Justice Brennan in Baker vs. Carr (369
U.S. 186 [1962]): "Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of respect due coordinate
branches of the government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question" (p. 217). And Chief Justice
Enrique M. Fernando, then an Associate Justice, of this Court fixed the limits of the term,
thus: "The term has been made applicable to controversies clearly non-judicial and
therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to
its cognizance, as to which there has been a prior legislative or executive determination to
which deference must be paid (Cf. Vera vs. Avelino, 77 Phil. 192 [1946]; Lopez vs. Roxas,
L-25716, July 28, 1966, 17 SCRA 756; Gonzales vs. Commission on Elections, L-28196,
Nov. 9, 1967, 21 SCRA 774). It 'has likewise been employed loosely to characterize a suit
where the party proceeded against is the President or Congress, or any branch thereof (Cf.
Planas vs. Gil, 67 Phil. 62 [1937]; Vera vs. Avelino, 77 Phil. 192 [1946]). If to be delimited
with accuracy; 'political questions' should refer to such as would under the Constitution be
decided by the people in their sovereign capacity or in regard to which full discretionary
authority is vested either in the President or Congress. It is thus beyond the competence
of the judiciary to pass upon. ..." (Lansang vs. Garcia, 42 SCRA 448, 504-505 [1971]).
2. The only issue in the electoral protest case dismissed by respondent Judge on the
ground of political question is who between protestant — herein petitioner — and
protestee — herein respondent Yu — was the duly elected mayor of Rosales, Pangasinan,
and legally entitled to enjoy the rights, privileges and emoluments appurtenant thereto
and to discharge the functions, duties and obligations of the position. If the protestee's
election is upheld by the respondent Judge, then he continues in office; otherwise, it is the
protestant, herein petitioner. That is the only consequence of a resolution of the issue
therein involved — a purely justiciable question or controversy as it implies a given right,
legally demandable and enforceable, an act or ommission violative of said right, and a
remedy, granted or sanctioned by law, for said breach of right (Tan vs. Republic, 107 Phil.
632-633 [1960]). Before and after the ratification and effectivity of the New Constitution,
the nature of the aforesaid issue as well as the consequences of its resolution by the
Court, remains the same as above-stated.
3. Any judgment to be made on that issue will not in any way collide or interfere with the
mandate of Section 9 of Article XVII of the New Constitution, as it will merely resolve who
as between protestant and protestee is the duly elected mayor of Rosales, Pangasinan;
hence, entitled to enjoy the extended term as mandated by said provision of the New
Constitution. As construed by this Court, the elective officials referred to in Section 9 of
Article XVII are limited to those duly elected as the right to said extended term was not
personal to whosoever was incumbent at the time of the ratification and effectivity of the
New Constitution. Nor would such judgment preempt, collide or interfere with the power or
discretion entrusted by the New Constitution to the incumbent President or the Legislative
Department, with respect to the extended term of the duly elected incumbents; because
whoever between protestant and protestee is declared the duly elected mayor will be
subject always to whatever action the President or the Legislative Department will take
pursuant thereto.
4. Neither does Section 2 of Article XI stigmatize the issue in that electoral protest case
with a political color. For simply, that section allocated unto the National Assembly the
power to enact a local government code "which may not thereafter be amended except by
a majority of all its Members, defining a more responsive and accountable local
government allocating among the different local government units their powers,
responsibilities, and resources, and providing for their qualifications, election and removal,
term, salaries, powers, functions and duties of local officials, and all other matters relating
to the organization and operation of the local units" but "... any change in the existing
form of local government shall not take effect until ratified by a majority of the votes cast
60 | P a g e
in a plebiscite called for the purpose." It is apparent at once that such power committed
by the New Constitution to the National Assembly will not be usurped or preempted by
whatever ruling or judgment the respondent Judge will render in the electoral protest
case. Whoever will prevail in that contest will enjoy the indefinite term of the disputed
office of mayor of Rosales, Pangasinan in the existing set-up of local government in this
country; subject always to whatever change or modification the National Assembly will
introduce when it will enact the local government code.
The construction made by respondent Judge of Sections 7 and 8 of Article XVII of the New
Constitution "... that these refer to matters raised in the enforcement of existing laws or in
the invocation of a court's jurisdiction which have not been 'entrusted to the so-called
political department or reserved to be settled by its own extra-governmental action,"'
strained as it is, cannot be sustained in view of the result herein reached on the issue of
political question as well as Our previous pronouncements as above restated on the same
Sections 7 and 8 of the New Constitution.
WHEREFORE, RESPONDENT COURT'S ORDER OF DISMISSAL IS HEREBY SET ASIDE AND
THE RESPONDENT COURT IS DIRECTED TO IMMEDIATELY PROCEED WITH THE TRIAL AND
DETERMINATION OF THE ELECTION PROTEST BEFORE IT ON THE MERITS. THIS
DECISION SHALL BE IMMEDIATELY EXECUTORY UPON PROMULGATION HEREOF. NO
COSTS.
G.R. No. L-10520 February 28, 1957
LORENZO M. TAÑADA and DIOSDADO MACAPAGAL, petitioners,
vs.
MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO CRUZ, CATALINA
CAYETANO, MANUEL SERAPIO, PLACIDO REYES, and FERNANDO HIPOLITO in his
capacity as cashier and disbursing officer,respondents.
CONCEPCION, J.:
Petitioner Lorenzo M. Tañada is a member of the Senate of the Philippines, and President
of the Citizens Party, whereas petitioner Diosdado Macapagal, a member of the House of
Representatives of the Philippines, was one of the official candidates of the Liberal Party
for the Senate, at the General elections held in November, 1955, in which Pacita Madrigal
Warns, Lorenzo Sumulong, Quintin Paredes, Francisco Rodrigo, Pedro Sabido, Claro M.
Recto, Domocao Alonto and Decoroso Rosales, were proclaimed elected. Subsequently, the
elections of this Senators-elect-who eventually assumed their respective seats in the
Senate-was contested by petitioner Macapagal, together with Camilo Osias, Geronima
Pecson, Macario Peralta, Enrique Magalona, Pio Pedrosa and William Chiongbian-who had,
also, run for the Senate, in said election-in Senate Electoral Case No. 4, now pending
before the Senate Electoral Tribunal. .
The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano
Primicias, on behalf of the Nacionalista Party, chose Senators Jose P. Laurel, Fernando
Lopez and Cipriano Primicias, as members of the Senate Electoral Tribunal. Upon
nomination of petitioner Senator Tañada, on behalf of the Citizens Party, said petitioner
was next chosen by the Senate as member of said Tribunal. Then, upon nomination of
Senator Primicias on behalf of the Committee on Rules of the Senate, and over the
objections of Senators Tañada and Sumulong, the Senate choose respondents Senators
Mariano J. Cuenco and Francisco A. Delgado as members of the same Electoral Tribunal.
Subsequently, the Chairman of the latter appointed: (1) Alfredo Cruz and Catalina
Cayetano, as technical assistant and private secretary, respectively, to Senator Cuenco, as
supposed member of the Senate Electoral Tribunal, upon his recommendation of said
respondent; and (2) Manuel Serapio and Placido Reyes, as technical assistant and private
secretary, respectively to Senator Delgado, as supposed member of said Electoral
Tribunal, and upon his recommendation.
Soon, thereafter, Senator Lorenzo M. Tañada and Congressman Diosdado Macapagal
instituted the case at bar against Senators Cuenco and Delgado, and said Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido Reyes, as well as Fernando Hipolito, in his
capacity as Cashier and Disbursing Officer of the Senate Electoral Tribunal. Petitioners
allege that on February 22, 1956, as well as at present, the Senate consists of 23
Senators who belong to the Nacionalista Party, and one (1) Senator-namely, petitioner,
Lorenzo M. Tañada-belonging to the Citizens Party; that the Committee on Rules for the
Senate, in nominating Senators Cuenco and Delgado, and the Senate, in choosing these
respondents, as members of the Senate Electoral Tribunal, had "acted absolutely without
power or color of authority and in clear violation .. of Article VI, Section 11 of the
Constitution"; that "in assuming membership in the Senate Electoral Tribunal, by taking
the corresponding oath of office therefor", said respondents had "acted absolutely without
color of appointment or authority and are unlawfully, and in violation of the Constitution,
usurping, intruding into and exercising the powers of members of the Senate Electoral
Tribunal"; that, consequently, the appointments of respondents, Cruz, Cayetano, Serapio
and Reyes, as technical assistants and private secretaries to Senators Cuenco and
Delgado-who caused said appointments to be made-as members of the Senate Electoral
Tribunal, are unlawful and void; and that Senators Cuenco and Delgado "are threatening
and are about to take cognizance of Electoral Case No. 4 of the Senate Electoral Tribunal,
as alleged members thereof, in nullification of the rights of petitioner Lorenzo M. Tañada,
both as a Senator belonging to the Citizens Party and as representative of the Citizens
Party in the Senate Electoral Tribunal, and in deprivation of the constitutional rights of
petitioner Diosdado Macapagal and his co-protestants to have their election protest tried
and decided-by an Electoral Tribunal composed of not more than three (3) senators
chosen by the Senate upon nomination of the party having the largest number of votes in
the Senate and not more than the (3) Senators upon nomination of the Party having the
second largest number of votes therein, together, three (3) Justice of the Supreme Court
to be designated by the Chief Justice, instead of by an Electoral Tribunal packed with five
members belonging to the Nacionalista Party, which is the rival party of the Liberal Party,
to which the Petitioner Diosdado Macapagal and his co-protestants in Electoral Case No. 4
belong, the said five (5) Nacionalista Senators having been nominated and chosen in the
manner alleged.. hereinabove.".
Petitioners pray that:.
"1. Upon petitioners' filing of bond in such amount as may be determined by this
Honorable Court, a writ of preliminary injunction be immediately issued directed to
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respondents Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, restraining them from continuing to usurp, intrude into
and/ or hold or exercise the said public offices respectively being occupied by them in the
Senate Electoral Tribunal, and to respondent Fernando Hipolito restraining him from
paying the salaries of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and
Placido Reyes, pending this action.
"2. After hearing, judgment be rendered ousting respondent Mariano J. Cuenco Francisco
A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes from the
aforementioned public offices in the Senate Electoral Tribunal and that they be altogether
excluded therefrom and making the Preliminary injunction permanent, with costs against
the respondents.".
Respondents have admitted the main allegations of fact in the petition, except insofar as it
questions the legality, and validity of the election of respondents Senators Cuenco and
Delgado, as members of the Senate Electoral Tribunal, and of the appointment of
respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes as
technical assistants and private secretaries to said respondents Senators. Respondents,
likewise, allege, by way of special and affirmative defenses, that: (a) this Court is without
power, authority of jurisdiction to direct or control the action of the Senate in choosing the
members of the Electoral Tribunal; and (b) that the petition states no cause of action,
because "petitioner Tañada has exhausted his right to nominate after he nominated
himself and refused to nominate two (2) more Senators", because said petitioner is in
estoppel, and because the present action is not the proper remedy. .
I. Respondents assail our jurisdiction to entertain the petition, upon the ground that the
power to choose six (6) Senators as members of the Senate Electoral Tribunal has been
expressly conferred by the Constitution upon the Senate, despite the fact that the draft
submitted to the constitutional convention gave to the respective political parties the right
to elect their respective representatives in the Electoral Commission provided for in the
original Constitution of the Philippines, and that the only remedy available to petitioners
herein "is not in the judicial forum", but "to bring the matter to the bar of public opinion.".
We cannot agree with the conclusion drawn by respondents from the foregoing facts. To
begin with, unlike the cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera vs. Avelino
(77 Phil., 192)-relied upon by the respondents this is not an action against the Senate,
and it does not seek to compel the latter, either directly or indirectly, to allow the
petitioners to perform their duties as members of said House. Although the Constitution
provides that the Senate shall choose six (6) Senators to be members of the Senate
Electoral Tribunal, the latter is part neither of Congress nor of the Senate. (Angara vs.
Electoral Commission, 63 Phil., 139, Suanes vs. Chief Accountant, 81 Phil., 818; 46 Off.
Gaz., 462.).
Secondly, although the Senate has, under the Constitution, the exclusive power to choose
the Senators who shall form part of the Senate Electoral Tribunal, the fundamental law
has prescribed the manner in which the authority shall be exercised. As the author of a
very enlightening study on judicial self-limitation has aptly put it:.
"The courts are called upon to say, on the one hand, by whom certain powers shall be
exercised, and on the other hand, to determine whether the powers possessed have been
validly exercised. In performing the latter function, they do not encroach upon the powers
of a coordinate branch of the, government, since the determination of the validity of an
act is not the same, thing as the performance of the act. In the one case we are seeking
to ascertain upon whom devolves the duty of the particular service. In the other case we
are merely seeking to determine whether the Constitution has been violated by anything
done or attented by either an executive official or the legislative." (Judicial Self-Limitation
by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39; emphasis supplied,).
The case of Suanes vs. Chief Accountant (supra) cited by respondent refutes their own
pretense. This Court exercised its jurisdiction over said case and decided the same on the
merits thereof, despite the fact that it involved an inquiry into the powers of the Senate
and its President over the Senate Electoral Tribunal and the personnel thereof. .
Again, under the Constitution, "the legislative power" is vested exclusively in the Congress
of the Philippines. Yet, this does not detract from the power of the courts to pass upon the
constitutionality of acts of Congress 1 And, since judicial power includes the authority to
inquire into the legality of statutes enacted by the two Houses of Congress, and approved
by the Executive, there can be no reason why the validity of an act of one of said Houses,
like that of any other branch of the Government, may not be determined in the proper
actions. Thus, in the exercise of the so-called "judicial supremacy", this Court declared
that a resolution of the defunct National Assembly could not bar the exercise of the powers
of the former Electoral Commission under the original Constitution. 2 (Angara vs. Electoral
Commission, supra), and annulled certain acts of the Executive 3 as incompatible with the
fundamental law.
In fact, whenever the conflicting claims of the parties to a litigation cannot properly be
settled without inquiring into the validity of an act of Congress or of either House thereof,
the courts have, not only jurisdiction to pass upon said issue, but, also, the duty to do so,
which cannot be evaded without violating the fundamental law and paving the way to its
eventual destruction. 4.
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs. Francisco (88
Phil., 654), likewise, invoked by respondents, in point. In the Mabanag case, it was held
that the courts could not review the finding of the Senate to the effect that the members
thereof who had been suspended by said House should not be considered in determining
whether the votes cast therein, in favor of a resolution proposing an amendment to the
Constitution, sufficed to satisfy the requirements of the latter, such question being a
political one. The weight of this decision, as a precedent, has been weakened, however, by
our resolutions in Avelino vs. Cuenco (83 Phil., 17), in which this Court proceeded to
determine the number essential to constitute a quorum in the Senate. Besides, the case at
bar does not hinge on the number of votes needed for a particular act of said body. The
issue before us is whether the Senate-after acknowledging that the Citizens Party is the
party, having the second largest number of votes in the Senate, to which party the
Constitution gives the right to nominate three (3) Senators for the Senate electoral
Tribunal-could validly choose therefor two (2) Nacionalista Senators, upon nomination by
62 | P a g e
the floor leader of the Nacionalista Party in the Senate, Senator Primicias claiming to act
on behalf of the Committee on Rules for the Senate.
The issue in the Cabili case was whether we could review a resolution of the Senate
reorganizing its representation in the Commission on Appointments. This was decided in
the negative, upon the authority of Alejandrino vs. Quezon (supra) and Vera vs. Avelino
(supra), the main purpose of the petition being "to force upon the Senate the
reinstatement of Senator Magalona in the Commission on Appointments," one-half (1/2) of
the members of which is to be elected by each House on the basis of proportional
representation of the political parties therein. Hence, the issue depended mainly on the
determination of the political alignment of the members of the Senate at the time of said
reorganization and of the necessity or advisability of effecting said reorganization, which is
a political question. We are not called upon, in the case at bar, to pass upon an identical
or similar question, it being conceded, impliedly, but clearly, that the Citizens Party is the
party with the second largest number of votes in the Senate. The issue, therefore, is
whether a right vested by the Constitution in the Citizens Party may validly be exercised,
either by the Nacionalista Party, or by the Committee on Rules for the Senate, over the
objection of said Citizens Party.
The only ground upon which respondents' objection to the jurisdiction of this Court and
their theory to the effect that the proper remedy for petitioners herein is, not the present
action, but an appeal to public opinion, could possibly be entertained is, therefore,
whether the case at bar raises merely a political question, not one justiciable in nature.
In this connection, respondents assert in their answer that "the remedy of petitioners is
not in the judicial forum, but, to use petitioner, Tañada's own words, to bring the matter
to the bar of public opinion' (p. 81, Discussion on the Creation of the Senate Electoral
Tribunal, February 21, 1956)." This allegation may give the impression that said petitioner
had declared, on the floor of the Senate, that his only relief against the acts complained of
in the petition is to take up the issue before the people- which is not a fact. During the
discussions in the Senate, in the course of the organization of the Senate Electoral
Tribunal, on February 21, 1956, Senator Tañada was asked what remedies he would
suggest if he nominated two (2) Nacionialista Senators and the latter declined the,
nomination. Senator Tañada replied:.
"There are two remedies that occur to my mind right now, Mr. Senator; one is the remedy
open to all of us that if we feel aggrieved and there is no recourse in the court of justice,
we can appeal to public opinion. Another remedy is an action in the Supreme Court. Of
course, as Senator Rodriguez, our President here, has said one day; "If you take this
matter to the Supreme Court, you will lose, because until now the Supreme Court has
always ruled against any action that would constitute interference in the business of
anybody pertaining to the Senate. The theory of separation of powers will be upheld by
the Supreme Court." But that learned opinion of Senator Rodriguez, our President,
notwithstanding, I may take the case to the Supreme Court if my right herein is not
respected. I may lose, Mr. President, but who has not lost in the Supreme Court? I may
lose because of the theory of the separation of powers, but that does not mean, Mr.
President, that what has been done here is pursuant to the provision of the Constitution."
(Congressional Record, Vol. III, p. 339; emphasis supplied.).
This statement did not refer to the nomination, by Senator Primicias, and the election, by
the Senate, of Senators Cuenco and Delgado as members of said Tribunal. Indeed, said
nomination and election took place the day after the aforementioned statement of Senator
Tañada was made. At any rate, the latter announced that he might "take the case to the
Supreme Court if my right here is not respected.".
As already adverted to, the objection to our jurisdiction hinges on the question whether
the issue before us is political or not. In this connection, Willoughby lucidly states:.
"Elsewhere in this treatise the well-known and well-established principle is considered that
it is not within the province of the courts to pass judgment upon the policy of legislative or
executive action. Where, therefore, discretionary powers are granted by the Constitution
or by statute, the manner in which those powers are exercised is not subject to judicial
review. The courts, therefore, concern themselves only with the question as to the
existence and extent of these discretionary powers.
"As distinguished from the judicial, the legislative and executive departments are spoken
of as the political departments of government because in very many cases their action is
necessarily dictated by considerations of public or political policy. These considerations of
public or political policy of course will not permit the legislature to violate constitutional
provisions, or the executive to exercise authority not granted him by the Constitution or
by, statute, but, within these limits, they do permit the departments, separately or
together, to recognize that a certain set of facts exists or that a given status exists, and
these determinations, together with the consequences that flow therefrom, may not be
traversed in the courts." (Willoughby on the Constitution of the United States, Vol. 3, p.
1326; emphasis supplied.).
To the same effect is the language used in Corpus Juris Secundum, from which we quote:.
"It is well-settled doctrine that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been conferred
upon the courts by express constitutional or statutory provisions.
"It is not easy, however, to define the phrase `political question', nor to determine what
matters, fall within its scope. It is frequently used to designate all questions that lie
outside the scope of the judicial questions, which under the constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the government." (16 C.J.S.,
413; see, also Geauga Lake Improvement Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio St.
565; Sevilla vs, Elizalde, 112 F. 2d 29, 72 App. D. C., 108; emphasis supplied.).
Thus, it has been repeatedly held that the question whether certain amendments to the
Constitution are invalid for non-compliance with the procedure therein prescribed, is not a
political one and may be settled by the Courts. 5 .
In the case of In re McConaughy (119 N.W. 408), the nature of political question was
considered carefully. The Court said:.
63 | P a g e
"At the threshold of the case we are met with the assertion that the questions involved are
political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of
the state canvassing board would then be final, regardless of the actual vote upon the
amendment. The question thus raised is a fundamental one; but it has been so often
decided contrary to the view contended for by the Attorney General that it would seem to
be finally settled.
" .. What is generally meant, when it is, said that a question is political, and not judicial, is
that it is a matter which, is to be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some other department or particular
officer of the government, with discretionary power to act. See State vs. Cunningham, 81
Wis. 497, 51 L. R. A. 561; In Re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519;
Green vs. Mills, 69 Fed. 852, 16, C. C. A. 516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill.
41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220. Thus the Legislature may in its
discretion determine whether it will pass a law or submit a proposed constitutional
amendment to the people. The courts have no judicial control over such matters, not
merely because they involve political question, but because they are matters which the
people have by the Constitution delegated to the Legislature. The Governor may exercise
the powers delegated to him, free from judicial control, so long as he observes the laws
and acts within the limits of the power conferred. His discretionary acts cannot be
controllable, not primarily because they are of a political nature, but because the
Constitution and laws have placed the particular matter under his control. But every officer
under a constitutional government must act according to law and subject him to the
restraining and controlling power of the people, acting through the courts, as well as
through the executive or the Legislature. One department is just as representative as the
other, and the judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official action. The recognition of
this principle, unknown except in Great Britain and America, is necessary, to the end that
the government may be one of laws and not men'-words which Webster said were the
greatest contained in any written constitutional document." (pp. 411, 417; emphasis
supplied.).
In short, the term "political question" connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language of Corpus
Juris Secundum (supra), it refers to "those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the
Government." It is concerned with issues dependent upon the wisdom, not legality, of a
particular measure.
Such is not the nature of the question for determination in the present case. Here, we are
called upon to decide whether the election of Senators Cuenco and Delgado, by the
Senate, as members of the Senate Electoral Tribunal, upon nomination by Senator
Primicias-a member and spokesman of the party having the largest number of votes in the
Senate-on behalf of its Committee on Rules, contravenes the constitutional mandate that
said members of the Senate Electoral Tribunal shall be chosen "upon nomination .. of the
party having the second largest number of votes" in the Senate, and hence, is null and
void. This is not a political question. The Senate is not clothed with "full discretionary
authority" in the choice of members of the Senate Electoral Tribunal. The exercise of its
power thereon is subject to constitutional limitations which are claimed to be mandatory in
nature. It is clearly within the legitimate prove of the judicial department to pass upon the
validity the proceedings in connection therewith.
".. whether an election of public officers has been in accordance with law is for the
judiciary. Moreover, where the legislative department has by statute prescribed election
procedure in a given situation, the judiciary may determine whether a particular election
has been in conformity with such statute, and, particularly, whether such statute has been
applied in a way to deny or transgress on the constitutional or statutory rights .." (16
C.J.S., 439; emphasis supplied.).
It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to
consider and determine the principal issue raised by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of the
Electoral Tribunal, valid and lawful?.
Section 11 of Article VI of the Constitution, reads:.
"The Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns, and qualifications of
their respective Members. Each Electoral Tribunal shall be composed of nine Members,
three of whom shall be Justices of the Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members of the Senate or of the House of
Representatives, as the case may be, who shall be chosen by each House, three upon
nomination of the party having the largest number of votes and three of the party having
the second largest number of votes therein. The Senior Justice in each Electoral Tribunal
shall be its Chairman." (Emphasis supplied.).
It appears that on February 22, 1956, as well as at present, the Senate of the Philippines
consists of twenty three (23) members of the Nacionalista Party and one (1) member of
the Citizens Party, namely, Senator Tañada, who is, also, the president of said party. In
the session of the Senate held on February 21, 1956, Senator Sabido moved that Senator
Tañada, "the President of the Citizens Party, be given the privilege to nominate .. three
(3) members" of the Senate Electoral Tribunal (Congressional Record for the Senate, Vol.
III, pp. 328-329), referring to those who, according to the provision above-quoted, should
be nominated by "the party having the second largest number of votes" in the Senate.
Senator Tañada objected formally to this motion upon the-ground: (a) that the right to
nominate said members of the Senate Electoral Tribunal belongs, not to the Nacionalista
Party of which Senator Sabido and the other Senators are members-but to the Citizens
Party, as the one having the second largest number of votes in the Senate, so that, being
devoid of authority to nominate the aforementioned members of said Tribunal, the
Nacionalista Party cannot give it to the Citizens Party, which, already, has such authority,
pursuant to the Constitution; and (b) that Senator Sabido's motion would compel Senator
Tañada to nominate three (3) Senators to said Tribunal, although as representative of the
minority party in the Senate he has "the right to nominate one, two or three to the
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Electoral Tribunal," in his discretion. Senator Tañada further stated that he reserved the
right to determine how many he would nominate, after hearing the reasons of Senator
Sabido in support of his motion. After some discussion, in which Senators Primicias, Cea,
Lim, Sumulong, Zulueta, and Rodrigo took part, the Senate adjourned until the next
morning, February 22, 1956 (Do., do, pp. 329, 330, 332-333, 336, 338, 339, 343).
Then, said issues were debated upon more extensively, with Senator Sumulong, not only
seconding the opposition of Senator Tañada, but, also, maintaining that "Senator Tañada
should nominate only one" member of the Senate, namely, himself, he being the only
Senator who belongs to the minority party in said House (Do., do., pp. 360-364, 369).
Thus, a new issue was raised - whether or not one who does not belong to said party may
be nominated by its spokesman, Senator Tañada - on which Senators Paredes, Pelaez,
Rosales and Laurel, as well as the other Senators already mentioned, expressed their
views (Do., do., pp. 345, 349, 350, 354, 358, 364, 375). Although the deliberations of the
Senate consumed the whole morning and afternoon of February 22, 1956, a satisfactory
solution of the question before the Senate appeared to be remote. So, at 7:40 p.m., the
meeting was suspended, on motion of Senator Laurel, with a view to seeking a
compromise formula (Do., do., pp. 377). When session was resumed at 8:10 p.m.,
Senator Sabido withdrew his motion above referred to. Thereupon, Senator Primicias, on
behalf of the Nacionalista Party, nominated, and the Senate elected, Senators Laurel,
Lopez and Primicias, as members of the Senate Electoral Tribunal. Subsequently, Senator
Tañada stated:.
"On behalf of the Citizens Party, the minority party in this Body, I nominate the only
Citizens Party member in this Body, and that is Senator Lorenzo M. Tañada.".
Without an objection, this nomination was approved by the House. Then, Senator Primicias
stood up and said:.
"Now, Mr. President, in order to comply with the provision in the Constitution, the
Committee on Rules of the Senate-and I am now making this proposal not on behalf of the
Nacionalista Party but on behalf of the Committee on Rules of the Senate-I nominate two
other members to complete the membership of the Tribunal: Senators Delgado and
Cuenco.".
What took place thereafter appears in the following quotations from the Congressional
Record for the Senate.
"SENATOR TAÑADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Quezon.
"SENATOR TAÑADA. I would like to record my opposition to the nominations of the last
two named gentlemen, Senators Delgado and Cuenco, not because I don't believe that
they do not deserve to be appointed to the tribunal but because of my sincere and firm
conviction that these additional nominations are not sanctioned by the Constitution. The
Constitution only permits the Nacionalista Party or the party having the largest number of
votes to nominate three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Rizal.
"SENATOR SUMULONG. For the reasons that I have stated a few moments ago when I
took the floor, I also wish to record my objection to the last nominations, to the
nomination of two additional NP's to the Electoral Tribunal.
"EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios Senadores: Si.) Los
que esten conformes con la nominacion hecha por el Presidente del Comite de
Reglamentos a favor de los Senadores Delgado y Cuenco para ser miembros del Tribunal
Electoral, digan, si. (Varios Senadores: Si.) Los que no lo esten digan, no (Silencio.)
Queda aprobada." (Congressional Record for the Senate, Vol. III, p. 377; emphasis
supplied.).
Petitioners maintain that said nomination and election of Senators Cuenco and Delgado-
who belong to the Nacionalista Party-as members of the Senate Electoral Tribunal, are null
and void and have been made without power or color of authority, for, after the
nomination by said party, and the election by the Senate, of Senators Laurel, Lopez and
Primicias, as members of said Tribunal, the other Senators, who shall be members
thereof, must necessarily be nominated by the party having the second largest number of
votes in the Senate, and such party is, admittedly, the Citizens Party, to which Senator
Tañada belongs and which he represents.
Respondents allege, however, that the constitutional mandate to the effect that "each
Electoral Tribunal shall be compose of nine (9) members," six (6) of whom "shall be
members of the Senate or of the House of Representatives, as the case may be", is
mandatory; that when-after the nomination of three (3) Senators by the majority party,
and their election by the Senate, as members of the Senate Electoral Tribunal-Senator
Tañada nominated himself only, on behalf of the minority party, he thereby "waived his
right to no two more Senators;" that, when Senator Primicias nominated Senators Cuenco
and Delgado, and these respondents were chosen by the Senate, as members of the
Senate Electoral Tribunal, Said Senator Primicias and the Senate merely complied with the
aforementioned provision of the fundamental law, relative to the number of members of
the Senate Electoral Tribunal; and, that, accordingly, Senators Cuenco and Delgado are de
jure members of said body, and the appointment of their co-respondents, Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido Reyes is valid and lawful.
At the outset, it will be recalled that the proceedings the organization of the Senate
Electoral Tribunal began with a motion of Senator Sabido to the effect that "the
distinguished gentleman from Quezon, the President of the Citizens Party, be given the
privilege to nominate the three Members" of said Tribunal. Senator Primicias inquired why
the movant had used the word "privilege". Senator Sabido explained that the present
composition of the Senate had created a condition or situation which was not anticipated
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by the framers of our Constitution; that although Senator Tañada formed part of the
Nacionalista Party before the end of 1955, he subsequently parted ways with" said party;
and that Senator Tañada "is the distinguished president of the Citizens Party," which
"approximates the situation desired by the framers of the Constitution" (Congressional
Record for the Senate Vol. III, pp. 329-330). Then Senator Lim intervened, stating:.
"At present Senator Tañada is considered as forming the only minority or the one that has
the second largest number of votes in the existing Senate, is not that right? And if this is
so, he should be given this as a matter of right, not as a matter of privilege. .. I don't
believe that we should be allowed to grant this authority to Senator Tañada only as a
privilege but we must grant it as a matter of right." (Id., id., p. 32; emphasis supplied.).
Similarly, Senator Sumulong maintained that "Senator Tañada, as Citizens Party Senator,
has the right and not a mere privilege to nominate," adding that:.
".. the question is whether we have a party here having the second largest number of
votes, and it is clear in my mind that there is such a party, and that is the Citizens Party
to which the gentleman from Quezon belongs. .. We have to bear in mind, .. that when
Senator Tañada was included in the Nacionalista Party ticket in 1953, it was by virtue of a
coalition or an alliance between the Citizens Party and the Nacionalista Party at that time,
and I maintain that when Senator Tañada as head of the Citizens Party entered into a
coalition with the Nacionalista Party, he did not thereby become a Nacionalista because
that was a mere coalition, not a fusion. When the Citizens Party entered into a mere
coalition, that party did not lose its personality as a party separate and distinct from the,
Nacionalista Party. And we should also remember that the certificate of candidacy filed by
Senator Tañada in the 1953 election was one to the effect that he belonged to the Citizens
Party .." (Id., id., p. 360; emphasis supplied.).
The debate was closed by Senator Laurel, who remarked, referring to Senator Tañada:.
"..there is no doubt that he does not belong to the majority in the first place, and that,
therefore, he belongs to the minority. And whether we like it or not, that is the reality of
the actual situation-that he is not a Nacionalista now, that he is the head and the
representative of the Citizens Party. I think that on equitable ground and from the point of
view of public opinion, his situation .. approximates or approaches what is within the spirit
of that Constitution. .. and from the point of view of the spirit of the Constitution it would
be a good thing if we grant the opportunity to Senator Tañada to help us in the
organization of this Electoral Tribunal (Id., id., p. 376; emphasis supplied.).
The foregoing statements and the fact that, thereafter, Senator Sabido withdrew his
motion to grant Senator Tañada the "privilege" to nominate, and said petitioner actually
nominated himself "on behalf of the Citizens Party, the minority party in this Body"-not
only without any, objection whatsoever, but, also, with the approval of the Senate-leave
no room for doubt that the Senate-leave no room for doubt that the Senate has regarded
the Citizens Party, represented by Senator Tañada, as the party having the second largest
number of votes in said House.
Referring, now, to the contention of respondents herein, their main argument in support of
the mandatory character of the constitutional provision relative to the number of members
of the Senate Electoral Tribunal is that the word "shall", therein used, is imperative in
nature and that this is borne out by an opinion of the Secretary of Justice dated February
1, 1939, pertinent parts of which are quoted at the footnote. 6.
Regardless of the respect due its author, as a distinguished citizen and public official, said
opinion has little, if any, weight in the solution of the question before this Court, for the
practical construction of a Constitution is of little, if any, unless it has been uniform .." 6a
Again, "as a general rule, it is only in cases of substantial doubt and ambiguity that the
doctrine of contemporaneous or practical construction has any application". As a
consequence, "where the meaning of a constitutional provision is clear, a
contemporaneous or practical executive interpretation thereof is entitled to no weight, and
will not be allowed to distort or in any way change its natural meaning." The reason is that
"the application of the doctrine of contemporaneous construction is more restricted as
applied to the interpretation of constitutional provisions than when applied to statutory
provisions", and that, "except as to matters committed by the Constitution, itself to the
discretion of some other department, contemporary or practical construction is not
necessarily binding upon the courts, even in a doubtful case." Hence, "if in the judgment
of the court, such construction is erroneous and its further application is not made
imperative by any paramount considerations of public policy, it may he rejected." (16 C. J.
S., 71-72; emphasis supplied.) 6b.
The aforemention opinion of the Secretary of Justice is not backed up by a, "uniform"
application of the view therein adopted, so essential to give thereto the weight accorded
by the rules on contemporaneous constructions. Moreover, said opinion tends to change
the natural meaning of section 11 of Article VI of the Constitution, which is clear. What is
more, there is not the slightest doubt in our mind that the purpose and spirit of said
provisions do not warrant said change and that the rejection of the latter is demanded by
paramount considerations of public policy. .
The flaw in the position taken in said opinion and by respondent herein is that, while, it
relies upon the compulsory nature of the word "shall", as regards the number of members
of the Electoral Tribunals, it ignores the fact that the same term is used with respect to the
method prescribed for their election, and that both form part of a single sentence and
must be considered, therefore, as integral portions of one and the same thought. Indeed,
respondents have not even tried to show and we cannot conceive-why "shall" must be
deemed mandatory insofar as the number of members of each Electoral Tribunal, and
should be considered directory as regards the procedure for their selection. More
important still, the history of section 11 of Article VI of the Constitution and the records of
the Convention, refute respondents' pretense, and back up the theory of petitioners
herein.
Commenting on the frame of mind of the delegates to the Constitutional Convention, when
they faced the task of providing for the adjudication of contests relating to the election,
returns and qualifications of members of the Legislative Department, Dr. Jose M. Aruego,
a member of said Convention, says:.
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"The experience of the Filipino people under the provisions of the organic laws which left
to the lawmaking body the determination of the elections, returns, and qualifications of its
members was not altogether satisfactory. There were many complaints against the lack of
political justice in this determination; for in a great number of cases, party interests
controlled and dictated the decisions. The undue delay in the dispatch of election contests
for legislative seats, the irregularities that characterized the proceedings in some of them,
and the very apparent injection of partisanship in the determination of a great number of
the cases were decried by a great number of the people as well as by the organs of public
opinion.
"The faith of the people in the uprightness of the lawmaking body in the performance of
this function assigned to it in the organic laws was by no means great. In fact so blatant
was the lack of political justice in the decisions that there was, gradually built up a camp
of thought in the Philippines inclined to leave to the courts the determination of election
contests, following the practice in some countries, like England and Canada.
"Such were the conditions of things at the time of the meeting of the convention." (The
Framing of the Philippine Constitution by Aruego, Vol. 1, pp. 257-258; emphasis
supplied.).
This view is shared by distinguished members of the Senate. Thus, in its session of
February 22, 1956, Senator Sumulong declared:.
".. when you leave it to either House to decide election protests involving its own
members, that is virtually placing the majority party in a position to dictate the decision in
those election cases, because each House will be composed of a majority and a minority,
and when you make each House the judge of every election protest involving any member
of that House, you place the majority in a position to dominate and dictate the decision in
the case and result was, there were so many abuses, there were so main injustices:
committed by the majority at the expense and to the prejudice of the minority
protestants. Statements have been made here that justice was done even under the old
system, like that case involving Senator Mabanag, when he almost became a victim of the
majority when he had an election case, and it was only through the intervention of
President Quezon that he was saved from becoming the victim of majority injustices.
"It is true that justice had sometimes prevailed under the old system, but the record will
show that those cases were few and they were the rare exceptions. The overwhelming
majority of election protests decided under the old system was that the majority being
then in a position to dictate the, decision in the election protest, was tempted to commit
as it did commit many abuses and injustices." (Congressional Record for the Senate, Vol.
111, p. 361; emphasis supplied.).
Senator Paredes, a veteran legislator and former Speaker of the House of Representatives,
said:.
".. what was intended in the creation of the electoral tribunal was to create a sort of
collegiate court composed of nine members: Three of them belonging to the party having
the largest number of votes, and three from the party having the second largest number
votes so that these members may represent the party, and the members of said party
who will sit before the electoral tribunal as protestees. For when it comes to a party, Mr.
President, there ground to believe that decisions will be made along party lines."
(Congressional Record for the Senate, Vol. III, p. 351; emphasis supplied.).
Senator Laurel, who played an important role in the framing of our Constitution, expressed
himself as follows:.
"Now, with reference to the protests or contests, relating to the election, the returns and
the qualifications of the members of the legislative bodies, I heard it said here correctly
that there was a time when that was given to the corresponding chamber of the legislative
department. So the election, returns and qualifications of the members, of the Congress or
legislative body was entrusted to that body itself as the exclusive body to determine the
election, returns and qualifications of its members. There was some doubt also expressed
as to whether that should continue or not, and the greatest argument in favor of the
retention of that provision was the fact that was, among other things, the system
obtaining in the United States under the Federal Constitution of the United States, and
there was no reason why that power or that right vested in the legislative body should not
be retained. But it was thought that would make the determination of this contest, of this
election protest, purely political as has been observed in the past." (Congressional Record
for the Senate, Vol. III, p. 376; emphasis supplied.).
It is interesting to note that not one of the members of the Senate contested the accuracy
of the views thus expressed.
Referring particularly to the philosophy underlying the constitutional provision quoted
above, Dr. Aruego states:.
"The defense of the Electoral Commission was based primarily upon the hope and belief
that the abolition of Party line because of the equal representation in this body of the
majority and the minority parties of the National Assembly and the intervention of some
members of the Supreme Court who, under the proposed constitutional provision, would
also be members of the same, would insure greater political justice in the determination of
election contests for seats in the National Assembly than there would be if the power had
been lodged in the lawmaking body itself. Delegate Francisco summarized the arguments
for the creation of the Electoral Commission in the following words:.
"I understand that from the time that this question is placed in the hands of members not
only of the majority party but also of the minority party, there is already a condition, a
factor which would make protests decided in a non-partisan manner. We know from
experience that many times in the many protests tried in the House or in the Senate, it
was impossible to prevent the factor of party from getting in. From the moment that it is
required that not only the majority but also the minority should intervene in these
questions, we have already enough guarantee that there would be no tyranny on the part
of the majority.
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`But there is another more detail which is the one which satisfies me most, and that is the
intervention of three justices. So that with this intervention of three justices if there would
be any question as to the justice applied by the majority or the minority, if there would be
any fundamental disagreement, or if there would be nothing but questions purely of party
in which the members of the majority as well as those of the minority should wish to take
lightly a protest because the protestant belongs to one of said parties, we have in this
case, as a check upon the two parties, the actuations of the three justices. In the last
analysis, what is really applied in the determination of electoral cases brought before the
tribunals of justice or before the House of Representatives or the Senate? Well, it is
nothing more than the law and the doctrine of the Supreme Court. If that is the case,
there will be greater skill in the application of the laws and in the application of doctrines
to electoral matters having as we shall have three justices who will act impartially in these
electoral questions.
`I wish to call the attention of my distinguished colleagues to the fact that in electoral
protests it is impossible to set aside party interests. Hence, the best guarantee, I repeat,
for the administration of justice to the parties, for the fact that the laws will not be applied
rightfully or incorrectly as well as for the fact that the doctrines of the Supreme Court will
be applied rightfully, the best guarantee which we shall have, I repeat, is the intervention
of the three justices. And with the formation of the Electoral Commission, I say again, the
protestants as well as the protestees could remain tranquil in the certainty that they will
receive the justice that they really deserve. If we eliminate from this precept the
intervention of the party of the minority and that of the three justices, then we shall be
placing protests exclusively in the hands of the party in power. And I understand,
gentlemen, that in practice that has not given good results. Many have criticized, many
have complained against, the tyranny of the majority in electoral cases .. I repeat that the
best guarantee the fact that these questions will be judged not only by three members of
the majority but also by three members of the minority, with the additional guarantee of
the impartial judgment of three justices of the Supreme Court." (The Framing of the
Philippine Constitution by Aruego, Vol. I, pp. 261-263; emphasis supplied.).
The foregoing was corroborated by Senator Laurel. Speaking for this Court, in Angara vs.
Electoral Commission (63 Phil., 139), he asserted:.
"The members of the Constitutional Convention who framed our fundamental law were in
their majority-men mature in years and experience. To be sure, many of them were
familiar with the history and political development of other countries of the world. When,
therefore they deemed it wise to create an Electoral Commission as a constitutional organ
and invested with the exclusive function of passing upon and determining the election,
returns and qualifications of the members of the National Assembly, they must have done
so not only in the light of their own experience but also having in view the experience of
other enlightened peoples of the world. The creation of the Electoral Commission was
designed to remedy certain evils of which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some members of the Convention to its
creation, the plan, as hereinabove stated, was approved by that body by a vote of 98
against 58. All that can be said now is that, upon the approval of the Constitution, the
creation of the Electoral Commission is the expression of the wisdom `ultimate justice of
the people'. (Abraham Lincoln, First Inaugural Address, March 4, 1861.).
"From the deliberations of our Constitutional Convention it is evident that the purpose was
to transfer in its totality all the powers previously exercised by the legislature in matters
pertaining to contested elections of its members, to an independent and impartial tribunal.
It was not so much the knowledge and appreciation of contemporary constitutional
precedents, however, as the long felt need of determining legislative contests devoid of
partisan considerations which prompted the people acting through their delegates to the
Convention, to provide for this body known as the Electoral Commission. With this end in
view, a composite body in which both the majority and minority parties are equally
represented to off-set partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three justices of the Supreme
Court," (Pp. 174-175.) 7.
As a matter of fact, during the deliberations of the convention, Delegates Conejero and
Roxas said:.
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del Subcomite
de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con mucho gusto. "El Sr.
CONEJERO. Tal como esta el draft., dando tres miembrosala mayoria, y otros t?-es a la
minyoryia y atros a la Corte Suprerma, no cree su Senoria que este equivale pricticamente
a dejar el asunto a los miembros del Tribunal Supremo?.
"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta cotistuido en esa
forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de
la Corte Saprema consideration la cuestion sobre la base de sus meritos, sabiendo que el
partidismo no es suficiente para dar el triunbo.
"El Sr. CONEJERO. Cree Su Senoria que en un caso como ese, podriamos hacer que tanto
los de la mayoria como los de la minoria prescindieran del partidisrno?.
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara vs.
Electoral Commission, supra, pp. 168-169; emphasis supplied.).
It is clear from the foregoing that the main objective of the framers of our Constitution in
providing for the establishment, first, of an Electoral Commission, 8 and then 9 of one
Electoral Tribunal for each House of Congress, was to insure the exercise of judicial
impartiality in the disposition of election contests affecting members of the lawmaking
body. To achieve this purpose, two devices were resorted to, namely: (a) the party having
the largest number of votes, and the party having the second largest number of votes, in
the National Assembly or in each House of Congress, were given the same number of
representatives in the Electoral Commission or Tribunal, so that they may realize that
partisan considerations could not control the adjudication of said cases, and thus be
induced to act with greater impartiality; and (b) the Supreme Court was given in said body
the same number of representatives as each one of said political parties, so that the
influence of the former may be decisive and endow said Commission or Tribunal with
judicial temper.
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This is obvious from the very language of the constitutional provision under consideration.
In fact, Senator Sabido-who had moved to grant to Senator Tañada the privilege" to make
the nominations on behalf of party having the second largest number of votes in the
Senate-agrees with it. As Senator Sumulong inquired:.
"..I suppose Your Honor will agree with me that the framers of the Constitution precisely
thought of creating this Electoral Tribunal so as to prevent the majority from ever having a
preponderant majority in the Tribunal." (Congressional Record for the Senate, Vol. III, p.
330; emphasis supplied.).
Senator Sabido replied:.
"That is so, .." (Id., p. 330.).
Upon further interpretation, Senator Sabido said:.
".. the purpose of the creation of the Electoral Tribunal and of its composition is to
maintain a balance between the two parties and make the members of the Supreme Court
the controlling power so to speak of the Electoral Tribunal or hold the balance of power.
That is the ideal situation." (Congressional Record for the Senate, Vol. III, p. 349;
emphasis supplied.).
Senator Sumulong opined along the same line. His words were: .
"..The intention is that when the three from the majority and the three from the minority
become members of the Tribunal it is hoped that they will become aware of their judicial
functions, not to protect the protestants or the protegees. It is hoped that they will act as
judges because to decide election cases is a judicial function. But the framers of, the
Constitution besides being learned were men of experience. They knew that even Senators
like us are not angels, that we are human beings, that if we should be chosen to go to the
Electoral Tribunal no one can say that we will entirely be free from partisan influence to
favor our party, so that in, case that hope that the three from the majority and the three
from the minority who will act as Judges should result in disappointment, in case they do
not act as judges but they go there and vote along party liner, still there is the guarantee
that they will offset each other and the result will be that the deciding vote will reside in
the hands of the three Justices who have no partisan motives to favor either the
protestees or the protestants. In other words, the whole idea is to prevent the majority
from controlling and dictating the decisions of the Tribunal and to make sure that the
decisive vote will be wielded by the Congressmen or Senators who are members the
Tribunal but will be wielded by the Justices who, by virtue of their judicial offices, will have
no partisan motives to serve, either protestants, or protestees. That is my understanding
of the intention of the framers of the Constitution when they decided to create the
Electoral Tribunal.
"My idea is that the intention of the framers of the constitution in creating the Electoral
Tribunal is to insure impartially and independence in its decision, and that is sought to be
done by never allowing the majority party to control the Tribunal, and secondly by seeing
to it that the decisive vote in the Tribunal will be left in the hands of persons who have no
partisan interest or motive to favor either protestant or protestee." (Congressional Record
for the Senate, Vol. III, pp. 362-363, 365-366; emphasis supplied.).
So important in the "balance of powers" between the two political parties in the Electoral
Tribunals, that several members of the Senate questioned the right of the party having the
second largest number of votes in the Senate and, hence, of Senator Tañada, as
representative of the Citizens Party-to nominate for the Senate Electoral Tribunal any
Senator not belonging to said party. Senators Lim, Sabido, Cea and Paredes maintained
that the spirit of the Constitution would be violated if the nominees to the Electoral
Tribunals did not belong to the parties respectively making the nominations. 10.
It is not necessary, for the purpose of this decision, to determine whether the parties
having the largest, and the second largest, number of votes in each House may nominate,
to the Electoral Tribunals, those members of Congress who do not belong to the party
nominating them. It is patent, however, that the most vital feature of the Electoral
Tribunals is the equal representation of said parties therein, and the resulting equilibrium
to be maintained by the Justices of the Supreme Court as members of said Tribunals. In
the words of the members of the present Senate, said feature reflects the "intent"
"purpose", and "spirit of the Constitution", pursuant to which the Senate Electoral Tribunal
should be organized (Congressional Record for the Senate, pp. 330, 337, 348-9, 350, 351,
355, 358, 362-3, 364, 370, 376).
Now then, it is well settled that "the purpose of all rules or maxims as to the construction
or interpretation of statutes is to discover the true intention of the law" (82 C. J. S., 526)
and that.
"As a general rule of statutory construction, the spirit or intention of a statute prevails
over the letter thereof, and whatever is within the spirit of statute is within the statute
although it is not within the letter, while that which is within the letter, but not within the
spirit of a statute, is not within the statute; but, where the law is free and clear from
ambiguity, the letter of it is not to be disregarded on the pretext of pursuing its spirit." (82
C. J. S., 613.).
"There is no universal rule or absolute test by which directory provisions in a statute may
in all circumstances be distinguished from those which are mandatory. However, in the
determination of this question, as of every other question of statutory construction, the
prime object is to ascertain the legislative intent. The legislative intent must be obtained
front all the surrounding circumstances, and the determination does not depend on the
form of the statute. Consideration must be given to the entire statute, its nature, its
object, and the consequences which would result from construing it one way or the other,
and the statute must be construed in connection with other related statutes. Words of
permissive character may be given a mandatory significance in order to effect the
legislative intent, and, when the terms of a statute are such that they cannot be made
effective to the extent of giving each and all of them some reasonable operation, without
construing the statute as mandatory, such construction should be given; .. On the other
hand, the language of a statute, however mandatory in form, may be deemed directory
69 | P a g e
whenever legislative purpose can best be carried out by such construction, and the
legislative intent does not require a mandatory construction; but the construction of
mandatory words as directory should not be lightly adopted and never where it would in
fact make a new law instead of that passed by the legislature. .. Whether a statute is
mandatory or directory depends on whether the thing directed to be done is of the
essence of the thing required, or is a mere matter of form, and what is a matter of
essence can often be determined only by judicial construction. Accordingly, when a
particular provision of a statute relates to some immaterial matter, as to which compliance
with the statute is a matter of convenience rather than substance, or where the directions
of a statute are given merely with a view to the proper, orderly, and prompt conduct of
business, it is generally regarded as directory, unless followed by words of absolute
prohibition; and a statute is regarded as directory were no substantial rights depend on it,
no injury can result from ignoring it, and the purpose of the legislative can be
accomplished in a manner other than that prescribed, with substantially the same result.
On the other hand, a provision relating to the essence of the thing to be done, that is, to
matters of substance, is mandatory, and when a fair interpretation of a statute, which
directs acts or proceedings to be done in a certain way shows that the legislature intended
a compliance with such provision to be essential to the validity of the act or proceeding, or
when same antecedent and pre-requisite conditions must exist prior to the exercise of
power, or must be performed before certain other powers can be exercise, the statute
must be regarded as mandatory. (Id., pp. 869-874.) (See also, Words and Phrases, Vol.
26, pp. 463-467; emphasis supplied.).
What has been said above, relative to the conditions antecedent to, and concomitant with,
the adoption of section 11 of Article VI of the Constitution, reveals clearly that its framers
intended to prevent the majority party from controlling the Electoral Tribunals, and that
the structure thereof is founded upon the equilibrium between the majority and the
minority parties therein, with the Justices of the Supreme Court, who are members of said
Tribunals, holding the resulting balance of power. The procedure prescribed in said
provision for the selection of members of the Electoral Tribunals is vital to the role they
are called upon to play. it constitutes the essence of said Tribunals. Hence, compliance
with said procedure is mandatory, and acts performed in violation thereof are null and
void. 11.
It is true that the application of the foregoing criterion would limit the membership of the
Senate Electoral Tribunal, in the case at bar, to seven (7), instead of nine (9), members;
but, it is conceded that the present composition of the Senate was not foreseen by the
framers of our Constitution (Congressional Record for the Senate, Vol. III, pp. 329, 342,
349, 354, 359, 375). Furthermore, the spirit of the law prevails over its letter, and the
solution herein adopted maintains the spirit of the Constitution, for partisan considerations
can not be decisive in a tribunal consisting of three (3) Justices of the Supreme Court,
three (3) members nominated by the majority party and either one (1) or two (2)
members nominated by the party having the second largest number of votes in the House
concerned.
Upon the other hand, what would be the result of respondents' contention if upheld?
Owing to the fact that the Citizens Party 12 has only one member in the Upper House,
Senator Tañada felt he should nominate, for the Senate Electoral Tribunal, only said
member of the Citizens Party. The same is, thus, numerically handicapped, vis-a-vis the
majority party, in said Tribunal. Obviously, Senator Tañada did not nominate other two
Senators, because, otherwise, he would worsen the already disadvantageous position,
therein, of the Citizens Party. Indeed, by the aforementioned nomination and election of
Senators Cuenco and Delgado, if the same were sanctioned, the Nacionalista Party would
have five (5) members in the Senate Electoral Tribunal, as against one (1) member of the
Citizens Party and three members of the Supreme Court. With the absolute majority
thereby attained by the majority party in said Tribunal, the philosophy underlying the
same would be entirely upset. The equilibrium between the political parties therein would
be destroyed. What is worst, the decisive moderating role of the Justices of the Supreme
Court would be wiped out, and, in lieu thereof, the door would be thrown wide open for
the predominance of political considerations in the determination of election protests
pending before said Tribunal, which is precisely what the fathers of our Constitution
earnestly strove to forestall. 13.
This does not imply that the honesty, integrity or impartiality of Senators Cuenco and
Delgado are being questioned. As a matter of fact, when Senator Tañada objected to their
nomination, he explicitly made of record that his opposition was based, not upon their
character, but upon the principle involved. When the election of members of Congress to
the Electoral Tribunal is made dependent upon the nomination of the political parties
above referred to, the Constitution thereby indicates its reliance upon the method of
selection thus established, regardless of the individual qualities of those chosen therefor.
Considering the wealth of experience of the delegatesto the Convention, as lawyers of
great note, as veteran politicians and as leaders in other fields of endeavor, they could
not, and did not, ignore the fact that the Constitution must limit itself to giving general
patterns or norms of action. In connection, particularly, with the composition of the
Electoral Tribunals, they believed that, even the most well meaning individuals often find it
difficult to shake off the bias and prejudice created by political antagonisms and to resist
the demands of political exigencies, the pressure of which is bound to increase in
proportion to the degree of predominance of the party from which it comes. As above
stated, this was confirmed by distinguished members of the present Senate. (See pp. 25-
28, 33, 34, supra.).
In connection with the argument of the former Secretary of Justice to the effect that when
"there is no minority party represented in the Assembly, the necessity for such a check by
the minority disappears", the following observations of the petitioners herein are worthy of
notice:.
" Under the interpretation espoused by the respondents, the very frauds or terrorism
committed by a party would establish the legal basis for the final destruction of minority
parties in the Congress at least. Let us suppose, for example, that in the Senate, the 15 or
16 senators with unexpired terms belong to the party A. In the senatorial elections to fill
the remaining 8 seats, all the 8 candidates of party A are proclaimed elected through
alleged fraud and/or terrorism. (The ouster of not less than 3 senators-elect in the
elections held since liberation attests to the reality of election frauds and terrorism in our
country.) There being no senator or only one senator belonging to the minority, who would
sit in judgment on the election candidates of the minority parties? According to the
contention of the respondents, it would be a Senate Electoral Tribunal made up of three
70 | P a g e
Supreme Court Justices and 5 or 6 members of the same party A accused of fraud and
terrorism. Most respectfully, we pray this Honorable Court to reject an interpretation that
would make of a democratic constitution the very instrument by which a corrupt and
ruthless party could entrench itself in power the legislature and thus destroy democracy in
the Philippines.
".. When there are no electoral protests filed by the Minority party, or when the only
electoral protests filed are by candidates of the majority against members-elect of the
same majority party, there might be no objection to the statement. But if electoral
protests are filed by candidates of the minority party, it is at this point that a need for a
check on the majority party is greatest, and contrary to the observation made in the
above-quoted opinion, such a cheek is a function that cannot be successfully exercised by
the 3 Justices of the Supreme Court, for the obvious and simple reason that they could
easily be outvoted by the 6 members of the majority party in the Tribunal.
"In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it, did not
appear that there were minority party candidates who were adversely affected by the
ruling of the Secretary of Justice and who could have brought a test case to court."
(Emphasis supplied.).
The defenses of waiver and estoppel set up against petitioner Tañada are untenable.
Although "an individual may waive constitutional provisions intended for his benefit",
particularly those meant for the protection of his property, and, sometimes, even those
tending "to secure his personal liberty", the power to waive does not exist when "public
policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's Constitutional
Limitations, pp. 368-371). The procedure outlined in the Constitution for the organization,
of the Electoral Tribunals was adopted in response to the demands of the common weal,
and it has been held that where a statute is founded on public policy, those to whom it
applies should not be permitted to waive its provisions" (82 C. J. S., 874). Besides, there
can be no waiver without an intent to such effect, which Senator Tañada did not have.
Again, the alleged waiver or exhaustion of his rights does not justify the exercise thereof
by a person or party, other than that to which it is vested exclusively by the Constitution.
The rule estoppel is that "whenever a party has, by his declaration, act or omissions,
intentionally and deliberately led another to believe a particular thing true, and to act upon
such belief, he cannot, in a litigation arising out of such declaration, act or omission, be
permitted to falsify it" (Rule 69, sec. 68 [a], Rules of Court). In the case at bar, petitioner
Senator Tañada did not lead the Senate to believe that Senator Primicias could nominate
Senators Cuenco and Delgado. On the contrary, said petitioner repeatedly asserted that
his was the exclusive right to make the nomination. He, likewise, specifically contested
said nomination of Senators Cuenco and Delgado. Again, the rule on estoppel applies to
questions of fact, not of law, about the truth of which the other party is ignorant (see
Moran's Comments on the Rules of Court, Vol. 3, pp. 490, 495). Such is not the nature of
the situation that confronted Senator Tañada and the other members of the Senate.
Lastly, the case of Zandueta vs. De la Costa (66 Phil., 615), cited by respondents, is not in
point. Judge Zandueta assumed office by virtue of an appointment, the legality of which
he later on assailed. In the case at bar, the nomination and election of Senator Tañada as
member of the Senate Electoral Tribunal was separate, distinct and independent from the
nomination and election of Senators Cuenco and Delgado.
In view of the foregoing, we hold that the Senate may not elect, as members of the
Senate Electoral Tribunal, those Senators who have not been nominated by the political
parties specified in the Constitution; that the party having the largest number of votes in
the Senate may nominate not more than three (3) members thereof to said Electoral
Tribunal; that the party having the second largest number of votes in the Senate has the
exclusive right to nominate the other three (3) Senators who shall sit as members in the
Electoral Tribunal; that neither these three (3) Senators, nor any of them, may be
nominated by a person or party other than the one having the second largest number of
votes in the Senate or its representative therein; that the Committee on Rules for the
Senate has no standing to validly make such nomination and that the nomination of
Senators Cuenco and Delgado by Senator Primicias, and the election of said respondents
by the Senate, as members of said Tribunal, are null and void ab initio.
As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido
Reyes, we are not prepared to hold, however, that their appointments were null and void.
Although recommended by Senators Cuenco and Delgado, who are not lawful members of
the Senate Electoral Tribunal, they were appointed by its Chairman, presumably, with the
consent of the majority of the de jure members of said body 14 or, pursuant to the Rules
thereof. At any rate, as held in Suanes vs. Chief Accountant (supra), the election of its
personnel is an internal matter falling within the jurisdiction and control of said body, and
there is every reason to believe that it will, hereafter take appropriate measures, in
relation to the four (4) respondents abovementioned, conformably with the spirit of the
Constitution and of, the decision in the case at bar.
Wherefore, judgment is hereby rendered declaring that, respondents Senators Mariano
Jesus Cuenco and Francisco A. Delgado have not been duly elected as Members of the
Senate Electoral Tribunal, that they are not entitled to act as such and that they should
be, as they are hereby, enjoined from exercising the powers and duties of Members of said
Electoral Tribunal and from acting in such capacity in connection with Senate Electoral
Case No. 4 thereof. With the qualification stated above, the petition is dismissed, as
regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes.
Without special pronouncement as to costs. It is so ordered.
71 | P a g e
 G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction relates to
the power of the incumbent President of the Philippines to propose amendments to the
present Constitution in the absence of the interim National Assembly which has not been
convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991
calling for a national referendum on October 16, 1976 for the Citizens Assemblies
("barangays") to resolve, among other things, the issues of martial law, the I . assembly,
its replacement, the powers of such replacement, the period of its existence, the length of
the period for tile exercise by the President of his present powers.1
Twenty days after or on September 22, 1976, the President issued another related decree,
Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by
declaring the provisions of presidential Decree No. 229 providing for the manner of voting
and canvass of votes in "barangays" (Citizens Assemblies) applicable to the national
referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No. 1031
repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is
quoted in the footnote below.2
On the same date of September 22, 1976, the President issued Presidential Decree No.
1033, stating the questions to be submitted to the people in the referendum-plebiscite on
October 16, 1976. The Decree recites in its "whereas" clauses that the people's continued
opposition to the convening of the National Assembly evinces their desire to have such
body abolished and replaced thru a constitutional amendment, providing for a legislative
body, which will be submitted directly to the people in the referendum-plebiscite of
October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you approve the following
amendments to the Constitution? For the purpose of the second question, the referendum
shall have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of
the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa.
Members of the interim Batasang Pambansa which shall not be more than 120, unless
otherwise provided by law, shall include the incumbent President of the Philippines,
representatives elected from the different regions of the nation, those who shall not be
less than eighteen years of age elected by their respective sectors, and those chosen by
the incumbent President from the members of the Cabinet. Regional representatives shall
be apportioned among the regions in accordance with the number of their respective
inhabitants and on the basis of a uniform and progressive ratio while the sectors shall be
determined by law. The number of representatives from each region or sector and the,
manner of their election shall be prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same powers and its members shall
have the same functions, responsibilities, rights, privileges, and disqualifications as the
interim National Assembly and the regular National Assembly and the members thereof.
However, it shall not exercise the power provided in Article VIII, Section 14(l) of the
Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the election and
selection of the members, convene the interim Batasang Pambansa and preside over its
sessions until the Speaker shall have been elected. The incumbent President of the
Philippines shall be the Prime Minister and he shall continue to exercise all his powers even
after the interim Batasang Pambansa is organized and ready to discharge its functions and
likewise he shall continue to exercise his powers and prerogatives under the nineteen
hundred and thirty five. Constitution and the powers vested in the President and the Prime
Minister under this Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers and
functions, and discharge the responsibilities of the regular President (Prime Minister) and
his Cabinet, and shall be subject only to such disqualifications as the President (Prime
Minister) may prescribe. The President (Prime Minister) if he so desires may appoint a
Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative powers until martial law
shall have been lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa
or the regular National Assembly fails or is unable to act adequately on any matter for any
72 | P a g e
reason that in his judgment requires immediate action, he may, in order to meet the
exigency, issue the necessary decrees, orders or letters of instructions, which shall form
part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but their
functions, powers, and composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the Commission on
Elections may be called at any time the government deems it necessary to ascertain the
will of the people regarding any important matter whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these amendments shall
continue in full force and effect.
9. These amendments shall take effect after the incumbent President shall have
proclaimed that they have been ratified by I majority of the votes cast in the referendum-
plebiscite."
The Commission on Elections was vested with the exclusive supervision and control of the
October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the
Commission on Elections from holding and conducting the Referendum Plebiscite on
October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033,
insofar as they propose amendments to the Constitution, as well as Presidential Decree
No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and
conduct the Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the
incumbent President to exercise the constituent power to propose amendments to the new
Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no
constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent Commission
on Elections, The Solicitor General principally maintains that petitioners have no standing
to sue; the issue raised is political in nature, beyond judicial cognizance of this Court; at
this state of the transition period, only the incumbent President has the authority to
exercise constituent power; the referendum-plebiscite is a step towards normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction,
docketed as L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971
Constitutional Convention, asserting that the power to propose amendments to, or
revision of the Constitution during the transition period is expressly conferred on the
interim National Assembly under Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on October 5,
1976 by RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as
L- 44714, to restrain the implementation of Presidential Decrees relative to the
forthcoming Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers under Martial Law,
the incumbent President cannot act as a constituent assembly to propose amendments to
the Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and
1973; the submission of the proposed amendments in such a short period of time for
deliberation renders the plebiscite a nullity; to lift Martial Law, the President need not
consult the people via referendum; and allowing 15-.year olds to vote would amount to an
amendment of the Constitution, which confines the right of suffrage to those citizens of
the Philippines 18 years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad
and Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of
Presidential Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid
source of a stature Presidential Decrees are of such nature-may be contested by one who
will sustain a direct injuries as a in result of its enforcement. At the instance of taxpayers,
laws providing for the disbursement of public funds may be enjoined, upon the theory that
the expenditure of public funds by an officer of the State for the purpose of executing an
unconstitutional act constitutes a misapplication of such funds. 4 The breadth of
Presidential Decree No. 991 carries all appropriation of Five Million Pesos for the effective
implementation of its purposes. 5 Presidential Decree No. 1031 appropriates the sum of
Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed petitioners
as taxpayers in the lawful expenditure of these amounts of public money sufficiently
clothes them with that personality to litigate the validity of the Decrees appropriating said
funds. Moreover, as regards taxpayer's suits, this Court enjoys that open discretion to
entertain the same or not. 7 For the present case, We deem it sound to exercise that
discretion affirmatively so that the authority upon which the disputed Decrees are
predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one, lying
outside the domain of judicial review. We disagree. The amending process both as to
proposal and ratification, raises a judicial question. 8This is especially true in cases where
the power of the Presidency to initiate the of normally exercised by the legislature, is
seriously doubted. Under the terms of the 1973 Constitution, the power to propose
amendments o the constitution resides in the interim National Assembly in the period of
transition (See. 15, Transitory provisions). After that period, and the regular National
Assembly in its active session, the power to propose amendments becomes ipso facto the
prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973
constitution). The normal course has not been followed. Rather than calling the National
Assembly to constitute itself into a constituent assembly the incumbent President
73 | P a g e
undertook the proposal of amendments and submitted the proposed amendments thru
Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16.
Unavoidably, the regularity regularity of the procedure for amendments, written in
lambent words in the very Constitution sought to be amended, raises a contestable issue.
The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport
to have the force and effect of legislation are assailed as invalid, thus the issue of the
validity of said Decrees is plainly a justiciable one, within the competence of this Court to
pass upon. Section 2 (2), Article X of the new Constitution provides: "All cases involving
the constitutionality of a treaty, executive agreement, or law may shall be heard and
decided by the Supreme Court en banc and no treaty, executive agreement, or law may
be declared unconstitutional without the concurrence of at least ten Members. ..." The
Supreme Court has the last word in the construction not only of treaties and statutes, but
also of the Constitution itself The amending, like all other powers organized in the
Constitution, is in form a delegated and hence a limited power, so that the Supreme Court
is vested with that authorities to determine whether that power has been discharged
within its limits.
Political questions are neatly associated with the wisdom, of the legality of a particular act.
Where the vortex of the controversy refers to the legality or validity of the contested act,
that matter is definitely justiciable or non-political. What is in the heels of the Court is not
the wisdom of the act of the incumbent President in proposing amendments to the
Constitution, but his constitutional authority to perform such act or to assume the power
of a constituent assembly. Whether the amending process confers on the President that
power to propose amendments is therefore a downright justiciable question. Should the
contrary be found, the actuation of the President would merely be a brutum fulmen. If the
Constitution provides how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority assumed was
valid or not.10
We cannot accept the view of the Solicitor General, in pursuing his theory of non-
justiciability, that the question of the President's authority to propose amendments and
the regularity of the procedure adopted for submission of the proposal to the people
ultimately lie in the judgment of the A clear Descartes fallacy of vicious circle. Is it not that
the people themselves, by their sovereign act, provided for the authority and procedure
for the amending process when they ratified the present Constitution in 1973? Whether,
therefore, the constitutional provision has been followed or not is the proper subject of
inquiry, not by the people themselves of course who exercise no power of judicial but by
the Supreme Court in whom the people themselves vested that power, a power which
includes the competence to determine whether the constitutional norms for amendments
have been observed or not. And, this inquiry must be done a prior not a posterior i.e.,
before the submission to and ratification by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases underline the
preference of the Court's majority to treat such issue of Presidential role in the amending
process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the
Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to
the Pilipino people (on January 15, 1973) for ratification or rejection the Constitution of
the Republic of the Philippines proposed by the 1971 Constitutional Convention and
appropriating fund s therefore "is a political one, was rejected and the Court unanimously
considered the issue as justiciable in nature. Subsequently in the Ratification
Cases12 involving the issue of whether or not the validity of Presidential Proclamation No.
1102. announcing the Ratification by the Filipino people of the constitution proposed by
the 1971 Constitutional Convention," partakes of the nature of a political question, the
affirmative stand of' the Solicitor General was dismissed, the Court ruled that the question
raised is justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in
the aforementioned plebiscite cases, We rejected the theory of the respondents therein
that the question whether Presidential Decree No. 73 calling a plebiscite to be held on
January 15, 1973, for the ratification or rejection of the proposed new Constitution, was
valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook
of a political nature, and We unanimously declared that the issue was a justiciable one.
With Identical unanimity. We overruled the respondent's contention in the 1971 habeas
corpus cases, questioning Our authority to determine the constitutional sufficiency of the
factual bases of the Presidential proclamation suspending the privilege of the writ of
habeas corpus on August 21, 1971, despite the opposite view taken by this Court in
Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the former
case, which view We, accordingly, abandoned and refused to apply. For the same reason,
We did not apply and expressly modified, in Gonzales vs. Commission on Elections, the
political-question theory adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs.
Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was decisively refused
by the Court. Chief Justice Concepcion continued: "The reasons adduced in support thereof
are, however, substantially the same as those given in support on the political question
theory advanced in said habeas corpus and plebiscite cases, which were carefully
considered by this Court and found by it to be legally unsound and constitutionally
untenable. As a consequence. Our decisions in the aforementioned habeas corpus cases
partakes of the nature and effect of a stare decisis which gained added weight by its
virtual reiteration."
II The amending process as laid out in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution may
be proposed by the National Assembly upon a vote of three-fourths of all
its Members, or by a constitutional convention. (2) The National Assembly
may, by a vote of two-thirds of all its Members, call a constitutional
convention or, by a majority vote of all its Members, submit the question
of calling such a convention to the electorate in an election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be
valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not later than three months after the approval of such
amendment or revision.
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In the present period of transition, the interim National Assembly instituted in the
Transitory Provisions is conferred with that amending power. Section 15 of the Transitory
Provisions reads:
SECTION 15. The interim National Assembly, upon special call by the
interim Prime Minister, may, by a majority vote of all its Members, propose
amendments to this Constitution. Such amendments shall take effect when
ratified in accordance with Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the nation, i.e.,
period of normalcy and period of transition. In times of normally, the amending process
may be initiated by the proposals of the (1) regular National Assembly upon a vote of
three-fourths of all its members; or (2) by a Constitutional Convention called by a vote of
two-thirds of all the Members of the National Assembly. However the calling of a
Constitutional Convention may be submitted to the electorate in an election voted upon by
a majority vote of all the members of the National Assembly. In times of transition,
amendments may be proposed by a majority vote of all the Members of the National
Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is
vested with that prerogative of discretion as to when he shall initially convene the interim
National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said:
"The Constitutional Convention intended to leave to the President the determination of the
time when he shall initially convene the interim National Assembly, consistent with the
prevailing conditions of peace and order in the country." Concurring, Justice Fernandez,
himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates to
the Constitutional Convention voted on the Transitory Provisions, they were aware of the
fact that under the same, the incumbent President was given the discretion as to when he
could convene the interim National Assembly; it was so stated plainly by the sponsor,
Delegate Yaneza; as a matter of fact, the proposal that it be convened 'immediately',
made by Delegate Pimentel (V) was rejected. The President's decision to defer the
convening of the interim National Assembly soon found support from the people
themselves. In the plebiscite of January 10-15, 1973, at which the ratification of the 1973
Constitution was submitted, the people voted against the convening of the interim
National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the convening of the interim
National Assembly. Again, in the referendum of February 27, 1975, the proposed question
of whether the interim National Assembly shall be initially convened was eliminated,
because some of the members of Congress and delegates of the Constitutional
Convention, who were deemed automatically members of the I interim National Assembly,
were against its inclusion since in that referendum of January, 1973, the people had
already resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of
amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not
legislating when engaged in the amending process.16 Rather, it is exercising a peculiar
power bestowed upon it by the fundamental charter itself. In the Philippines, that power is
provided for in Article XVI of the 1973 Constitution (for the regular National Assembly) or
in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily it is
the business of the legislating body to legislate for the nation by virtue of constitutional
conferment amending of the Constitution is not legislative in character. In political science
a distinction is made between constitutional content of an organic character and that of a
legislative character'. The distinction, however, is one of policy, not of law.17 Such being
the case, approval of the President of any proposed amendment is a misnomer 18 The
prerogative of the President to approve or disapprove applies only to the ordinary cases of
legislation. The President has nothing to do with proposition or adoption of amendments to
the Constitution. 19
III Concentration of Powers in the President during crisis government.
1. In general, the governmental powers in crisis government the Philippines is a crisis
government today are more or less concentrated in the President. 20 According to Rossiter,
"(t)he concentration of government power in a democracy faced by an emergency is a
corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers.
In most free states it has generally been regarded as imperative that the total power of
the government be parceled out among three mutually independent branches executive,
legislature, and judiciary. It is believed to be destructive of constitutionalism if any one
branch should exercise any two or more types of power, and certainly a total disregard of
the separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very definition
of tyranny.' In normal times the separation of powers forms a distinct obstruction to
arbitrary governmental action. By this same token, in abnormal times it may form an
insurmountable barrier to a decisive emergency action in behalf of the state and its
independent existence. There are moments in the life of any government when all powers
must work together in unanimity of purpose and action, even if this means the temporary
union of executive, legislative, and judicial power in the hands of one man. The more
complete the separation of powers in a constitutional system, the more difficult and yet
the more necessary will be their fusion in time of crisis. This is evident in a comparison of
the crisis potentialities of the cabinet and presidential systems of government. In the
former the all-important harmony of legislature and executive is taken for granted; in the
latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is
more easily established and more trustworthy than presidential dictatorship. The power of
the state in crisis must not only be concentrated and expanded; it must also be freed from
the normal system of constitutional and legal limitations. 21 John Locke, on the other hand,
claims for the executive in its own right a broad discretion capable even of setting aside
the ordinary laws in the meeting of special exigencies for which the legislative power had
not provided. 22 The rationale behind such broad emergency powers of the Executive is the
release of the government from "the paralysis of constitutional restrains" so that the crisis
may be ended and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a conceded
valid at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2)
of the Transitory Provisions, thus:23
The incumbent President of the Philippines shall initially convene the
interim National Assembly and shall preside over its sessions until the
interim Speaker shall have been elected. He shall continue to exercise his
75 | P a g e
 powers and prerogatives under the nineteen hundred and thirty-five
Constitution and the powers vested in the President and the Prime Minister
under this Constitution until the calls upon the interim National Assembly
to elect the interim President and the interim Prime Minister, who shall
then exercise their respective powers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President shall be part of the law of the
land, and shall remain valid, binding, and effective even after lifting of
martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees,
instructions, or other acts of the incumbent President, or unless expressly
and explicitly modified or repealed by the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate,
"that the Constitutional Convention, while giving to the President the discretion when to
call the interim National Assembly to session, and knowing that it may not be convened
soon, would create a vacuum in the exercise of legislative powers. Otherwise, with no one
to exercise the lawmaking powers, there would be paralyzation of the entire governmental
machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any
constitutional dictatorship which extends over a period of time. The separation of
executive and legislature ordained in the Constitution presents a distinct obstruction to
efficient crisis government. The steady increase in executive power is not too much a
cause for as the steady increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in their behalf, which involve
rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis greater
than war. In short, while conventional constitutional law just confines the President's
power as Commander-in-Chief to the direction of the operation of the national forces, yet
the facts of our political, social, and economic disturbances had convincingly shown that in
meeting the same, indefinite power should be attributed to tile President to take
emergency measures 25
IV Authority of the incumbent President t to propose amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim
National Assembly during the transition period. However, the initial convening of that
Assembly is a matter fully addressed to the judgment of the incumbent President. And, in
the exercise of that judgment, the President opted to defer convening of that body in utter
recognition of the people's preference. Likewise, in the period of transition, the power to
propose amendments to the Constitution lies in the interim National Assembly upon
special call by the President (See. 15 of the Transitory Provisions). Again, harking to the
dictates of the sovereign will, the President decided not to call the interim National
Assembly. Would it then be within the bounds of the Constitution and of law for the
President to assume that constituent power of the interim Assembly vis-a-vis his
assumption of that body's legislative functions? The answer is yes. If the President has
been legitimately discharging the legislative functions of the interim Assembly, there is no
reason why he cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although peculiar, to its gross
legislative power. This, of course, is not to say that the President has converted his office
into a constituent assembly of that nature normally constituted by the legislature. Rather,
with the interim National Assembly not convened and only the Presidency and the
Supreme Court in operation, the urges of absolute necessity render it imperative upon the
President to act as agent for and in behalf of the people to propose amendments to the
Constitution. Parenthetically, by its very constitution, the Supreme Court possesses no
capacity to propose amendments without constitutional infractions. For the President to
shy away from that actuality and decline to undertake the amending process would leave
the governmental machineries at a stalemate or create in the powers of the State a
destructive vacuum, thereby impeding the objective of a crisis government "to end the
crisis and restore normal times." In these parlous times, that Presidential initiative to
reduce into concrete forms the constant voices of the people reigns supreme. After all,
constituent assemblies or constitutional conventions, like the President now, are mere
agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of January
1973 and February 1975, the people had already rejected the calling of the interim
National Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian,
the Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga
Barangay, representing 42,000 barangays, about the same number of Kabataang
Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-
provinces, and 60 cities had informed the President that the prevailing sentiment of the
people is for the abolition of the interim National Assembly. Other issues concerned the
lifting of martial law and amendments to the Constitution .27 The national organizations of
Sangguniang Bayan presently proposed to settle the issues of martial law, the interim
Assembly, its replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be held on October 16
.28 The Batasang Bayan (legislative council) created under Presidential Decree 995 of
September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91
members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng mga
Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on
October 16, the previously quoted proposed amendments to the Constitution, including
the issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to
the President the submission of the proposed amendments to the people on October 16.
All the foregoing led the President to initiate the proposal of amendments to the
Constitution and the subsequent issuance of Presidential Decree No, 1033 on September
22, 1976 submitting the questions (proposed amendments) to the people in the National
Referendum-Plebiscite on October 16.
V The People is Sovereign
1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In
the Philippines, a republican and unitary state, sovereignty "resides in the people and all
government authority emanates from them .30 In its fourth meaning, Savigny would treat
people as "that particular organized assembly of individuals in which, according to the
Constitution, the highest power exists." 31 This is the concept of popular sovereignty. It
means that the constitutional legislator, namely the people, is sovereign 32 In
consequence, the people may thus write into the Constitution their convictions on any
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subject they choose in the absence of express constitutional prohibition. 33 This is because,
as Holmes said, the Constitution "is an experiment, as all life is all experiment."34 "The
necessities of orderly government," wrote Rottschaefer, "do not require that one
generation should be permitted to permanently fetter all future generations." A
constitution is based, therefore, upon a self-limiting decision of the people when they
adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to exercise
their sovereign power as constitutional legislator. The proposed amendments, as earlier
discussed, proceed not from the thinking of a single man. Rather, they are the collated
thoughts of the sovereign will reduced only into enabling forms by the authority who can
presently exercise the powers of the government. In equal vein, the submission of those
proposed amendments and the question of martial law in a referendum-plebiscite
expresses but the option of the people themselves implemented only by the authority of
the President. Indeed, it may well be said that the amending process is a sovereign act,
although the authority to initiate the same and the procedure to be followed reside
somehow in a particular body.
VI Referendum-Plebiscite not rendered nugatory by the participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want
martial law to be continued? - is a referendum question, wherein the 15-year olds may
participate. This was prompted by the desire of the Government to reach the larger mas of
the people so that their true pulse may be felt to guide the President in pursuing his
program for a New Order. For the succeeding question on the proposed amendments, only
those of voting age of 18 years may participate. This is the plebiscite aspect, as
contemplated in Section 2, Article XVI of the new Constitution. 36 On this second question,
it would only be the votes of those 18 years old and above which will have valid bearing
on the results. The fact that the voting populace are simultaneously asked to answer the
referendum question and the plebiscite question does not infirm the referendum-
plebiscite. There is nothing objectionable in consulting the people on a given issue, which
is of current one and submitting to them for ratification of proposed constitutional
amendments. The fear of commingled votes (15-year olds and 18-year olds above) is
readily dispelled by the provision of two ballot boxes for every barangay center, one
containing the ballots of voters fifteen years of age and under eighteen, and another
containing the ballots of voters eighteen years of age and above. 37 The ballots in the
ballot box for voters fifteen years of age and under eighteen shall be counted ahead of the
ballots of voters eighteen years and above contained in another ballot box. And, the
results of the referendum-plebiscite shall be separately prepared for the age groupings,
i.e., ballots contained in each of the two boxes.38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum"
is merely consultative in character. It is simply a means of assessing public reaction to the
given issues submitted to the people foe their consideration, the calling of which is derived
from or within the totality of the executive power of the President.39 It is participated in by
all citizens from the age of fifteen, regardless of whether or not they are illiterates, feeble-
minded, or ex- convicts .40 A "plebiscite," on the other hand, involves the constituent act
of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen
years of age or over, and who shall have resided in the Philippines for at least one year
and in the place wherein they propose to vote for at least six months preceding the
election Literacy, property or any other substantive requirement is not imposed. It is
generally associated with the amending process of the Constitution, more particularly, the
ratification aspect.
VII 1. There appeals to be no valid basis for the claim that the regime of martial law
stultifies in main the freedom to dissent. That speaks of a bygone fear. The martial law
regime which, in the observation of Justice Fernando, 41 is impressed with a mild character
recorded no State imposition for a muffled voice. To be sure, there are restraints of the
individual liberty, but on certain grounds no total suppression of that liberty is aimed at.
The for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of
expression and assembly The President himself had announced that he would not
countenance any suppression of dissenting views on the issues, as he is not interested in
winning a "yes" or "no" vote, but on the genuine sentiment of the people on the issues at
hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out loud
and clear their adverse views on the proposed amendments and even (in the valid
ratification of the 1973 Constitution, which is already a settled matter.43 Even government
employees have been held by the Civil Service Commission free to participate in public
discussion and even campaign for their stand on the referendum-plebiscite issues.44
VIII Time for deliberation is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too short for
free debates or discussions on the referendum-plebiscite issues. The questions are not
new. They are the issues of the day. The people have been living with them since the
proclamation of martial law four years ago. The referendums of 1973 and 1975 carried the
same issue of martial law. That notwithstanding, the contested brief period for discussion
is not without counterparts in previous plebiscites for constitutional amendments. Justice
Makasiar, in the Referendum Case, recalls: "Under the old Society, 15 days were allotted
for the publication in three consecutive issues of the Official Gazette of the women's
suffrage amendment to the Constitution before the scheduled plebiscite on April 30, 1937
(Com. Act No. 34). The constitutional amendment to append as ordinance the complicated
Tydings-Kocialskowski was published in only three consecutive issues of the Official
Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940
Constitutional amendments providing for the bicameral Congress, the reelection of the
President and Vice President, and the creation of the Commission on Elections, 20 days of
publication in three consecutive issues of the Official Gazette was fixed (Com Act No. 517).
And the Parity Amendment, an involved constitutional amendment affecting the economy
as well as the independence of the Republic was publicized in three consecutive issues of
the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)."45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to the
specific date when the plebiscite shall be held, but simply states that it "shall be held not
later than three months after the approval of such amendment or revision." In Coleman v.
Miller, 46 the United States Supreme court held that this matter of submission involves "an
appraisal of a great variety of relevant conditions, political, social and economic," which
"are essentially political and not justiciable." The constituent body or in the instant cases,
77 | P a g e
the President, may fix the time within which the people may act. This is because proposal
and ratification are not treated as unrelated acts, but as succeeding steps in a single
endeavor, the natural inference being that they are not to be widely separated in time;
second, it is only when there is deemed to be a necessity therefor that amendments are to
be proposed, the reasonable implication being that when proposed, they are to be
considered and disposed of presently, and third, ratification is but the expression of the
approbation of the people, hence, it must be done contemporaneously. 47 In the words of
Jameson, "(a)n alteration of the Constitution proposed today has relation to the sentiment
and the felt needs of today, and that, if not ratified early while that sentiment may fairly
be supposed to exist. it ought to be regarded as waived, and not again to be voted upon,
unless a second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033
political or justiciable?
2. During the present stage of the transition period, and under, the environmental
circumstances now obtaining, does the President possess power to propose amendments
to the Constitution as well as set up the required machinery and prescribe the procedure
for the ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments within the time frame
allowed therefor a sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M.
Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes
Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable,
while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the
view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate
Justices Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando,
conformably to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183),
specifically dissents from the proposition that there is concentration of powers in the
Executive during periods of crisis, thus raising serious doubts as to the power of the
President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Aquino, Concepcion Jr. and Martin are of the view that there is a sufficient and proper
submission of the proposed amendments for ratification by the people. Associate Justices
Barredo and Makasiar expressed the hope, however that the period of time may be
extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the
question is political and therefore beyond the competence and cognizance of this Court,
Associate Justice Fernando adheres to his concurrence in the opinion of Chief Justice
Concepcion in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee and
MUNOZ Palma hold that prescinding from the President's lack of authority to exercise the
constituent power to propose the amendments, etc., as above stated, there is no fair and
proper submission with sufficient information and time to assure intelligent consent or
rejection under the standards set by this Court in the controlling cases of Gonzales, supra,
and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the three petitions at bar. For reasons as
expressed in his separate opinion, Associate Justice Fernando concurs in the result.
Associate Justices Teehankee and Munoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed.
This decision is immediately executory.
SO ORDERED.
G.R. No. L-21327 January 14, 1924
TEODORO ABUEVA, ET AL., petitioners,
vs.
LEONARD WOOD, ET AL., respondents.
JOHNSON, J.:
This is an original action commenced in the Supreme Court by the petitioners for the writ
of mandamus, to compel the respondents to exhibit to the petitioners and to permit them
to examine all the vouchers and other documentary proofs in their possession, showing
the disbursements and expenditures made by them out of the funds of the Independence
Commission. To the petition each of the respondents demurred. In order that there may
be a clear understanding of the arguments in support of the demurrer, a statement of the
facts as they appear in the petition becomes necessary. They are:
(1) That the petitioners are and have been for more than six months members of
the Independence Commission, created by virtue of the Concurrent Resolution No.
20 (vol. 14, Public Laws, p. 343), adopted on the 7th day of November, 1918, by
the Philippine Legislature; and that the creation of said Independence Commission
had been confirmed and ratified by Joint Resolution No. 13 (vol. 14, Public Laws,
p. 342), adopted by the Philippine Legislature on the 8th day of March, 1919;
(2) That all and each one of the petitioners are actually members of the Philippine
Legislature, elected at the general election held on the 6th day of June, 1922; that
the first twenty-six of the petitioners are members of the House of
Representatives and the last four are members of the Senate of the Philippine
Islands; that they all belong to the democratic party;
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(3) That the respondent Leonard Wood is the Governor-General of the Philippine
Islands, with his residence and office in the City of Manila; that Manuel L. Quezon
and Manuel Roxas are Presidents of the Independence Commission; that Paciano
Dizon is the Acting Auditor of the Philippine Islands; that Teodoro M. Kalaw is the
Executive Secretary of the Independence Commission, with a salary of P12,000
per annum, and that Fernando Mariano Guerrero is the Secretary of the
Independence Commission;
(4) That by Act No. 2933 the Legislature of the Philippine Islands provided for a
standing appropriation of one million pesos (P1,000,000) per annum, payable out
of any funds in the Insular Treasury, not otherwise appropriated, to defray the
expenses of the Independence Commission, including publicity and all other
expenses in connection with the performance of its duties; that said appropriation
shall be considered as included in the annual appropriation for the Senate and the
House of Representatives, at the rate of P500,000 for each house, although the
appropriation act hereafter approved may not make any specific appropriation for
said purpose; with the proviso that no part of said sum shall be set upon the
books of the Insular Auditor until it shall be necessary to make the payment or
payments authorized by said act;
(5) That the petitioners are citizens and taxpayers and persons interested in
knowing how the public funds are expended; that as members of the Legislature
they are entrusted with the honest investment, disposition, and administration of
the public funds of the Government; that as members of the Independence
Commission they are legally obliged to prevent the funds of said Commission from
being squandered, and to prevent any investments and illicit expenses in open
contravention of the purposes of the law; that the petitioners have verbally and by
writing requested the respondents many times to exhibit to them and to permit
them to see and examine the vouchers and other documentary proofs relating to
the expenditures and payments made out of the funds appropriated for the use of
the Independence Commission;
(6) That notwithstanding the fact that the original vouchers showing the expenses
paid out of the Independence Commission fund are in the possession of the
respondent Paciano Dizon, as Acting Insular Auditor, who is under the control and
authority of the respondent Leonard Wood as Governor-General; and notwithsta
the fact that the duplicates of said vouchers are in the possession of the officers of
the Independence Commission, Manuel L. Quezon, Manuel Roxas, Teodoro M.
Kalaw, and Fernando Mariano Guerrero, said respondents taking advantage of all
clases of pretexts and subterfuges, have denied and continue denying to permit
the petitioners from examining said vouchers and documentary proofs of the
expenditures of the funds of said Independence Commission, thus trampling upon
and denying the rights of the petitioners in their capacity as citizens of the
Philippine Islands, as members of the Legislature, and as members of the
Independence Commission, and inflicting an unpardonable offense upon the
electors of the Philippine Islands, who confided their votes and their representation
in the petitioners;
(7) That the petitioners not only have a recognized right under the law, but also
the important duty of knowing how the funds of the Commission are managed;
that much of the funds of the Independence Commission is being used for
purposes contrary to the Concurrent Resolution No. 20 of the 7th day of
November, 1918;
(8) That the petitioners are without other plain, speedy, and adequate remedy.
To the petition the Attorney-General, Antonio Villa-Real, appeared as attorney for the
respondents Leonard Wood, as Governor-General, Manuel L. Quezon and Manuel Roxas as
Chairmen of the Independence Commission, and entered a special appearance for the
purpose of objecting to the jurisdiction of the court over his clients, upon the ground, first,
that Leonard Wood, as Governor-General of the Philippine Islands and head of the
executive department of the Philippine Government, is not subject to the control or
supervision of the courts, and second, that Manuel L. Quezon and Manuel Roxas, as
Chairman of the Independence Commission, are mere agents of the Philippine Legislature
and cannot be controlled or interfered with by the courts.
The Attorney-General appeared on behalf of Paciano Dizon, as Acting Auditor of the
Philippine Islands, and demurred to the petition upon the ground:
First, that the court has no jurisdiction of the subject of the action because section
24 of the Jones Law provides that: "The administrative jurisdiction of the Auditor
over accounts, whether of funds or property, and all vouchers and records
pertaining thereto, shall be exclusive;" and also because the determination of
whether the accounts of the expenses of the Commission of Independence should
be shown to the plaintiffs or not, is a question of policy and administrative
discretion, and is therefore not justiciable;
Second, that the complaint does not state a cause of action in that (a) there is no
provision of law making it the duty of the Auditor to exhibit the vouchers of
expenses of the Independence Commission to anybody that may ask for the
privilege, and it is a well-established rule that mandamus will not issue if there is
no legal duty to be enforced; (b) the work of the Independence Commission is
largely of a political and confidential nature, so that the granting of the writ to
compel the exhibition of its records to the plaintiffs or to the public in general
would be contrary to public interest; (c) the plaintiffs have another plain, speedy,
and adequate remedy at law, to wit: by addressing their petition to the
Independence Commission or to the Philippine Legislature itself, of both of which
bodies the said plaintiffs are members;
Third, the plaintiffs have no beneficial interest in the act which they seek to have
performed, or any particular right to be protected thereby, independent of that
which they hold in common with the public at large, to make them proper parties
to these proceedings and to entitle them to maintain the same;
Fourth, that the complaint is ambiguous, unintelligible, and uncertain.
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The Attorney-General appeared on behalf of the respondents Teodoro M. Kalaw and
Fernando Mariano Guerrero, and demurred to the petition upon the following grounds:
First, that the court has no jurisdiction of the subject-matter of the action, because
(a) the Commission of Independence is a commission of the Philippine Legislature;
that the funds appropriated by Act No. 2933 to defray the expenses of said
Commission is, under the same law, deemed a part of the appropriation for the
Legislature; that the vouchers and other documents relative to the disbursement
of said funds form a part of the record of the Legislature, over which the
Legislature has exclusive control; that it is for the Legislature to decide whether or
not its record should be shown to the public, and that the courts cannot determine
that question without encroaching upon the domain of a coordinate branch of the
government; and (b) that said respondents are not officers with specific duties
assigned by law but are acting as mere agents of the Philippine Legislature, and as
agents of the Legislature, their action cannot be controlled by the court;
Second, that the petitioners have no beneficial interest in the act which they seek
to have performed, or any right to be protected thereby, independent from that
which they hold in common with the public at large, to make them proper parties
to the proceedings and to entitle them to maintain the same;
Third, that there is a misjoinder of parties defendant, in that the respondents are
not proper parties to these proceedings for the reason that, as mere officers of the
Commission of Independence, they have neither the right nor the power to exhibit
the records of the said Commission without the authorization or consent of the
latter;
Fourth, that the complaint does not state facts sufficient to constitute a cause of
action, in that: (a) there is no provision of law making it the duty of the Philippine
Legislature, of the Commission of Independence, and much less of both or either
of these respondents, to exhibit the records of the Commission to any person that
may ask for the same; (b) the duties sought to be enforced by the petitioners,
granting that they exist, are, by nature, discretionary and political, their
performance being left to the judgment of these respondents or of their superiors;
(c) that the plaintiffs have another plain, speedy and adequate remedy, to wit: by
addressing their petition to the Commission of Independence or to the Philippine
Legislature itself. The complaint does not show that this has been done. The
plaintiffs not having exhausted their remedy at law, they are not entitled to the
extraordinary remedy of mandamus; (d) that the granting will be prejudicial to the
public interest;
Fifth, the petition is ambiguous, unintelligible, and uncertain.
The particular defense presented by each of the respondents has been set out in full in
order that their respective positions might be clearly shown. At the close of the argument
each requested ten days in which to present a memorandum in support of his respective
contention. Later, the Attorney-General presented an extensive memorandum for the
respondents in support of his contention. The petitioners failed to present a memorandum
in support of their contention.
The petition calls upon the judicial department of the Government to direct some of the
officials of the executive and Legislative departments to permit the petitioners to see and
examine the vouchers showing the various expenditures of the "Independence
Commission," out of the appropriation authorized by Act No. 2933. The petition presents
no question concerning the legality of said appropriation. That would be quite a different
question from the one which were are considering. The petition presents but one question
and that is: Has the judicial department of the Government jurisdiction or authority to
direct either or both of the other departments of the Government to do or to perform any
duty which pertains particularly to those departments of the Government?
The question presented is not a new one, and this is not the first time that it has been
presented to the courts for solution. Neither is it the first time it has been presented to the
courts here.
The Government of the United State in the Philippine Islands is divided under its charter or
constitution (the Organic Act) into three great, separate, distinct, and independent
departments; the executive, the legislative, and the judicial. The duties of each
department are well defined and limited to certain fields of governmental operation. This
government is modeled after the Federal or state governments of the United States, and
possesses a complete governmental organization with executive, legislative, and judicial
departments which are exercising functions, as independent of each other, as the Federal
or state governments.
We shall consider the questions in the order in which they have been argued by the
respondents.
First. Have the courts of the Philippine Islands jurisdiction to issue the writ
of mandamus against Leonard Wood, as Governor-General, to compel him to permit the
petitioners to see and examine the vouchers in question? In the first place section 222 of
Act No. 190 provides generally when courts may issue the writ of mandamus. Said section
provides that "when the complaint in an action in a court of first instance alleges that any
inferior tribunal, corporation, board, or person unlawfully neglects the performance of
an act which the law specially enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes the plaintiff from the use and enjoyment of a right or office to which
he is entitled and from which he is unlawfully precluded by such inferior tribunal,
corporation, board, or person, and the court, on trial, finds the allegations of the complaint
to be true, it may, if there is no other plain, speedy, and adequate remedy in the ordinary
courts (course) of law, render a judgment granting a peremptory order against the
defendant, commanding him, immediately after the receipt of such order, or at some other
specified time, to do the act required (by law or resulting from an office, trust, or station)
to be done to protect the rights of the plaintiff." Section 515 of Act No. 190 confers upon
the Supreme Court the same powers and duties conferred upon the courts of first instance
by section 222.
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It will be noted from said section 222 (and 515) that in order for the courts to issue the
extraordinary remedy of mandamus, it must be shown that the persons mentioned therein
have unlawfully neglected "the performance of an act which the law specially enjoins as a
duty resulting from an office, trust, or station," or unlawfully excluded "the plaintiff from
the use and enjoyment of a right or office to which he is entitled, etc."
There is no allegation in the petition in the present case that Leonard Wood, as Governor-
General, has unlawfully neglected the performance of an act which the law specially
enjoins as a duty upon him resulting from his office, trust, or station, or has unlawfully
excluded the plaintiffs from the use or enjoyment of a right or office to which they are
entitled. The only allegation in the complaint relating to the duty or the neglected duty on
the part of Leonard Wood as Governor-General is, "that the original of said vouchers are in
possession of the respondent Paciano Dizon as Acting Insular Auditor, who is under his
authority and high general inspection as Governor-General." There is no allegation or
intimation in the petition that Leonard Wood, as Governor-General, has neglected the
performance of an act which the law specially enjoins upon him as a duty resulting from
an office, trust, or station or has unlawfully excluded the petitioners from the use or
enjoyment of a right or office to which they are entitled.
The failure of sufficient allegations in the complaint might therefore be sufficient reason for
denying the right prayed for. The demurrer, however, is not based upon that ground. It is
based upon the ground that this department of the Government, even though the
allegations of the petition were sufficient, is without authority or jurisdiction to grant the
remedy prayed for. The Attorney-General preferred to place his objection upon broader
grounds that the mere failure of allegations in the petition. The Attorney-General
challenges the attention of the petitioners upon the question of jurisdiction. The petitioners
accepted the challenge and the cause was argued upon the theory that the courts have no
jurisdiction at all in the premises to grant the remedy prayed for as against the Governor-
General of the Philippine Islands. The question whether or not the courts have jurisdiction
to control the official acts of the executive and legislative departments of the Government
has come before the courts a great many times. The courts in the United States have not
always been uniform in their conclusion.
The question was presented to this court in 1910 in the case of Severino vs. Governor-
General (16 Phil., 366). In that case an original petition was presented in the Supreme
Court, praying for the writ of mandamus against the Governor-General of the Philippine
Islands to compel him to call a special election for the purpose of electing a municipal
president in the town of Silay. After a very careful consideration of the question and the
power of this court to control the action of the Governor-General by mandamus, the court
announced, through a very extended opinion by Mr. Justice Trent, that we could not and
should not entertain a complaint which seeks to control or interfere with the official duties
of the Governor-General. In the course of that decision practically every case which had
been decided up to that time, pro and con, was carefully considered by the court. After a
full consideration of all of the decisions pro and con, the conclusion was reached that the
better doctrine to be adopted in the Philippine Islands was, that which the court then
adopted, to the effect that the judicial department would not interfere by mandamus or
otherwise for the purpose of controlling or directing the action of the officials of a
coordinate department of the Government. The writ of mandamus was originally a
prerogative writ and issued only by the King or the representative of the Sovereign. It was
called a prerogative writ from the fact that it proceeded from the King himself in his Court
of King's Bench, superintending the police and preserving the peace of the realm, and it
was granted where one is entitled to an office or function and there was no other remedy.
(Opinion of Lord Mansfield, Chief Justice, in the case of King vs. Barker, 1 Black. W., 352.)
Blackstone terms the writ of mandamus "a high prerogative writ of a most extensive
remedial nature" (3 Blackstone Commentaries, 110) and it is uniformly referred to in the
earlier decisions as a prerogative remedy, and spoken of by many judges as one of the
flowers of the King's Bench. It is a remedy of very ancient origin, so ancient that Dr. High
in his work on Extraordinary Legal Remedies says that its early history is involved in
obscurity and has been the cause of much curious research and of many conflicting
opinions. It seems, originally, to have been one of that large class of writs or mandates by
which the Sovereign of England directed the performance of any desired act by his
subjects. It finally, in the time of the reigns of Edward II and Edward III, came to be
known as a judicial writ and was issued by authority of the courts. In the United States,
however, and in all of the states of the Union the writ of mandamus has never been
regarded as a judicial remedy. It is now generally considered as an ordinary action
obtained by petition, demurrer, and answer, as any other remedy is obtained through the
courts.
One of the first cases, and perhaps the first which came before the Supreme Court of the
United States in which the writ of mandamus was prayed for against an officer of the
executive department of the Government, was that of Marbury vs. Madison (1 Cranch,
U.S., 137-172). In that case Marburry had been appointed as a justice of the peace for the
City of Washington, D.C., by President Adams, as one of his last official acts as President
of the United States. The commission of the appointee was properly executed, but had not
been delivered at the time when President Adams cased to be President of the United
States and Mr. Jefferson became President. Mr. Jefferson directed that the commission
appointing Mr. Marbury should not be delivered. As a result, an action was commenced
against Mr. Madison to obtain the writ of mandamus, requiring him to deliver said
commission. The Supreme Court, after due deliberation and consideration of its own
powers in the premises, through a very able and learned opinion of Chief Justice Marshall,
reached the conclusion that it had no power or jurisdiction to issue the writ of mandamus,
and that, in the face of the fact that the Congress of the United States had provided for
the appointment of said justice of the peace and the issuing of a commission of
appointment. To have required Mr. Madison to deliver the commission of appointment,
would have been an interference with the discretion and duties of the executive
department of the Government, which the Supreme Court of the United states positively
refused to do upon the ground that the different departments of the government were
separate and independent, and that one department had no right, authority or jurisdiction
to intervene in the performance of the duties of the other for the purpose of directing and
controlling those duties. The delivery of the commission of appointment to Mr. Marbury
was entirely within the discretion of the executive department of the government.
Among the numerous cases which have been brought before the courts, involving the
question of the right of the courts to intervene in the administration of the other
independent departments of the government, we find one of the best-reasoned cases in
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that of Sutherland vs. Governor (29 Mich., 320). The decision in that case was rendered
by Mr. Justice Cooley, one of the greatest and ablest jurists who ever sat upon any of the
courts in the United States. In that case the Legislature of the State of Michigan had by
statute authorized the Governor of the state to issue a patent to certain public lands when
certain improvements had been made thereon by any citizen of the state. Mr. Sutherland
claimed that he had complied with the law and requested the Governor to issue to him a
patent for the particular land. The Governor refused for reasons which were sufficient for
himself. A petition for the writ of mandamus was presented in the Supreme Court, which
was denied upon the ground that the court was without jurisdiction to direct the Governor
of the state in the performance of any duty which pertained to his particular department.
In the course of that opinion, Mr. justice Cooley, speaking for the court, said:
There is no very clear and palpable line of distinction between those duties of the
governor which are political, and those which are to be considered miniterial
merely; and if we should undertake to draw one, and to declare that in all cases
falling on one side the line the governor was subject to judicial process, and in all
falling on the other he was independent of it, we should open the doors to an
endless train of litigation, and the cases would be numerous in which neither the
governor nor the parties would be able to determine whether his conclusion was,
under the law, to be final, and the courts would be appealed to by every
dissatisfied party to subject a coordinate department of the government to their
jurisdiction. However desirable a power in the judiciary to interfere in such cases
might seem from the standpoint of interested parties, it is manifest that harmony
of action between the executive and judicial departments would be directly
threatened, and that exercise of such power could only be justified on most
imperative reasons. Moreover, it is not customary in our republican government to
confer upon the governor duties merely ministerial, and in the performance of
which he is to be left no discretion whatever; and the presumption in all cases
must be, where a duty is devolved upon the chief executive of the State rather
than upon an inferior officer, that it is so because his superior judgment,
discretion, and sense of responsibility were confided in for a more accurate,
faithful, and discreet performance than could be relied upon if the duty were
devolved upon an officer chosen for inferior duties. . . .
We are not disposed, however, in the present case, to attempt on any grounds to
distinguish it from other cases of executive duty with a view to lay down a narrow
rule which, while disposing of this motion, may leave the grave question it
presents to be presented again and again in other cases which the ingenuity of
counsel may be able to distinguish in some minor particulars from the one before
us. If a broad general principle underlies all these cases, and requires the same
decision in all, it would scarcely be respectful to the governor, or consistent with
our own sense of duty, that we should seek to avoid its application and strive to
decide each in succession upon some narrow and perhaps technical point peculiar
to the special case, if such might be discovered.
The Government of the United States in the Philippine Islands is one whose powers have
been carefully apportioned between the three distinct departments which have their
powers alike limited and defined, and are of equal dignity and within their respective
spheres of action equally independent. It is a maxim, under the Government of the United
States, that the legislature cannot dictate to the courts what their judgments shall be, or
set aside or alter such judgments after they had been duly considered and rendered. It
could, says Mr. Justice Cooley, constitutional liberty would cease to exist; and if the
legislature could in like manner override executive action also, the government would
become only a despotism under popular forms. On the other hand, it would be readily
conceded that no court can compel the legislature to make or to refrain from making laws,
or to meet or adjourn at its command, or to take any action whatsoever, though the duty
to take it be made ever so clear by the constitution or the laws. If the courts could
intervene in the administration of the other independent departments of the government
or vice versa, they would break away from those checks and balances of government
which were meant, under our system of government, to be checks of cooperation and not
of antagonism or mastery, and would concentrate in their own hands something at least of
the power which the people, either directly or by the action of their representatives,
decided to entrust to the other departments of the government.
Under the form of government established by the United States in the Philippine Islands,
one department of the government has no power or authority to inquire into the acts of
another, which acts are performed within the discretion of the other department. That
doctrine has been uniformally maintained from the very commencement of the
government, not only in the Government of the United States in the Philippine Islands, but
as well in the Government of the United States and that of the States. The absurdity of
any other rule is manifest upon the slightest meditation. By the organic law of the
Philippine Islands the Governor-General is invested with certain important political powers,
in the exercise of which he is to use his own discretion and is accountable only to his
country in his political character and to his own conscience. The judicial and executive
departments of the government are distinct and independent, and neither is responsible to
the other for the performance of its duties and neither can enforce the performance of the
duties of the other. The dangers and difficulties which would grow out of the adoption of a
contrary rule are, by Chief Justice Taney in the case of Luther vs. Borden (7 Howard, U.S.,
1, 44), clearly and ably pointed out.
No government past or present, under the American flag, has more carefully and safely
guarded and protected by law the individual rights of life and property of its citizens, that
the Government of the United States and of the various States of the Union. Each of the
three departments of the government has separate and distinct functions to perform in
this great labor. The history of the United States covering nearly a century and a half
discloses the fact that each department has performed its part well. No one department of
the government can or ever has claimed, within its discretionary power, a greater zeal
than the others in its desire to promote the welfare of the individual citizen and to protect
his rights. They are all joined together in their respective spheres, harmoniously working
to maintain good government, peace, and order, to the end that the rights of each citizen
be equally protected. No one department can claim that it has a monopoly of these benign
purposes of the government. Each department has an exclusive field within which it can
perform its part within certain discretionary limits. No other department can claim a right
to enter these discretionary limits and assume to act there. No presumption of an abuse of
these discretionary powers by one department will be considered or entertained by
another. Such conduct on the part of one department, instead of tending to conserve the
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government and the rights of the people, would directly tend to destroy the confidence of
the people in the government and to undermine the very foundations of the government
itself, and lead to disaster, confusion, and uncertainty. (Barcelon vs. Baker and Thompson,
5 Phil., 87.)
No well-organized government of business even, can be well managed if one department
can enter upon the field of another attempt to administer or interfere with the
administration of the other. Suppose, for example, the chief of one department of the
government, whose duties are well defined and whose field or operation is well delimited,
should attempt to enter upon the field of another coordinate and equal department and to
interfere with the administration of that department and to direct its affairs, disorder and
confusion would immediately arise. This illustration of the interference of one department
with another in any branch of the government fully demonstrates what would result from
an interference by one of the great departments of the government with the
administration of another.
Of course, nothing which has been said here can be construed to mean that the Governor-
General might not, if the circumstances justified it, exhibit and deliver to the petitioners
the vouchers in question if in his judgment he thought it was wise to do for the best
interest and highest welfare of the people of the Philippine Islands. Whether such
inspection and examination should be granted, lies within the absolute discretion of the
Governor-General. If he should deem it important and advisable to exhibit the vouchers in
question to the petitioners or to the public in order that the taxpayers might know in what
manner their contributions to the government are expended, that is a question for him to
decide. It is purely a political question, and lies within the breast of the Governor-General.
The responsibility to decide that question rests with him and his conscience to act as he
deems wise in accordance with the best interest and the highest welfare of the people.
It was argued at the hearing of the present case that the Philippine Government was a
government of laws and not of men, and that no individual or officer within the state was
above the law, and to deny the petitioners the right which they claim would be to
recognize the doctrine that some officials of the government are not governed by the law.
It was urged by the petitioners that in the government of laws there must be an adequate
remedy for every wrong and that where a clear right exists, there must be some mode of
enforcing that right. As a legal proposition, that contention has much weight. But, as was
said in the case of People ex rel. vs. Bissell (19 Ill., 229): "While human society is
governed by so imperfect a being as man, this can be true only in theory. If we are to
compel the governor or the legislature to right every wrong which may arise from their
omissions of duty, then surely they (the executive and legislative departments) must, in
order to make this Utopian system perfect, have the power to compel us (the courts) to do
right in every case. May it not be as well supposed that we (the courts) will act perversely,
and refuse to perform a duty imposed upon us, to the injury of the citizen, as that the
governor will do so? In the formation of the government, equal confidence was rightfully
reposed in each department, to which appropriate and independent duties were assigned."
In the performance of those independent duties assigned to each department of the
government, a discretion was given. Such duties were assigned to the respective
departments upon the theory that by reason of the machinery of government furnished to
each department, they could be better and more efficiently performed by the particular
department to which they had been assigned. Under the theory of the three distinct and
independent departments of the government, it was not intended that one should
encroach upon the field of duty of the other. It was not intended by the framers of the
theory of our government that the duties which had been assigned to the executive should
be performed by the legislative, nor that the duties which had been assigned to each of
them should be performed and directed by the judicial department. The reason why the
courts will not entertain jurisdiction to control or direct the action of the executive or
legislative departments of the government, is not that either of said departments or the
officers thereof are above the law, but because the people, the organization of their
government, deemed it wise to impose such duties upon those departments. If the courts
should take jurisdiction for the purpose of controlling the acts of the executive and
legislative departments of the government, then the courts might become the ruling and
directing power of the government and deprive those departments of their legal functions,
contrary to the very fundamental idea of a republican form of government.
The court exercise no functions of sovereignty. The courts cannot even execute their
judgment except by contempt proceedings. When a judgment is rendered and becomes
final, its execution depends upon the executive department of the government. The courts
can only pronounce what the law is, and what the rights of the parties thereunder are.
When the courts pronounce an act of the executive or legislative department of the
government illegal and contrary to the fundamental laws of the land, it is because the act
of the executive department of the government or the law adopted by the legislative
department of the government, falls within some of the inhibitions of the fundamental law
of the state. The wisdom or advisability of a particular statute, is not a question for the
courts to determine. If a particular act or statute of the other departments of the
government is within the constitutional power of said departments, it should be sustained
by the courts whether they agree or not in the wisdom of the act or the enactment. If the
act of the executive department or the enactment of the legislative department of the
government covers subjects not authorized by the fundamental laws of the land, or by the
constitution, then the courts are not only authorized to take jurisdiction to consider the
same, but are justified in pronouncing the same illegal and void, no matter how wise and
beneficient they may be. Courts are not justified in measuring their opinions with the
opinions of the other departments of the government as expressed in their acts, upon
questions of the wisdom, justice, and advisability of a particular act. In exercising the high
authority conferred upon the courts to pronounce valid or invalid a particular act of the
other departments of the government, they are only the administrators of the public will
as expressed in the fundamental law of the land — the law of the people. If an act of
either of the other departments is to be held illegal, it is not because the judges or the
courts have any control over them, but because the act is forbidden by the fundamental
law of the land and because the will of the people, as declared in their law — the
fundamental law of the land — is paramount and must be obeyed even by the other
departments of the government. In pronouncing an act of the other departments of the
government illegal, the courts are simply interpreting the meaning, force, and application
of the fundamental law of the state.
Another potent reason why the judicial department will not take jurisdiction of a case for
the purpose of directing and controlling the action of the executive department of the
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government, is, first, that it is without the machinery or the power to enforce its
processes. The Governor-General of the Philippine Islands, as the Chief Executive of the
Government, is possessed with the only machinery by which and through which the orders
of the court and the laws of the country are enforced. The courts are without power to
enforce their orders except in contempt proceedings, and then only with the assistance of
the officers of the executive department.
Second. What has been said with reference to the issuance of a writ of mandamus against
the Governor-General, as the head of the executive department of the Government, is
equally applicable to the legislative department of the Government and its officers when
the duty is one pertaining to that particular department of the Government. It may be
asserted as a principle founded upon the clearest legal reasoning that the legislature or
legislative officers, in so far as concerns their purely legislative functions, are beyond the
control of the courts by the writ of mandamus. The legislative department, being a
coordinate and independent branch of the government, its action within its own sphere
cannot be revised or controlled by mandamus by the judicial department, without a gross
usurpation of power upon the part of the latter. When the legislative department of the
government imposes upon its officers the performance of certain duties which are not
prohibited by the organic law of the land, the performance, the non-performance, or the
manner of the performance is under the direct control of the legislature, and such officers
are not subject to the direction of the courts. (High on Extraordinary Legal Remedies [3d
edition], 150-152, and cases cited; Turnbull vs. Giddings, 95 Mich., 314; Sinking Fund
Cases, 99 U.S., 700; 25 L. ed., 504; Ex Parte Echols, 39 Ala., 698.)
In the case of Ex Parte Echols the Speaker of the House of Representatives decided that a
bill had not passed by a vote of two-thirds in that branch of the legislature, and an appeal
was taken from his decision to the house and his decision was sustained. A member of the
House of Representatives presented a petition for the writ of mandamus in the Supreme
Court to require the Speaker of the House of Representatives to send said bill to the
Senate of the State upon the theory that it had passed by a majority vote of the House of
Representatives. In passing upon that question, the Supreme Court of Alabama said: "This
court will not interfere with either of the other coordinate departments of the government,
in the legitimate exercise of their jurisdiction and powers, except to enforce mere
ministerial acts required by law to be performed by some officer thereof; and not then, if
the law leaves it discretionary with the officer or department. To this extent, and no
farther, do the decisions of this court go, upon this branch of the subject."
Each department of the government should be careful not to trench upon the
powers of the others; and this court should be the more so, as its decisions are to
be taken as the measure, in the last legal resort, of the powers which pertain to
each department thereof; and while it will uphold its own jurisdiction and powers,
it will be careful not to invade or usurp any that appropriately belongs to either of
the other coordinate branches of the government. (Miles vs. Bradford, 85 Am.
Dec., 643; State ex rel., Davisson vs. Bolte, 151 Mo., 362; Greenwood Cemetery
Land Co. vs. Routt, 17 Colo., 156; 31 Am. St. Rep., 284.)
The petitioners in the present case, together with others, constitute a committee
(commission) duly appointed by the Legislature of certain definite and defined purposes,
under Concurrent Resolution No. 20, of November 7, 1918. The respondents Manuel L.
Quezon, Manuel Roxas, Teodoro M. Kalaw, and Fernando Mariano Guerrero are officers of
that committee (commission). While it has been decided in many cases that the courts will
not interfere with the legislative department of the government in the performance of its
duties, does that rule apply to the committees duly appointed by the legislative
department of the government and its officers? The powers and duties conferred upon said
committee by the Legislature, granting the legality of the object and purpose of said
committee, and granting that the Legislature itself had the power to do and to perform the
duties imposed upon said committee, then an interference by the courts with the
performance of those duties by it would be tantamount to interfering with the workings
and operations of the legislative branch of the government itself. An interference by the
judicial department of the government with the workings and operations of the committee
of the legislative department would be tantamount to an interference with the workings
and operations of the legislative department itself. And, again, we are called upon to say,
that one branch of the government cannot encroach upon the domain of another without
danger. The safety of our institutions depends in no small degree on a strict observance of
this salutary rule. (Sinking Fund Cases, 99 U.S., 700, 718; Clough vs. Curtis, 134 U.S.,
361, 371; Wise vs. Bigger, 79 Va., 269.)
The committee (commission) composed of the petitioners and others, of which the
respondents Quezon, Roxas, Kalaw, and Guerrero are officers, is responsible to the
Legislature itself in the performance of the duties conferred upon it. The Legislature may
call upon it and demand from time to time reports of its work and its expenditures. It is
alleged that all the members of the committee, except its secretaries, are members of the
Legislature. The petitioners therefore have a remedy through the regular machinery of the
Legislature for obtaining the information which they are now seeking. If any irregularity or
illegality appears in the performance of the duties of either the Legislature or its
committees, their responsibility is to the people and not to the courts. An appeal in case of
illegality and irregularity on the part of the Legislature, as a body, or of its individual
members, may be had to the people who commissioned them through the ballot and
whose personal representatives they are.
Each department of the government should be sovereign and supreme in the performance
of its duties within its own sphere, and should be left without interference in the full and
free exercise of all such powers, rights, and duties which rightfully belong to it. Each
department should be left to interprete and apply, within the constitutional powers
conferred upon it, without interference, what may be termed its political duties. For one
department to assume to interpret, or to apply, or to attempt to indicate how such political
duties should be performed, would be an unwarranted, gross, and palpable violation of the
duties which were intended by the creation of the separate and distinct departments of the
government. (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil., 534, 574;
Barcelon vs.Baker and Thompson, 5 Phil., 87.)
The executive and legislative departments of the government are frequently called upon to
deal with what are known as political questions, with which the judicial department of the
government has no intervention. In all such questions, in the first instance the courts have
uniformally refused to intervene for the purpose of directing or controlling the actions of
the other departments. Such questions are many times reserved to those departments in
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the organic law of the state. (22 Harvard Law Review, 132; Parker vs. State, ex rel.,
Powell, 133 Ind., 178; 18 L.R.A., 569; Farrell vs. United States, 110 Fed. Rep., 942;
Kelley vs. State, 25 Ark., 392; U.S. vs. Holliday, 3 Wallace [U.S.], 407; Message of
President Polk to the Congress of the United States, Apr. 20, 1846.)
And, in addition to all of the foregoing, the petitioners, as members of the Legislature,
may, through the Legislature itself, require the Independence Commission to make a full
and complete report of all of its operations, including an itemized statement of its
expenditures and thereby obtain the very information which they are now seeking through
the judicial department of the government.
Third. With reference to the jurisdiction of the court to compel the Acting Insular Auditor,
Mr. Dizon, to comply with the prayer of the petition, it may be said that the Auditor of the
Philippine Islands, under the law, has (a) exclusive jurisdiction over government accounts
and records pertaining thereto, and (b) power and authority to audit, in accordance with
law and administrative regulations, all expenditures of funds or property pertaining to, or
held in trust by the Government or the provinces or municipalities, and to preserve the
vouchers pertaining thereto. The Jones Law further provides that the decisions of the
Auditor shall be final and conclusive upon the executive branches of the government,
except that appeal therefrom may be taken by the party aggrieved or the head of the
department concerned, within one year, to the Governor-General, which appeal shall
specifically set forth the particular action of the Auditor from which the exception is taken,
with the reasons and authorities relied upon for reserving such decision. The law further
provides that, in case of a disagreement between the Governor-General and the Auditor, a
further appeal is permitted to the Secretary of War, whose decision upon the question
presented shall be final and conclusive. (Act of Congress, August 29, 1916, sections 24
and 25, vol. 12, Public Laws, pp. 247-249.)
Under said provisions of the Jones Law, the decision of the Auditor is final and unless an
appeal is taken within the time prescribed. The decision of the Auditor is final unless it is
reversed or modified in the manner provided by law, and the courts are therefore without
jurisdiction to intervene or to modify his decision in the premises. The administrative
jurisdiction of the Auditor over accounts, whether of funds or property, and all vouchers
and records pertaining thereto, shall be exclusive. The jurisdiction of the Auditor in
auditing and settling accounts is exclusive, whether of funds or property, and all vouchers
and records pertaining thereto, and his decision or his accounting of such revenues and
receipts and expenditures is final and conclusive, unless an appeal is taken therefrom
within the period of one year. The Auditor being possessed with exclusive and final
jurisdiction, except on an appeal, to audit all accounts of expenditures of public funds of
the Philippine Government, it would seem to be a reasonable conclusion to hold that he
has, at least, certain discretionary powers in arriving at an uncontrolled and independent
conclusion. The legislative department of the government of the United States in the
Philippine Islands would not have made the decisions of the Auditor final, unless an appeal
is taken therefrom, without intending to give him an uncontrollable discretion with
reference thereto. (Lamb vs. Phipps, 22 Phil., 456; State vs. Babcock, 22 Neb., 38.)
Without a further discussion of the questions presented, we are of the opinion, and so
decide, that we are without authority or jurisdiction to grant the remedy prayed for; and
the petition is therefore hereby denied, without any finding as to costs. So ordered.
G.R. No. L-6250 August 3, 1910
LOPE SEVERINO, petitioner,
vs.
THE GOVERNOR-GENERAL OF THE PHILIPPINE ISLANDS and THE PROVINCIAL
BOARD OF OCCIDENTAL NEGROS, respondents.
TRENT, J.:
This is an original application made in this court, praying for a writ of mandamus to the
Governor-General of the Philippine Islands, one of the respondents, to compel him to call a
special election for the purpose of electing a municipal president in the town of Silay,
Province of Occidental Negros, and praying also that a preliminary injunction be issued
restraining the respondents, the Governor-General of the Philippine Islands and the
provincial board of the Province of Occidental Negros, from appointing a municipal
president for the said municipality during the pendency of this proceeding.
From the petition the following facts appear:
1. That the petitioner is a resident, a duly qualified elector, and local chief of
the Nacionalista party in the town of Silay, Province of Occidental Negros;
2. That on the 2nd day of November, 1909, there was held in the said municipality a
general election for the purpose of electing municipal officials, Emilio Gaston being
the Nacionalista candidate for the office of municipal president and Domingo Hernaez
being the Progresista candidate for the same office. According to the returns, Domingo
Hernaez was elected municipal president. Emilio Gaston, under the provisions of section
27 of Act No. 1582 (Election Law), filed a protest in the Court of First Instance thereupon
proceeded with the trial of the cause, and at the termination of the same, rendered, on
the 14th day of December, 1909, its judgment declaring that no one was legally elected
municipal president of the said town of Silay, and this decision was duly certified to the
Governor-General, as provided in
3. That the Governor-General, instead of calling a special election as required by law to
elect a municipal president for said town, has directed by the provincial board of said
province to fill his vacancy by appointment, submitting to him, for his approval, the name
of the person to be appointed.
This case is now before us on a demurrer to the petition, and on the petition for a
preliminary injunction during the pendency of this proceeding. It is urged by the Attorney-
General, who appears a counsel for the respondents, that:
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1. The complainant has no such performed or restrained as to act which he seeks to have
performed or restrained as to make him a proper party to these proceedings and entire
him to maintain the same;
2. That this court has no jurisdiction to control by mandamus or injunction the official acts
of the Governor-General, the head of the executive department of the Philippine
Government; and,
3. That the official act which the complainant seeks to have performed, and also the
official act which he seeks to have restrained, are acts which are left to the discretion of
the Governor-General, and as such are not subject to the control of the court.
The complainant, Lope Severino, is a private individual of the Philippine Islands. The only
allegation in the petition which tends to show (aside from the fact that he is a duly
qualified elector and citizen of the Philippine Islands) that he is a proper party to these
proceedings is that he is the local chief of the Nacionalista party in the town of Silay. He
has no authority by statute, or otherwise, to represent the public. The only provision in the
Election Law which refers in any manner to political parties is found in section 15. This
section deals exclusively with the appointment of election inspectors and provides that,
should there be in any municipality one or more political parties, or branches thereof,
which shall have polled 30 per cent, or over, of the votes cast at the preceding general
election, then two inspectors shall belong to the party which polled the largest number of
votes, and the other shall belong to the party which polled the next largest number. The
complainant does not allege that the party which he represents polled 30 per cent or over,
of the votes cast for municipal president, or any other office, at the preceding general
election.
Should the Governor-General appoint a president of the municipality of Silay and fail to
call a special election, if any injury should result it would be of a public nature and the
complainant would suffer no substantial injury different from that suffered by the public at
large. So his status as complainant in these proceedings is that of a private citizen of the
town of Silay. Therefore, we shall inquire into the question as to whether or not, admitting
that the writs might issue, Lope Severino is a proper complainant. This question has been
before the courts of the United States frequently and the decisions upon the same are not
uniform. Some of the courts hold that an individual citizen is not entitled to institute
proceedings in mandamus against public officers to compel the performance of a public
duty, unless such citizen shows some specific or peculiar interest in himself different from
that shared by the public at large, and in such cases the relief should be sought in the
name of the public and by its legal representative.
In the case of Mitchell vs. Boardman (79 Me., 469), the court held that —
A writ of mandamus will be granted to a private individual only in those cases
where he has some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he holds in common
with the public at large. It id for the public officers exclusively to apply for the writ
when publics rights are to be subserved.
This same rule has been announced and followed in the case of Sanger vs. Kennebec
Country Com'rs. (25 Me., 291); Bobbet vs. State (10 Kan., 9); Commonwealth vs. Park (9
Phila., 4891); Linden vs. Alamda County Sup'rs. (45 Cal., 6); People vs. State Prison (4
Mich., 187); and O'Brien vs. Members of the Board of Aldermen of Pawtucket (18 R. I.,
113). Other decisions might be cited in support of this doctrine.
On the other hand, High, in his work on Extraordinary Legal Remedies, third edition,
section 431, says:
As regards to the degree of interest on the part of the relator requisite to make
him a proper party on whose information the proceedings may be instituted, a
distinction is taken between cases where the extraordinary aid of a mandamus is
invoked merely for the purpose of enforcing or protecting a private right,
unconnected with the public interest, and cases where the purpose of the
application is the enforcement of a purely public right where the people at large
are the real party in interest. And while the authorities are somewhat conflicting,
yet the decided weight of authority supports the proposition that, when the relief
is sought merely for the protection of private rights, the relator must show some
personal or special interest in the subject-matter, since he is regarded as the real
party in interest and his right must clearly appear. Upon the other hand, when the
question is one of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real property in
interest, and the relator at whose instigation the proceedings are instituted need
not show that he has any legal or special interest in the result, it being sufficient
to show that he is a citizen and as such interested in the execution of the laws.
(Citing numerous cases.)
In the case of Hamilton, Auditor of Marion County, vs. State, on relation of Bates (3 Ind.,
451), the court, after stating the facts, said (p. 458):
Were this a case merely for private relief, the relator would have to show some special
interest in the subject-matter. But here the case is different. The defendant, who was
bounty auditor, refused to issue the legal duplicate for the collection of the taxes and
a mandamus was applied for to compel him to discharge this duty of his office. It is a case
for the enforcement, not of a private, but of a public right; and it is not necessary, in such
cases, that the relator should have a special interest in the matter, or that he should be a
public officer. That the defendant should discharge, correctly, the duties of his office, was
a matter in which Bates, as a citizen of the county, had a general interest; and that
interest was, of itself, sufficient to enable him to obtain the mandamus in question.
In the case of the State of Ohio, ex rel. Trauger, vs. Nash, Governor (66 Ohio St., 612),
the complainant alleged that he was an elector, citizen, taxpayer, and the owner in fee
simple of real estate in the city of Columbus, State of Ohio; that the defendant, Nash, was
the duly elected, qualified, and acting governor of the State; that on May 2, 1902, the
duly elected and qualified lieutenant-governor resigned, thereby creating a vacancy in the
office of the lieutenant-governor; and that it was the duty of the defendant, as governor,
under the provisions of sections 11 and 81 of the revised statutes of the State, to appoint
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an elector of the State of Ohio to fill the vacancy in the office of lieutenant-governor. The
court in passing upon the question as to whether or not the complainant, Trauger, was the
property party to institute these proceedings, said (p. 615): "It may be conceded that a
majority of the courts which have pronounced opinions on the subject have held that a
private relator applying for a mandamus must show a special interest in himself; but even
in some of those jurisdictions it has been said that 'the rule which rejects the intervention
of the private complainants against public grievances is one of discretion and not of law,'"
citing Ayres vs. Board of State Auditors (42 Mich., 422); Railroad Co. vs. Hall et al. (91 U.
S., 343); Railroad Co. vs. Suffern et al (129 Ill., 274); State, ex rel. Currie, et al., vs.
Weld County Aiditor (39 Minn., 426); State vs. Brown (38 Ohio St., 344) and the State, ex
rel., vs. Tanzey et al. (49 Ohio St., 656).
In the case of Ayres vs. Board of State Auditors, supra, the court said (pp. 429, 430):
In the present case the officer whose duty it usually is to enforce the rights of the
State, in this court, has, in the performance of his official functions as adviser of
the State officers, placed himself in an adverse position, and appears for the
respondents on this application. Inasmuch, then, as the attorney-general refuses
to appear and seek the enforcement of the statutory provision, does his refusal
preclude its enforcement? And if not, is the relator authorized to bring the matter
before this court?
There may perhaps be others who have interests that would justify their appearance, but
there is no one else whose duty it is to appear where the attorney-general declines to do
so.
There are various serious objections against allowing mere interlopers to meddle
with the affairs of the State, and it is not usually allowed unless under
circumstances where the public injury by its refusal will be serious. . . . But we
find no reason to consider the matter as one lying outside of judicial discretion,
which is always involved in mandamus cases concerning the relief as well as other
questions.
In the case of Railroad Co. vs. Hall et al., supra, the Supreme Court of the United States
said:
There is, we think, a decided preponderance of American authority in favor of the
doctrine that private persons may move for a mandamus to enforce a public duty,
not due to the Government a such, without the intervention of the Government
law officer.
Paragraph 2 of section 164 of the Code of Civil Procedure in force in the Philippine Islands
provides that a preliminary injunction may be granted when it is established, to the
satisfaction of the judge, "that the commission or continuance of some act complained of
during the litigation would probably work injustice to the plaintiff.
Section 222 of the same code provides that when the complaint in an action in a Court of
First Instance alleges that any inferior tribunal, corporation, board, or person unlawfully
neglects the performance of a act which the law especially enjoins as a duty resulting from
an office, trust, or station, or unlawfully excludes the plaintiff from the use and enjoyment
of a right or office to which he is entitled, . . . and the complaint to be true, it may, if
there is no other plain, speedy, and adequate remedy in the ordinary courts if law, render
a judgment granting a peremptory order against the defendant to do the act required to
be done to protect the rights of the plaintiff.
Section 515 provides that the Supreme Court shall have concurrent jurisdiction with the
Courts of First Instance in all cases where an inferior tribunal, corporation, board, or
person unlawfully excludes the plaintiff from the use and enjoyment of a right or office to
which he is entitled, and from which he is unlawfully excluded by such inferior tribunal,
corporation, board, or person.
Under these provisions the relator, in order to obtain an injunction, must show that he is
entitled to the relief demanded and that the continuance of the acts complained of or
threatened to be done would probably work na injustice to the plaintiff. Also in order to
obtain a mandamus he must allege and show that the respondents are excluding him from
a right or office to which he is entitled, and that the respondents are unlawfully neglecting
the performance of an act or acts which the law especially enjoins as a duty resulting from
their office, trust, or station.
The relator in the case at bar alleges that he has a right conferred upon him by statute to
participate in the selection of the president of the town of Silay; that the respondents are
attempting to deprive him of this right by appointing a president and refusing to call a
special election. It is true, as we have stated, that the right which he seeks to enforce is
not greater or different from that of any other qualified elector in the municipality if Silay.
It is also true that the injury which he would suffer in case he fails to obtain the relief
sought would not be greater or different from that of the other electors; but he is seeking
to enforce a public right as distinguished from a private right. The real party in interest is
the public, or the qualified electors of the town of Silay. Each elector has the same right
and would suffer the same injury, Each elector stands on the same basis with reference to
maintaining a petition to determine whether or not the relief sought by the relator should
be granted.
It is urged by counsel for the respondents that should this court hold that the relator has a
sufficient right to maintain this proceeding and should grant or deny the writs prayed for,
such holding would not preclude any other qualified elector of Silay from instituting
another proceeding of this same character and seeking the same relief, resulting in a
multiplicity of suits and a continual annoyance to the respondents. While this may possibly
be true (a question which do not now decide), nevertheless the question as to whether or
not innumerable petitions of this character would follow is a practical one and not one of
law. We are not called upon to decide practical questions of this nature, but we might add
that as far as the practical questions of this nature, holding is concerned it would preclude
the filing of other petitions by other electors inasmuch as should this court hold that these
writs will not lie to the Governor-General, and the rights of the other parties being the
same as that of the petitioner herein, it would be seen that it would be useless to institute
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other proceedings of the same character. On the other hand, should this court hold that
the writs will lie, then it would not necessary for any other elector or electors to move in
the matter. Should they do so this court in the use of its discretionary power could deny
such petitions without a hearing.
We have examined the cases wherein the courts of the United States have held that
private individuals are not proper parties in cases where a public right is to be enforced,
unless such private persons have some particular interest to be subserved or some
particular right to be protected independent of that which they hold in common with the
public at large. In these cases the courts hold that it is for the public officers exclusively to
apply for the relied when such rights are to be subserved. In such cases it is the duty, by
express provision of law, of public officers to enforce such rights.
In this jurisdiction it is the duty of the Attorney-General "to perform the duties imposed
upon him by law," and "he shall prosecute or defend therein all causes, civil and criminal,
to which the Government of the Philippine Islands, or any officer thereof, in his official
capacity, is a party." (Secs. 1365 and 1366 of Compilation.) The duties of the Attorney-
General are expressly provided and he is not called upon to perform any other duties. He
would have no authority to represent any other entities or persons in a case in which
duties are not especially imposed upon by him by statute. It is his duty to represent the
public officer when such public is a party to a suit in his official capacity. The same is true
of the provincial fiscals.
The Attorney-General, in compliance with the duty imposed upon by him by law, appeared
for the respondents in this case. It is not the duty of any law officer of the Government to
appear for the relator, neither could such law officer, in his official capacity, represent the
relator if he desired to do so. No express provision is found making it the duty of any
official of the Government to bring these proceedings. So, if the relator is precluded from
maintaining these proceedings for the purpose of having his rights passed upon by this
court, these questions could not be raised.
Counsel for the respondents urge that this court impliedly laid down the rule in the case
of Abendan vs. Llorente (10 Phil. Rep., 216) that, where the injury complained of is really
a public injury and the right violated is a public right, an individual can not maintain a suit
to enforce such right unless he alleges that he would suffer a special injury and has a
substantial right different from that suffered or held by the public at large. The question
presented in this case is different from that presented in the case at bar. Abendan, the
plaintiff in this case, brought an original action of certiorari in the Supreme Court of the
Philippine Islands for the purpose of having reviewed a judgment entered in the Court of
First Instance of the Province of Cebu. The defendants, one of whom was the judge of that
court having been directed to show cause why the record in the case in which that
judgment was entered should not be remitted to the Supreme Court and examined,
appeared and objected to such an order on the ground that the plaintiff had no right to
have such judgment reviewed. That case arose out of a certain election protest proceeding
had in the Court of First Instance. The plaintiff, Abendan, was not a party to the said
proceedings. Those proceedings were carried on exclusively between Llorente on the one
hand and Vicente Sotto and Timoteo Castro on the other, Llorente protesting the election
of municipal president. if Abendan cast his vote in the said election he exercised all the
rights he had in the premises. The question was between the candidates as to who was
entitled to hold the office of municipal president. This court in passing upon the question
raised in this case said (p. 217): "In our opinion, this fact (referring to the fact that
Abendan was a qualified elector) does not give him any standing in this court to ask for
the review of that judgment. There is nothing in the complaint to show whether or not he
voted at the election in question, or, if he did so vote, whether he voted for Llorente,
Sotto, or Timoteo de Castro. We find nothing in the Election Law (Act No. 1582) which
allows a voter who was not a candidate to take any proceedings in court to contest the
legality of an election."
The court in this case held that a voter who was not a candidate could not take any
proceeding into court to contest the legality of an election. No other question was before
the court and it did not decide any other question. The question before the court in the
case at bar is not one affecting the legality of an election. We now have nothing to do with
any election, so far as its legality is concerned.
In the case at bar the question between the candidates was settled in the Court of First
Instance and their rights as such candidates disappeared on the final determination of the
case in said court. The court held that no one was legally elected municipal president and
thereafter the candidates who protested that election had no greater or different right
from that of any other elector, as far as the questions under consideration are concerned.
The relator seeks to have the whole question returned to the municipality for
determination. Any qualified elector could have become a candidate immediately upon the
termination of the protest. The question is no longer just between the two candidates, but
all the electors are now affected alike.
We are therefore of the opinion that the weight of authority supports the proposition that
the relator is a proper party to proceedings of this character when a public right is sought
to be enforced. If the general rule in America were other wise, we think that it would not
be applicable to the case at bar for the reason "that it is always dangerous to apply a
general rule to a particular case without keeping in mind the reason for the rule, because,
if under the particular circumstances the reason for the rule does not exist, the rule itself
is not applicable and reliance upon the rule may well laid to error."
No reason exists in the case at bar for applying the general rule insisted upon by counsel
for the respondent. The circumstances which surround this case are different from those in
the United States, inasmuch as if the relator is not a proper party to these proceedings no
other persons could be, as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of this character.
We are, therefore, of the opinion that the relator is a proper party to these proceedings
and has right as such to have the question determined as to whether or not the writs
should issue.
We will now proceed to determine whether or not the court has jurisdiction to control
by mandamus or injunction the official acts of the Governor-General. If the Governor-
General. can not be compelled by a mandamus to call this special election it follows that
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he can not be restrained by injunction from appointing a person to fill the position of
municipal president, for the nature of the act to be performed by him is precisely the same
in one case as in the other, and the same considerations operate to sustain or defeat the
jurisdiction of the court in both instances.
It is admitted and universally recognized that mandamus and injunction will never lie to
enforce or restrain a duty which is discretionary. This proposition is elemental and it is
unnecessary to cite authorities in support or the same. We believe that it is well settled in
the United States that the courts will never assume jurisdiction over the official acts of the
President. This question was first raised and so impliedly decided in 1803 in the case
of Marbury vs. Madison (1 Cranch, 152), and was directly decided in the case of the State
of Mississippi vs. Johnson (4 Wall., 475). In this latter case a motion was filed on behalf of
the State of Mississippi for leave to file a bill in the name of the State praying the Supreme
Court to perpetually enjoin and restrain Andrew Johnson, President of the United States,
from executing, or in any manner carrying out, the Reconstruction Act. The court in
passing upon this question as to whether or not in any case the President of the United
States could be compelled to perform a purely ministerial act under a positive law. said:
The Congress is the legislative department of the Government; the President is the
executive department. Neither can be restrained in its action by the judicial
department; though the acts of both, when performed, are, in proper cases,
subject to its cognizance.
The impropriety of such interference will be clearly seen upon consideration of its
possible consequences.
Suppose the bill filed and the injunction prayed for allowed. If the President refuse
obedience, it is needless to observe that the court is without power to enforce its
process. If, on the other hand, the President complies with the order of the court
and refuses to execute the acts of Congress, is not clear that a collision may occur
between the executive and legislative departments of the Government? Many not
the House of Representatives the President for such any refusal? And in that case
this court interfere, in behalf of the President, thus endangered by compliance with
its mandate, and restrain by injunction the Senate of the United States from
sitting as a court of impeachment? Would the strange spectacle be offered to the
public world of an attempt by this court to arrest proceedings in that court?
These questions answer themselves. . . . We are fully satisfied that this court has
jurisdiction of a bill to enjoin the President in the performance of his official duties;
and that no such bill ought to be received by us. . . . The motion for leave to file
the bill is therefore denied.
The differentiation invoked by the courts between the President and governors of States
on one hand and cabinet officials and inferior state officials on the other hand is plainly
indicated in the case of Kendall vs. United States (12 Pet., 522), wherein the court used
the following language:
The executive power is vested in a President; and so far as his powers are derived from
the Constitution, he is beyond the reach of any other department, except in the mode
prescribed by the Constitution, through the impeaching power. But it by no means follows
that every officer in every branch of that department is under the exclusive direction of
the President. Such a principle, we apprehend, is not, and certainly can not be claimed by
the President. There are certain political duties imposed many officers in the executive
department, the discharge of which is under the direction of the President. But it would be
an alarming doctrine, that Congress can not impose upon any executive officer any duty
they may think proper, which is not repugnant to any rights secured and protected, by the
Constitution; and in such cases, the duty and responsibility grow out of and are subject to
the control of the law, and not to the direction of the President. And this is emphatically
the case, where the duty enjoined is of a mere ministerial character.
The questions whether governors of States in the Union are amenable to the orders of the
courts in the performance of their ministerial duties has been answered in two
irreconcilable lines of decisions. In one line of decisions it is held that the writ
of mandamus will not lie to the governor of a State to compel the performance of any
official duty, he being entirely removed from the control of the courts without regard to
the question as to the nature of such duties, whether strictly executive or political,
inherent in the office of the governor, or purely ministerial. On the pendence of the
governors from judicial control in the performance of purely executive and political
functions, have held, as to ministerial duties incumbent by law upon them, and which
legislature might with equal propriety require any other official to perform, wherein the
special private right of a citizen is involved, that the writ of mandamus will lie to compel
the performance of such duty.
In the case at bar at counsel for the relator insists that the acts sought to be performed by
the Governor-General are purely ministerial, conferred upon by him by express statute
and which could have been with equal propriety conferred upon other officials of the
Philippine Government. Conceding, without deciding, the correctness of this proposition,
we will proceed to the decision of the main question, for the proper determination of which
it is necessary to notice some of the steps by which the constituted Government in the
Philippine Islands was established.
The United States acquired the Philippine Islands by cession under the treaty of peace
executed at Paris on December 10, 1898, between the United States and Spain, the final
ratifications being changed on April 11, 1899. The Philippine Islands after American
occupation were of the Philippine Commission. This military government was established
by the President of the United States under his war power, exercising executive,
legislative, and judicial authority, all of which he might have exercised personally or
through such military or civil agents as he chose to select. The President continued to
exercise his war power, as Commander in Chief of the military forces, up until March 2,
1901, the date of the approval by the President of the Spooner Amendment.
Notwithstanding that the Philippine Commission had been created prior to this time with
certain legislative and executive powers, the government established continued to be a
military government. The Spooner Amendment did not change the form of the government
which had been established by the President under his war power, but it did make a
fundamental change in respect to the legal authority exercised by the President in this
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country. Thereafter, in the administration of civil affairs in this country, he acted in his civil
capacity as President of the United States and not as Commander in Chief of the Army.
From this time, legally speaking, dates the commencement of civil government. Exercising
this civil authority as President of the United States, conferred upon him by the Spooner
Amendment, the President proceeded to create the office of Civil Governor, which he did in
June, 1901, to take effect on July 4 of the same year, on which date the Civil Governor
was inaugurated. By virtue of the same power the President proceeded with the further
organization of civil government by creating (September 1, 1901) four executive
departments and the office of Vice-Governor (October 29, 1901), and by virtue of the
authority conferred upon him by the said Spooner Amendment he continued the
administration of civil affairs until the Congress of the United States assume charge July 1,
1902. In the meantime in the office of Military Governor was abolished and the Civil
Governor became the Executive. The instructions of the President of the United States to
the Philippine Commission, dated April 7, 1900, and the Act of Congress approved July 1,
1902, now constitute the Organics Acts, by virtue of which the Civil Government was
established.
The President of the United States, in the creation of civil government and the
administration of civil affairs, exercised the combined powers of the Federal and State
government. The legislative power which was delegated by the President to the Philippine
Commission and which was later ratified by the Congress of the United States was more
comprehensive than the legislative powers now possessed by State governments.
In the Organic Act (Instructions of the President to the Philippine Commission) there were
extended to the Philippine Islands and made the very foundation of our governmental
system the great principles which are not found in the Constitution of the United States
and the constitutions of the different States. These great principles of government, as
President McKinley said in his instructions, "have been made the basis of our
governmental system, which we deem essential to the rule of law and the maintenance of
individual freedom, . . .; that there are also certain practical rules of government of these
great principles of liberty and law, and that these principles and these rules of government
must be established and maintained in their Islands for the sake of their liberty and
happiness, . . . . Upon every division and branch of the Government of the Philippine,
therefore, must be imposed these inviolable rules;
That no persons shall be deprived of life, liberty or property without due process of
law; that private property shall not be taken for public use without just
compensation; that in all criminal prosecutions the accused shall enjoy the right to
a speedy and public trial, . . . .
These fundamental principles were approved and ratified by the Congress of the United
States and are now, and have the law of the land, and upon them has been reared our
present Civil Government in these Islands. In order to make these principles effective and
considering that the American Union has always believed them essential to a republican
form of government, the Philippine Commission Proceeded to organize one of the great
coordinate branches of the government, the judicial department, providing in section 2 of
the Philippine Islands shall be vested in a Supreme Court, Courts of First Instance, and the
courts of justices of the peace, and other special tribunals as now are or hereafter may be
authorized by law." This provision was likewise affirmed and ratified by Congress.
It having become necessary in the judgment of the President of the United States, he
created, as we have seen, the office of the Civil Governor (Governor-General) and vested
in the Government of the Philippine Islands which had theretofore been exercised by the
Military Governor. This order of the President was also ratified and affirmed by Congress.
All the legislative power, which was exercised by it until the convening of the Assembly,
and that legislative power is now exercised by the Philippine Legislature in all that part of
the Philippine Islands not inhabited by Moros or other non-Christian tribes, the
Commission still retaining its legislative power over the Moro Province and the territory
inhabited by non-Christian tribes.
This government modeled after the Federal and State governmental organization, with
executive, legislative, and judicial departments, which are exercising function as
independent of each other as the Federal State governments.
Counsel for the realtor urges that the executive and legislative departments are not
departments are not independent of each other, basing this contention upon the fact that
the Governor-General is not only the Executive of the Philippine Islands but a member and
presiding officer of the Upper House of the Philippine Legislature. It is true that the
Governor-General is a member of the Upper House and presides over its deliberations, but
he does not possess the veto power which is possessed by the President of the United
States and every State governor. This veto power gives the Chief Executive of the United
States and the Chief Executive of different States greater control over the legislation than
is possessed by the Governor-General of the Philippine Islands. The Governor-General has
only one vote in the Philippine Legislature, while the chief executives of the Federal and
State governments, exercising their veto power, can prevent enactments from becoming
laws when passed by a majority of the legislative body, unless the consent of two-thirds of
the members of the legislature body is obtained and the law passed over the executive's
veto.
While the duties imposed upon the Governor-General of the Philippine Islands are not as
great as those imposed upon the President of the United States, we think he holds a more
responsible position than those held by the State governors. As a general rule the powers
and duties of State governors are specifically set forth in the State constitutions and
enactments. The powers and duties of the Governor-General of the Philippine Islands are
not specifically stated in the Organic Acts. The Governor-General, who we think can
properly be called the Executive of the Philippine Islands, is not elected by the people, but
appointed by the President of the United States Senate, and he is directly responsible to
the President for his official acts. No provisions are made or provided in this country for
the impeachment of the Governor-General as is provided in Federal and State
governments. Nevertheless, he is responsible directly to the President and indirectly to the
people of the United States and of the Philippine Islands for his official acts and conduct.
His recall is not so difficult to obtain as impeachment of the President of the United States
or a State governor. The Governor-General is in a way responsible for, and has direct
supervision over, the provincial and municipal executive officers, although a part of them
are elected by the people. The election of provincial officials must be approved and
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confirmed by him, and he, with the advice and consent of the Philippine Commission, may
remove for just any cause of these elective provincial officials. He has the power to, and
does, appoint, with the advice and consent of the Philippine Commission, the chiefs of the
Insular bureaus and their assistants, with the exception of those of Auditor and Treasurer,
and may suspend or remove them for a cause. He also, under the same conditions, has
the power, and does appoint, and can remove a great number of other Insular officials. In
exercising his executive authority in the enforcement of the laws he does so through an
unbroken chain of subordinate officials. Governors of States in the Union are not the
"executives," but are only the "chief executives." All State officials associated with the
governor, it may be said as a general rule, are, both in law and in fact, his colleagues, not
his agents nor even his subordinates (except in formal rank and precedence). They, like
himself (with the exception of a few States wherein the governors have the power to
appoint some State officials), are elected by the people. He is in no way concerned in their
choice. They are not given him as advisers; on the contrary they are coordinated with him.
As a general rule he has no power to suspend or remove them. It is true that in a few of
the States the governors have power to appoint certain high officials, but they can not be
removed for administrative reasons. These are exceptions to the general rule. The duties
of these officials are prescribed by constitutional provisions or by statute, and not by the
governor. The actual execution of a great many of the laws does not lie with the
governors, but with the local officers who are chosen by the people in the towns and
counties and "bond to the central authorities of the State by no real bonds of
responsibility." In most of the States there is significant distinction between the State and
local officials, such as country and city officials over whom the governors have very little,
if any, control; while in this country the Insular and provincial executive official are bound
to the Governor-General by strong bonds of responsibility. So we conclude that the
powers, duties, and responsibilities conferred upon the Governor-General are far more
comprehensive than those conferred upon State governors.
Inasmuch as the three coordinated departments of the Government, the executive,
legislative, and judicial, have been established and are operating, as we have said, as
independently of each other as the same three coordinated branches created under the
constitution of the Federal and State governments are operating in the American Union,
and in view of the fact that there have been conferred upon the Chief Executive of these
Islands more extension powers, duties, and responsibilities than have been conferred upon
the governors of the various States of the Union, we think the reason for the holdings of
the courts of the United States, which have passed upon this question, are worthy of
consideration. We might here add that we have no doubt that the present incumbent of
the office of the Governor-General, a man who is ready and willing at all times to render
obedience to the law, would follow the mandate of this court, but such willingness to be
governed by the order of this court would not itself give us jurisdiction. Nor should he
manifest (which he has not done) his intention to not obey the mandate of this court, this
would not be sufficient reason for us to abstain from requiring him to comply with such
mandate in case we have jurisdiction.
The question as to whether or not the courts have jurisdiction to control the official acts of
the governor has been before a great many courts of the States in the Union. we shall not
attempt to examine all of these cases. Among those which support the proposition that the
courts of the States have no jurisdiction are the following: Hawkins vs. The Governor —
mandamus — (1 Ark., 5700; The State, ex rel., vs. Drew, Governor — mandamus — (17
Fla., 67); Low vs. Towns, Governor — mandamus — (8 Ga., 3600; The People, ex
rel., vs. Yates, Governor — mandamus — (40 Ill., 126); The People, ex rel., vs. Cullom,
Governor — mandamus — (100 Ill., 4720; The State vs. Warmoth, Governor —
mandamus — (22 La. Ann., 1); Dennet, petitioner, vs. The Governor — mandamus — (32
Me., 508); The People vs. The Governor — mandamus — (29 Mich., 320); Rice vs. Austin,
The Governor — mandamus — (19 Minn., 74); Western Rld. Co. vs. De Graff —
mandamus — (27 Minn., 1); Vicksburg Rld. Co. vs. Lowry, Governor — mandamus — (61
Miss., 388); The State vs. Price, Governor — mandamus — (1 Dutcher (N.J.), 331);
Hartranft's Appeal — contempt — (85 Pa. St., 4330; Mauran vs. Smith, Governor —
mandamus — (8 R. I., 1920; Turnpike Co. vs. Brown, Governor — mandamus — (8 baxt.
(Tenn.), 490).
And in the cases which support the proposition that the courts can compel the governor to
perform purely ministerial duties are the following:
Tenn., etc., Rld. Co. vs. More, Governor — mandamus — (36 Ala., 371); Middleton vs.
Low, Governor — mandamus — ( 30 Cal., 506); Harpending vs. Haight, Governor —
mandamus — (39 cal., 189); Wright, Governor, vs. Nelson — mandamus — (6 Ind.,
496); Baker, Governor, vs. Kirk — mandamus — (33 Ind., 517); Gray, Governor, vs. The
State — mandamus — (72 Ind., 567); Magruder vs. Swann, Governor — mandamus —
(25 Md., 173); Groome, Governor, vs. Gwinn — mandamus — (43 Md. 572); Chamberlain
vs. Sibley, Governor — mandamus — (4 Minn., 309); Chumasero vs. Potts, Governor —
mandamus — (2 Mont., 242); Wall vs. Blasdell Governor — mandamus — (4 Nev.,
241); Cotton vs. Ellis, Governor — mandamus — (7 Jones (N. C.) Law, 545); The State vs.
Chase, Governor — mandamus — (Ohio St., 528).
One of the foremost cases supporting the last proposition is that of State, ex
rel. Whiteman et al. vs. Governor (5 Ohio St., 528), decided in 1856. In this case the
court said (p. 534);
That each of these coordinate departments (executive, legislative, and judicial)
has duties to perform in which it is not subject to the controlling or directing
authority of either of the others, must be conceded. But this independence arises
not from grade of the officer performing the duties, but nature of the authority
exercised. Under our system of government, no officer is place above the
restraining authority of the law, which is truly said to be universal in its behests —
"all paying it homage, the least as feeling its care, and the greatest as not exempt
from its power." And it is only where the law has authorized it, that the restraining
power of one of these coordinate departments can be brought to operate as a
check upon one of the others.
While the authority of the governor is supreme in the exercise of his political and
executive functions which depend on the exercise of his own judgment or discretion, the
authority of the judiciary of the State is supreme in the determination of all legal questions
involved in any matter judicially brought before it. Although the State can not be sued,
there is nothing in the nature of a suit against the person engaged in discharge of its
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duties. This is fully sustained by the analogy of the doctrine of the Supreme Court of the
United States, in the case of Marbury vs. Madison (1 Cranch, 170).
The court in this case incorporated into its decision the words of Chief Justice Marshall in
the case of Marbury vs. Madison as follows:
It is not by the office of the person to whom the writ is directed, but the nature of the
thing to be done, that the propriety or impropriety of issuing a mandamus is to be
determined.
These words of the great Chief Justice have frequently been cited by the courts and are
considered as authoritative in support of the last proposition.
In the case of Marbury vs. Madison, supra, a rue was granted requiring the Secretary of
State, Mr. Madison, to show a cause why mandamus should not be issued, directing him to
deliver to William Marbury his commission as justice of the peace for the County of
Washington, in the District of Columbia. No cause having been shown, the case came on
by motion for a mandamus. The court discussed and decided three questions:
1. Had the applicant a right to the commission he demanded?
2. If he had such right and that right had been violated, would the laws of his country
afford him a remedy?
3. If they afford him a remedy was it a mandamus issuing from that court?
That court held that Marbury had been duly and regularly appointed justice of the peace
and that the appointment conferred upon him a legal right to the office; that having this
legal title to the office he had a consequent right to the commission was a plain violation
of the appellant's right for which the laws of his country afforded him a remedy. The case
went off on a jurisdictional question and the writ was denied. The court said:
The Act to established the judicial courts of the United States authorizes the
Supreme court "to issue writs of mandamus, in cases warranted by the principles
and usages of law, to any courts appointed or persons holding office, under the
authority of the United States.' The Secretary of State being, a person holding an
office under the authority of the United States, is precisely within the letter of this
description; and if this court is not authorized to issue a writ of mandamus to such
an officer, it must be because the law is unconstitutional, and therefore, absolutely
incapable of conferring the authority, and assigning the duties which its words
purport to confer and assign.
After due consideration of the question as to the constitutionality of this Act, the court held
that it was unconstitutional and that it had no original jurisdiction to issue the writ,
inasmuch as this was a proceeding filed in the Supreme Court and did not come up by
appeal. If the proceedings had been instituted in an inferior court and came to the
Supreme Court on appeal, then the court might have had jurisdiction.
Chief Justice Marshall's same words were used in the case of Martin vs. Ingham (38 Kan.,
641), as a basis for holding that the writ of mandamus would lie to the governor to compel
the performance of a purely ministerial duty. The court in this case, after quoting these
words of Chief Justice Marshall, said (p. 654):
And such is the rule in al cases unless the courts are required to make an
exception in favor of the governor.
This statement of the Chief Justice, relied upon in the Ohio, Kansas, and other cases,
deserves due consideration; but it has been held by a number of courts to be dictum,
inasmuch as the only question which it was necessary to determine was one of original
jurisdiction. Chief Justice Marshal, in the same opinion, made use of this language:
Still, to render the mandamus a proper remedy, the officer to whom it is to be
directed, must be one to whom, on legal principles, such writ may be directed.
On the other hand, Merrill on Mandamus, p. 102 et seq., summarizing the decisions
relative to the question of mandamus against governors of States, says that:
A large number of State courts hold that the writ of mandamus will never run
against the governor of a State, assigning as reasons for such ruling political
necessity and public policy, regardless of whether duty be imposed upon him by
the State constitution or by statute.
And under the heading "Deductions From the Decisions," concludes:
Fortunately such cases seldom arise, yet they show that the courts can not cope
with al the difficulties, and f they can not act in some cases it can not follow that
they are necessarily the parties to pass on the other cases, where political
questions of a similar nature are involved, namely, the independence of the
various coordinate branches of the government. When it is remembered that the
use of this writ is the outgrowth of necessity in order to meet the demands of
justice, and its issuance is largely dependent upon the discretion of the court, its
use to determine the legality of a body claiming to be a legislature seems
questionable, while its issue to compel an action by the governor would seem to
be entirely inappropriate.
One of the leading cases which support the proposition that the courts have no jurisdiction
to control the official acts of a State governor is that of Sutherland vs. Governor (29 Mich.,
320). The opinion in this case was delivered by Justice Cooley, one of the leading
American jurists. This is a very exhaustive opinion and followed by a number of the State
courts. We think it pertinent to note the major points in this case and quote extensively
from this opinion.
In 1847 an application was made to the supreme court of Michigan for an order requiring
the governor to show cause why he did not issue his certificate showing that they Portage
Lake and Lake Superior ship canal and harbor have been constructed in conformity with
the Acts of Congress making a land grant for the same, and the acts of the legislature of
this State conferring the grant upon a corporation, which the relators now claim to
represent.
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When this application was first presented to the court, it declined to make the usual ex
parte order until the question of jurisdiction was argued. This having been done on the
voluntary appearance of counsel for the relators, and of the attorney-genera on behalf of
the governor, the question of jurisdiction was squarely submitted to the court.
The duty which the court was asked to compel the governor to perform was one imposed
upon by him by statute. The relators insisted that the question involved in this case was a
purely judicial one, involving nothing but a proper construction of the law.
It was not claimed on the part of the relators that court, or any other, had jurisdiction to
require and compel the performance by the governor of his political duties, or the duties
devolved upon by him as a component part of the legislature. It was conceded that these
duties, under the constitution and laws, were to be exercised according to his own
judgment and on his own sense of official responsibility, and that from his decision o act or
decline to act therefore could be no appeal to the courts.
The relators submitted the following proposition to the court which was made the basis of
the decision. They claimed that, "where the act is purely ministerial, and the right of the
citizen to have it performed is absolute (vested right), the governor, no more than any
other officer, is above the laws, and the obligation of the courts, on a proper application,
to require him to obey the laws, is the same that exists in any other case where an official
ministerial duty is regarded.
It would be difficult to express the proposition in more absolute and emphatic terms. The
court first considered the advisability of attempting to draw the lines between those duties
of the governor which are political and those which are to be considered ministeria, and
upon this point the court said:
There is no very clear and palpable line of distinction between those duties of the
governor which are political, and those which are to be considered ministerial
merely; and if we should undertake to draw one, and to declare that in all cases
falling on one side the line the governor was subject to judicial process, and in
falling on the other he was independent of it, we should open the doors to an
endless train in litigation, and the cases would be numerous in which neither the
governor nor the parties would be able to determination whether his conclusion
was, under the law, to be final, and the courts would be appealed to by every
dissatisfied party to subject a coordinate department of the government to their
jurisdiction. However desirable a power in the judiciary to interfere in such cases
might seem from the standpoint of interested parties, it is manifest that harmony
of action between the executive and judicial departments would be directly
threatened, and that the exercise of such power could only be justified on most
imperative reasons. Moreover, it s not customary in our republican government to
confer upon the governor duties merely ministerial, and in the performance of
which he is to be left to no discretion whatever; and the presumption in all cases
must be, where a duty is devolved upon the chief executive of the State rather
than upon an inferior officer, that it is so because his superior judgment,
discretion, and sense of responsibility were confided in for a more accurate,
faithful, and discreet performance than could be relied upon if the duty were
devolved upon an officer chosen for inferior duties.
We are not disposed, however, in the present case, to attempt on any grounds to
distinguish it from other cases of executive duty with a view to lay down an arrow
rule which, while disposing of this motion, may leave the grave question it
presents to be presented again and again in other cases which the ingenuity of
counsel may be able to distinguish in some minor particulars from the one before
us. If a broad general principle underlies al these cases, and requires the same
decision in all, it would scarcely be respectful to the governor, or consistent with
our own sense of duty, that we should seek to avoid its application and strive to
decide each in succession upon some narrow and perhaps technical point peculiar
to the special case, if such might be discovered.
In speaking of the apportionment of powers of government between the three great
distinct coordinate departments, the court said:
Our government is one whose powers have been carefully apportioned between
three distinct departments, which emanate alike from the people, have their
powers alike limited and defined by the constitution, are of equal dignity, and
within their respective spheres of action equally independent.
It has long been a maxim in this country that the legislature can not dictate to the
courts what their judgments shall be, or set aside or alter such judgments after
they have been rendered. If it could, constitutional liberty would cease to exist;
and if they legislature could in like manner override executive action also, the
government would become only a despotism under popular forms. On the other
hand, it would readily conceded that no court can compel the legislature to make
or to refrain from making laws, or to meet or adjourn at its command, or to take
any action whatsoever, though the duty to take it be made ever so clear by the
constitution or the laws.
As the legislative and judicial departments, acting within their respective spheres, are so
entirely independent, the court then proceeded to determine on what ground an
intervention in the case of executive duties could be justified. As the court well said in this
case, such intervention could certainly not be justified on the ground that the executive is
only a single person, who need await the advice or consent of no one before proceeding to
the discharge of his duty, and whose default will consequently be more palpable when he
acts wrongfully or refuses to act at al, than the default of any member of an aggregate
body, like a legislature or a court, nor can it be because the reference of a duty or
authority to an aggregate body raises an implication that it is entrusted to its judgment or
discretion any more than if it were referred for performance or exercise to one person
only. Then, if intervention is ever justifiable it must be upon the ground of the nature of
the act to be performed. Upon this point of the case the court said:
One reason very strongly pressed why the governor is subject to process in cases
like the present is, that the act required is not to be done in performance of an
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 executive duty imposed by the constitution, but is in its nature a ministerial act,
provided by statute, and which might, with equal propriety, have been required of
an inferior officer, who, beyond question, could have been compelled
by mandamus to take the necessary and proper action in the premises. And the
question is put with some emphasis, whether, when an individual interests depend
upon the performance of ministerial action, to which the party is entitled of right,
the question whether there shall be a remedy or not can depend upon the
circumstance that in the particular case the ministerial action is required of a
superior officer when there is no reason in its nature why it might not have been
required of an interior.
In many cases it is unquestionable that the head of an executive department may be
required by judicial process to perform a legal duty, while in other cases, in our judgment,
the courts would entirely without jurisdiction; and, as regards such an officer, we should
concede that the nature of the case and of the duty to interfere in each particular
instance. When the head of a department acts as the mere assistant or agent of the
executive in the performance of a political or discretionary act, he is no more subject to
the control of the courts than the chief executive himself; but where a ministerial act is
required to be done by him, independently of the executive though in a certain sense he is
an executive officer, it would be as idle as it would be to make the same claim to
exemption on behalf of an officer entrusted with similar duties of a lower grade.
denial of redress by the proper tribunal constitute any ground for interference by
any other authority? The law must leave the final decision upon every claim and
every controversy somewhere, and when that decision has been made, it must be
accepted as a correct. The presumption is just as conclusive in favor of execution
action as in favor of judicial.
The court then declined to make any order to show cause.
Another leading case which supports the same proposition, that the courts have
jurisdiction to control the official acts of a State governor, is that of Hawkins vs.
Governor (1 Ark., 570., 33 Am. Dec., 346), decided in 1839. In this case an act of the
legislature declared "that there shall be elected by the general assembly a commissioner
of public buildings" and that this official shall be commissioned by the governor. The
applicant was duly elected, but the governor wth held the commission, In passing upon
the question involved, the court, speaking through Justice Lacy, said (p. 347):
The first question, then, submitted for our consideration and decision is, has the
supreme court jurisdiction of the case? or is the governor of the State such an
officer to whom the writ may be properly directed upon legal or constitutional
principles?

So far as this case (Marbury vs. Madison) can be considered as authority at all, it
The apportionment of power, authority, and duty to the governor is either made
goes to disprove the position that the writ can legally be directed to the executive
by the people in the constitution, or by the legislative in making laws under it; and
of the State (p. 349).
the courts, when the apportionment has been made, would be presumtuous if they
should assume to declare that a particular duty assigned to the governor is not
essentially executive. All the officers of the government, except the President of the United States, and
the executives (governors) of the States, are liable to have their acts examined in
a court of justices. The president and executives (governors), by the theory and
Were the courts to go so far, they would break away from those checks and
practice of our peculiar systems of government, are exempted upon the ground of
balances of government which were meant to be checks of cooperation and not of
political necessity and of public policy. (p. 351).
the antagonism or mastery, and would concentrate in their own hands something
at least of the power which the people, either directly or by the action of their
respective, decided to entrust to the other departments of the government. An moment's examination of the structure and character of the executive
department, will be sufficiently to satisfy anyone, that all of his legal or
constitutional duties are political, and that he is only accountable for them to his
It was urged that it should be held that the governor could not be compelled to perform
country, and to his own conscience, in a political manner (p. 358).
purely ministeria duties, that such a conclusion would leave parties, who have rights in
many cases, without a remedy. In disposing of this question the court said:
Another well-considered case supporting the same proposition is that of Bates vs.
Taylor (11 S. W., 266), and which was followed in the latter case, decided in 1905,
Practically there are a great many such cases, but theoretically there are none at
of State vs. Frazier, Governor (86 S. W., 339). In the case of Bates vs. Taylor, a bill was
all. All wrongs, certainly, are not redressed by the judicial department. A party
filed to compel the governor of the State of Tennessee to delver a certificate of election to
may be deprived of a right by a wrong verdict, or an erroneous ruling a judge, and
the complainant and to prevent the issuance of one to another applicant. In passing upon
though who are to decide upon his rights, he will be without redress. A person
the questions presented the court said:
lawfully chosen to the legislature may have his seat given by the house to
another, and be thus wronged without remedy. A just claim against the State may
be rejected by the board of auditors, and neither the governor nor the courts can The main question debated at the bar, and that which is conclusive of the case, is
give relief. A convicted person may conclusively demonstrate his innocence to the one of jurisdiction. The constitution ordains that the governor of the State shall
governor, and still be denied a pardon. In which one of these cases could the perform certain duties therein prescribed, and, and such others as may from time
to time be devolved upon by him by act of the legislature. Among the duties so

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 devolved upon him by statute is that of issuing a commission or certificate of
election to each person elected representative to Congress. The issuance of such
commission or certificate, whether called a ministerial or an executive duty, is an
official action, whose performance can be neither coerced nor restrained by the
courts.
We are fully persuaded not only that the weight of authority, but also the weight
of reason, is against the power of the courts to coerce the chief executive of a
State into the performance of any official duty.
The statute devolving upon the governor the duty of issuing a commission or
certificate of election necessarily confers upon him the right of determining when
and how that duty, within the law, must be performed; and, when he comes to do
the thing required, he must be allowed to do it according to his own judgment as
to the meaning of the law, and on his own sense official responsibility under his
oath.
A case in which the court dismissed the proposition that there can not be an injury without
a remedy, is that of the People vs. Bissell (19 Ill., 229). In this case the court said (p.
232):
It is urged upon us, that in a government of laws there must be an adequate remedy for
every wrong, and that were a clear right exists, there must be some mode of enforcing
that right. While human society is governed by so imperfect a being as man, this can be
true only in theory. If we are to compel the governor or the legislature to right of every
wrong which may arise from their omissions of duty, then surely must, in order to make
this Utopian system perfect, have the power to compel us to do the right in every case.
May it not be as will supposed that we will act perversely, and refuse to perform a duty
imposed upon us, to the injury of the citizen, as that the governor will do so? In the
information of the government, equal confidence was rightfully reposed in each
department, to which appropriate and independent duties were assigned.
A case showing the difficulties which would arise if the courts were to attempt to
differentiate between ministerial act and discretionary acts of the governor comes from
the civil la, State of Louisiana. (State vs. Warmoth, 22 La. Ann., 1.) In this case the court
said (p. 4):
Circumstances may arise an conditions may exist which would require the governor of a
State in the proper exercise of his duty, with regard to the interests of the State, not to
perform a ministerial act. Is the judge to determine his duty in such a case and compel
him to perform it? The reasons of the executive for the nonperformance of an act the
judge may never know, or if brought to his knowledge, he may review and overrule them,
and, in so doing, assume political functions.
In the case of People vs. Cullom (100 Ill., 472), the substantial facts were as follows: the
county judge of Ogle County resigned his office. The governor was notified of the
resignation and appointed a judge to fill the vacancy. A petition was presented to the
governor asking him to call a special election on the ground that under the constitution he
had no power to appoint. The Governor refused to call an election and mandamus was
asked to compel him to do so. The court, without discussion, based its opinion upon the
case of People vs. Bissell (supra), and denied the petition.
We think that the weight of authority, based upon legal principles and sound reasoning,
supports the proposition that in the United States the supreme courts of the States do not
have jurisdiction to control the official acts of the governor. For better reasons we
conclude that this court has no jurisdiction, either by mandamus or injunction, to control
the official acts of he Governor-General, inasmuch as we have seen that his duties,
powers, and responsibilities are more comprehensive than those conferred upon any State
governor. When the Philippine legislative body confers upon the Governor-General powers
and duties, it does so for the reason that he is in a better position to know the needs of
the country than any other member of the executive department, and with the full
confidence that he will perform such duties under his official oath, as his best judgment
dictates. If this had not been the intention of the Legislature, they could have placed the
duty upon some other official of the executive department. It is no doubt is sometimes
very necessary for the Governor-General to perform certain important executive duties
without delay, and should this court attempt to distinguish between the purely ministerial
and discretionary duties, conferred upon by him by law, and attempt to determine in each
case which are purely ministerial, which are political, or which are discretionary, the
Governor-General, to that extent, would become subservient to the judiciary. To avoid this
is why the three great coordinate departments of the Government were created and made
independent of each other. President McKinley in creating civil government in this country
took into consideration these fundamental principles of separate and independent
departments, which have been demonstrated to be essential to a republican form of
government, and conferred upon the Governor-General, as the Executive of the Philippine
Islands, the power to execute the laws according to his best judgment, holding him
responsible to the President of the United States, without interference on the part of the
judiciary. In so doing he reposed in the Executive, acting independently of the judiciary,
would be in a better position to carry out the great underlying principles of American
institutions for the peace and happiness of the inhabitants of this country. The President
realized that the final decision of every question in controversy must be left somewhere,
and when such decision has been made i must be accepted as correct. The presumption is
just as conclusive in favor of executive action, as to its correctness and justness, as it is in
favor of the judicial action.
It is argued that if the courts have no control over the official acts of the Governor-
General, the Government would become one of men and not of laws. If this is true, why is
it not also true that if the judiciary, which is composed of men can enter the filed assigned
to the Chief Executive and determine what are his political, ministerial, and discretionary
duties, the Government, to that extent, would become one of men and not of laws?
In the case at bar we are called upon to compel the Governor-General to call a special
election in the town of Silay for the purpose of electing a municipal president. We are not
disposed, neither will we attempt on any grounds, to distinguish this case from any other
case of executive duty, with a view, as was said in the case of Sutherland vs.
Governor (supra), "to lay down a narrow rule which, while it presents to be presented
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again and again in other cases." But after due consideration, and being fully aware of the
seriousness of the question, we have reached the conclusion that we have no jurisdiction
to interfere with the Governor-General of these Islands, as the head of the executive
department, in the performance of any of his official acts.
For the foregoing reasons we conclude:
1. That the preliminary injunction prayed for in this case should not be issued;
2. That the facts alleged in the complaint do not constitute a cause of action; and,
3. That we can not an should not entertain a complaint which seeks to control or interfere
with the official duties of the Governor-General.
The demurer is, therefore, sustained, and the complaint dismissed, without special ruling
as to costs.
G.R. No. L-19313 January 19, 1962
DOMINADOR R. AYTONA, petitioner,
vs.
ANDRES V. CASTILLO, ET AL., respondents.
R E S O L U T I O N.
BENGZON, C.J.:
Without prejudice to the subsequent promulgation of more extended opinion, the Court
adopted today, the following resolutions: .
On December 29, 1961, then President Carlos P. Garcia appointed Dominador R. Aytona
as ad interim Governor of the Central Bank. On the same day, the latter took the
corresponding oath.
On December 30, 1961, at noon, President-elect Diosdado Macapagal assumed office; and
on December 31, 1961, he issued Administrative Order No. 2 recalling, withdrawing, and
cancelling all ad interim appointment made by President Garcia after December 13, 1961,
(date when he, Macapagal, had been proclaimed elected by the Congress). On January 1,
1962, President Macapagal appointed Andres V. Castillo as ad interim Governor of the
Central Bank, and the latter qualified immediately.
On January 2, 1962, both appointed exercised the powers of their office, although Castillo
informed Aytona of his title thereto; and some unpleasantness developed in the premises
of the Central Bank. However, the next day and thereafter, Aytona was definitely
prevented from holding office in the Central Bank.
So, he instituted this proceeding which is practically, a quo warranto, challenging Castillo's
right to exercise the powers of Governor of the Central Bank. Aytona claims he was validly
appointed, had qualified for the post, and therefore, the subsequent appointment and
qualification of Castillo was void, because the position was then occupied by him. Castillo
replies that the appointment of Aytona had been revoked by Administrative Order No. 2 of
Macapagal; and so, the real issue is whether the new President had power to issue the
order of cancellation of the ad interim appointments made by the past President, even
after the appointees had already qualified.1äwphï1.ñët
The record shows that President Garcia sent to the Commission on Appointments — which
was not then in session — a communication dated December 29, 1961, submitting "for
confirmation" ad interim appointments of assistant director of lands, councilors, mayors,
members of the provincial boards, fiscals, justices of the peace, officers of the army, etc.;
and the name of Dominador R. Aytona as Governor of the Central Bank occupies number
45, between a justice of the peace and a colonel of the Armed Forces.
Another communication of President Garcia bearing the same date, submitted a list of ad
interim appointments of Foreign Affairs officers, judges, fiscals, chiefs of police, justices of
the peace, mayors, councilors, etc. number 63 of which was that of Dominador R. Aytona
for Governor of the Philippines in the Boards of International Monetary Fund, International
Bank for Reconstruction and Development, etc.
A third communication likewise dated December 29, 1961, addressed to the Commission
on Appointments submitted for confirmation 124 names of persons appointed as judges of
first instance, members of provincial boards, and boards of government corporations,
fiscals, justice of the peace, even one associate justice of this Court occupying position No.
8 and two associate justices of the Court of Appeals (9 and 10) between an assistant of
the Solicitor-General's Office, and the chairman of the board of tax appeals of Pasay City,
who in turn are followed by judges of first instance, and inserted between the latter is the
name of another associate justice of the Court of Appeals.
There were other appointments thus submitted by President Garcia on that date,
December 29, 1961. All in all, about three hundred fifty (350) "midnight" or "last minute"
appointments.
In revoking the appointments, President Macapagal is said to have acted for these and
other reasons: (1) the outgoing President should have refrained from filling vacancies to
give the new President opportunity to consider names in the light of his new policies,
which were approved by the electorate in the last elections; (2) these scandalously hurried
appointments in mass do not fall within the intent and spirit of the constitutional provision
authorizing the issuance of ad interim appointments; (3) the appointments were irregular,
immoral and unjust, because they were issued only upon the condition that the appointee
would immediately qualify obviously to prevent a recall or revocation by the incoming
President, with the result that those deserving of promotion or appointment who preferred
to be named by the new President declined and were by-passed; and (4) the abnormal
conditions surrounding the appointment and qualifications evinced a desire on the part of
the outgoing President merely subvert the policies of the incoming administration.
It is admitted that many of the persons mentioned in the communication to the
Commission on Appointments dated December 29, 1961, did not qualify. There is evidence
that in the night of December 29, there was a scramble in Malacañan of candidates for
positions trying to get their written appointments or having such appointments changed to
more convenient places, after some last minute bargaining. There was unusual hurry in
96 | P a g e
the issuance of the appointments — which were not coursed through the Department
Heads — and in the confusion, a woman appointed judge was designated "Mr." and a man
was designated "Madam." One appointee who got his appointment and was required to
qualify, resorted to the rush of asking permission to swear before a relative official, and
then never qualified.
We are informed, it is Malacañan's practice — which we find to be logical — to submit ad
interim appointments only when the Commission on Appointments is in session. One good
reason for the practice is that only those who have accepted the appointment and qualified
are submitted for confirmation. Nevertheless, this time, Malacañan submitted its
appointments on the same day they were issued; and the Commission was not then in
session; obviously because it foresaw the possibility that the incoming President would
refuse to submit later the appointees of his predecessor. As a result, as already adverted
to, some persons whose names were submitted for confirmation had not qualified nor
accepted their appointments.
Because of the haste and irregularities, some judges of first instance qualified for districts
wherein no vacancies existed, because the incumbents had not qualified for other districts
to which they had been supposedly transferred or promoted.
Referring specifically to judges who had not qualified, the course of conduct adopted by
Former Chief Justice Moran is cited. Being ambassador in Spain and desiring to return to
this Court even as associate justice, Moran was tendered an ad interim appointment
thereto by President Quirino, after the latter had lost the election to President Magsaysay,
and before leaving the Presidency. Said Ambassador declined to qualify being of the
opinion that the matter should be left to the incoming newly-elected President.
Of course, nobody will assert that President Garcia ceased to be such earlier than at noon
of December 30, 1961. But it is common sense to believe that after the proclamation of
the election of President Macapagal, his was no more than a "care-taker" administration.
He was duty bound to prepare for the orderly transfer of authority the incoming President,
and he should not do acts which he ought to know, would embarrass or obstruct the
policies of his successor. The time for debate had passed; the electorate had spoken. It
was not for him to use powers as incumbent President to continue the political warfare
that had ended or to avail himself of presidential prerogatives to serve partisan purposes.
The filling up vacancies in important positions, if few, and so spaced to afford some
assurance of deliberate action and careful consideration of the need for the appointment
and the appointee's qualifications may undoubtedly be permitted. But the issuance of 350
appointments in one night and planned induction of almost all of them a few hours before
the inauguration of the new President may, with some reason, be regarded by the latter as
an abuse Presidential prerogatives, the steps taken being apparently a mere partisan
effort to fill all vacant positions1 irrespective of fitness and other conditions, and thereby
deprive the new administration of an opportunity to make the corresponding
appointments.
Normally, when the President makes appointments the consent of the Commission on
Appointments, he has benefit of their advice. When he makes ad interim appointments, he
exercises a special prerogative and is bound to be prudent to insure approval of his
selection either previous consultation with the members of the Commission or by
thereafter explaining to them the reason such selection. Where, however, as in this case,
the Commission on Appointments that will consider the appointees is different from that
existing at the time of the appointment2 and where the names are to be submitted by
successor, who may not wholly approve of the selections, the President should be doubly
careful in extending such appointments. Now, it is hard to believe that in signing 350
appointments in one night, President Garcia exercised such "double care" which was
required and expected of him; and therefore, there seems to be force to the contention
that these appointments fall beyond the intent and spirit of the constitutional provision
granting to the Executive authority to issue ad interim appointments.
Under the circumstances above described, what with the separation of powers, this Court
resolves that it must decline to disregard the Presidential Administrative Order No. 2,
cancelling such "midnight" or "last-minute" appointments.
Of course, the Court is aware of many precedents to the effect that once an appointment
has been issued, it cannot be reconsidered, specially where the appointee has qualified.
But none of them refer to mass ad interimappointments (three-hundred and fifty), issued
in the last hours of an outgoing Chief Executive, in a setting similar to that outlined herein.
On the other hand, the authorities admit of exceptional circumstances justifying
revocation3 and if any circumstances justify revocation, those described herein should fit
the exception.
Incidentally, it should be stated that the underlying reason for denying the power to
revoke after the appointee has qualified is the latter's equitable rights. Yet it is doubtful if
such equity might be successfully set up in the present situation, considering the rush
conditional appointments, hurried maneuvers and other happenings detracting from that
degree of good faith, morality and propriety which form the basic foundation of claims to
equitable relief. The appointees, it might be argued, wittingly or unwittingly cooperated
with the stratagem to beat the deadline, whatever the resultant consequences to the
dignity and efficiency of the public service. Needless to say, there are instances wherein
not only strict legality, but also fairness, justice and righteousness should be taken into
account.
WHEREFORE, the Court exercising its judgment and discretion in the matter, hereby
dismiss the action, without costs.
97 | P a g e
 G.R. No. L-47245 December 9, 1977
GUALBERTO J. DELA LLANA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE SECRETARY
OF FINANCE and THE BUDGET COMMISSIONER, respondents.
RESOLUTION
CASTRO, C.J.:
Considering the allegations, issues presented, and arguments adduced (a) in what the
petitioner has denominated as a "Petition for Prohibition or Declaratory Relief," (b) in the
Solicitor General's Comment on the petition, and (c) at the hearing on November 24,
1977, the Court Resolved NOT to give due course to the petition and to DISMISS the
same, for the reasons hereunder set forth.
(1) The question to be submitted to the people in the December 17, 1977 referendum
which reads, "Do you vote that President Ferdinand E. Marcos continue in office as
incumbent President and be Prime Minister after the organization of the Interim Batasang
Pambansa as provided for in Amendment No. 3 of the 1976 Amendments to the
Constitution?," is in neither the nature nor the form of an amendment. The holding of the
referendum will not result in an indirect amendment to Amendment No. 3 to the
Constitution which provides that "The incumbent President of the Philippines shall be the
Prime Minister and he shall continue to exercise all his powers even after the interim
Batasang Pambansa is organized and ready to discharge its functions and likewise he shall
continue to exercise his powers and prerogatives under the Nineteen Hundred and Thirty
Five Constitution and the powers vested in the President and the Prime Minister under this
Constitution." Presidential Decree No. 1229 which calls for the December 17, 1977
referendum cannot therefore be said to suffer from any constitutional infirmity. If the
people vote "yes," Amendment No. 3 will merely be reaffirmed and reinforced. If the
people vote "no," the incumbent President, heeding "the will" of the people, will - as he
has categorically announced - resign; in such situation, he will be merely exercising the
prerogative, inherent in all public officials, to resign. In either case the Constitution, as it
now reads, will remain unaltered.
(2) The matter of whether or not the holding of the December 17, 1977 referendum is
unnecessary because the people, on several occasions, had already expressed their assent
to the incumbent President's continuance in office and their approval of his programs of
government, is a political and non-justiciable question, involving as it does the wisdom, no
more and no less, of the decision to call for a referendum. The power to determine when a
referendum should be called and what matter is important for referral to the people,
resides in the political branch of the Government, the exercise of which involves
consideration of a multitude of factors political, social, economic, etc. - normally outside
the periphery of competence of the courts.
(3) The call for the referendum is explicitly authorized by Amendment No. 7 of the
Constitution which in part provides that "Referenda conducted thru the barangays and
under the supervision of the Commission on Elections may be called at any time the
government deems it necessary to ascertain the will of the people regarding any important
matter whether of national or local interest." If, pursuant to this grant of power, the
President decides, as he has decided, to consult with the people and submit himself to a
vote of confidence in a referendum because he deems it important to do so, he cannot be
constitutionally faulted. His action would also be in full accord with the spirit of Section 1,
Article XIII of the Constitution, which states that public office is a public trust and that
public officers shall remain accountable to the people.
It is clear from the above that the petition does not pose any question of sufficient
importance or significance to warrant the further intention of the Court.
The dismissal of the instant petition is immediately executory.
G.R. No. 22041 September 11, 1924
JOSE ALEJANDRINO, petitioner,
vs.
MANUEL L. QUEZON, ET AL., respondents.
MALCOLM, J.:
The petitioner in this original proceeding in mandamus and injunction is Jose Alejandrino,
a Senator appointed by the Governor-General to represent the Twelfth Senatorial District.
The respondents are Manuel L. Quezon, President of the Philippine Senate; Isabelo de los
Reyes, Santiago Fonacier, Alejo Mabanag, Bernabe de Guzman, Ramon Fernandez,
Emiliano T. Tirona, Antero Soriano, Juan B. Alegre, Vicente de Vera, Jose Ma. Arroyo,
Francisco Enage, Tomas Gomez, Sergio Osmeña, Celestino Rodriguez, Francisco Soriano,
Jose A. Clarin, Hadji Butu, Espiridion Guanco, Hermenegildo Villanueva, Jose Hontiveros,
Teodoro Sandiko, and Santiago Lucero, all members of the Philippine Senate; Faustino
Aguilar, Secretary of the Philippine Senate; Bernabe Bustamante, Sergeant-at-arms of the
Philippine Senate, and Francisco Dayaw, Paymaster of the Philippine Senate.
The casus belli is a resolution adopted by the Philippine Senate composed of the
respondent Senators, on February 5, 1924, depriving Senator Alejandrino of all the
prerogatives, privileges, and emoluments of his office for the period of one year from the
first of January, 1924. The resolution reads as follows:
Resolved: That the Honorable Jose Alejandrino, Senator for the Twelfth District,
be, as he is hereby declared guilty of disorderly conduct and flagrant violation of
the privileges of the Senate for having treacherously assaulted the Honorable
Vicente de Vera, Senator for the Sixth District on the occasion of the debate
regarding the credentials of said Mr. Alejandrino;
Resolved, further: That the Honorable Jose Alejandrino be, as he is hereby,
deprived of all of his prerogatives, privileges and emoluments as such Senator
during one year from the first of January, nineteen hundred and twenty-four;
98 | P a g e
 And, resolved, lastly: That the said Honorable Jose Alejandrino, being a Senator
appointed by the Governor-General of these Islands, a copy of this resolution be
furnished said Governor-General for his information.
The burden of petitioner's complaint is that the resolution above quoted is unconstitutional
and entirely of no effect, for five reasons. He prays the court: (1) To issue a preliminary
injunction against the respondents enjoining them from executing the resolution; (2) to
declare the aforesaid resolution of the Senate null and void; and (3) as a consequence of
the foregoing, to issue a final writ of mandamus and injunction against the respondents
ordering them to recognize the rights of the petitioner to exercise his office as Senator and
that he enjoy all of his prerogatives, privileges, and emoluments, and prohibiting them
from preventing the petitioner from exercising the rights of his office, and from carrying
the order of suspension, into effect. By special appearance, the Attorney-General, in
representation of the respondents, has objected to the jurisdiction of the court, and later,
by demurrer, has pressed the same point.
In order that an obvious angle to the case may not subsequently embarrass us, we desire
first of all to say that looking through the form of the action to the substance, this is, in
effect, a suit instituted by one member of the Philippine Senate against the Philippine
Senate and certain of its official employees. May the Supreme Court of the Philippines
Islands by mandamus and injunction annul the suspension of Senator Alejandrino and
compel the Philippine Senate to reinstate him in his official position? Without, therefore, at
this time discussing any of the other interesting questions which have been raised and
argued, we proceed at once to resolve the issue here suggested.
There are certain basic principles which lie at the foundation of the Government of the
Philippine Islands, which are familiar to students of public law. It is here only necessary to
recall that under our system of government, each of the three departments is distinct and
not directly subject to the control of another department. The power to control is the
power to abrogate and the power to abrogate is the power to usurp. Each department
may, nevertheless, indirectly restrain the others.
It is peculiarly the duty of the judiciary to say what the law is, to enforce the Constitution,
and to decide whether the proper constitutional sphere of a department has been
transcended. The courts must determine the validity of legislative enactments as well as
the legality of all private and official acts. To this extent, do the courts restrain the other
departments.
With these sound premises in mind, we are not at all surprised to find the general rule
of mandamus to be, that the writ will not lie from one branch of the government to a
coordinate branch, for the very obvious reason that neither is inferior to the
other. Mandamus will not lie against the legislative body, its members, or its officers, to
compel the performance of duties purely legislative in their character which therefore
pertain to their legislative, functions and over which they have exclusive control. The
courts cannot dictate action in this respect without a gross usurpation of power. So it has
been held that there where a member has been expelled by the legislative body, the
courts have no power, irrespective of whether the expulsion was right or wrong, to issue a
mandate to compel his reinstatement. (Code of Civil Procedure, secs. 222, 515; 18 R. C.
L., 186, 187; Cooley, Constitutional Limitations, 190; French vs.Senate [1905], 146 Cal.,
604; Hiss vs. Bartlett [1855], 69 Mass., 468; Ex parte Echols [1886], 39 Ala., 698;
State vs.Bolte [1889], 151 Mo., 362; De Diego vs. House of Delegates [1904], 5 Porto
Rico, 235; Greenwood Cemetery Land Co. vs. Routt [1892], 17 Colo., 156; State ex rel.
Cranmer vs. Thorson [1896], 33 L. R. A., 582; People ex rel. Billings vs. Bissell [1857], 19
Ill., 229; People ex rel. Bruce vs. Dunne [1913], 258 Ill., 441; People ex rel. La
Chicote vs. Best [1907], 187 N. Y., 1; Abueva vs. Wood [1924], 45 Phil., 612.)
The authorities which support the doctrines above announced are numerous and
instructive. They are found among the decisions of our own court, of the United States
Supreme Court, and of other jurisdictions. If some of these cases relate to the chief
executive rather than to the legislature, it is only necessary to explain that the same rules
which govern the relations of the court to the chief executive likewise govern the relations
of the courts to the legislature.
The controlling case in this jurisdiction on the subject is Severino vs. Governor-General
and Provincial Board of Occidental Negros ([1910], 16 Phil., 366). This was an original
application made in this court praying for a writ of mandamus to the Governor-General to
compel him to call a special election as provided by law. The Attorney-General demurred
to the petition on the ground of lack of jurisdiction, and the court, after an elaborate
discussion, reached the conclusion that "we have no jurisdiction to interfere with the
Governor-General of these Islands, as the head of the executive department, in the
performance of any of his official acts." The demurrer was accordingly sustained and the
complaint dismissed. It is noted that in this decision reliance was placed on the cases of
Mississippi vs. Johnson and Ord ([1867], 4 Wall., 475, and Sutherland vs. Governor
([1874], 29 Mich., 320), which we will now proceed to notice.
State of Mississippi vs. Andrew Johnson, President of the United States, supra, concerned
a bill praying the United States, Supreme Court to enjoin and restrain Andrew Johnson,
President of the United States, and E. O. C. Ord, General Commanding in the District of
Mississippi and Arkansas from executing certain Acts of Congress. Mr. Chief Justice Chase
delivering the opinion of the court said the single point which required consideration was
this: Can the President be restrained by injunction from carrying into effect an Act of
Congress alleged to be unconstitutional? He continued:
The Congress is the Legislative Department of the Government; the President is
the Executive Department. Neither can be restrained in its action by the Judicial
Department; though the acts of both, when performed, are, in proper cases,
subject to its cognizance.
The impropriety of such interference will be clearly seen upon consideration of its
possible consequences.
Suppose the bill filed and the injunction prayed for allowed. If the President refuse
obedience, it is needless to observe that the court is without power to enforce its
process. If, on the other hand, the President complies with the order of the court
99 | P a g e
 and refuses to execute the Acts of Congress, is it not clear that a collision may
occur between the Executive and Legislative Departments of the Government? May
not the House of Representatives impeach the President for such refusal? And in
that case could this court interfere in behalf of the President, thus endangered by
compliance with its mandate, and restrain by injunction the Senate of the United
States from sitting as a court of impeachment? Would the strange spectacle be
offered to the public wonder of an attempt by this court to arrest proceedings in
that court?
These questions answer themselves.
We are fully satisfied that this court has no jurisdiction of a bill to enjoin the
President in the performance of his official duties; and that no such bill ought to be
received by us.
It has been suggested that the bill contains a prayer that, if the relief sought
cannot be had against Andrew Johnson, as President, it may be granted against
Andrew Johnson, as a citizen of Tennessee. But it is plain that relief as against the
execution of an Act of Congress by Andrew Johnson, is relief against its execution
by the President. . . .
Sutherland vs. Governor of Michigan, supra, well known to the legal fraternity on account
of being written by Judge Cooley, related to an application for mandamus to the Governor
to compel him to perform a duty imposed upon him by statute. Judge Cooley, in part,
said:
. . . Our government is on whose powers have been carefully apportioned between
three distinct departments, which emanate alike from the people, have their
powers alike limited and defined by the constitution, are of equal dignity, and
within their respective spheres of action equally independent.
It is true that neither of the departments can operate in all respects independently
of the others, and that what are called the checks and balances of government
constitute each a restraint upon the rest. . . . But in each of these cases the action
of the department which controls, modifies, or in any manner influences that of
another, is had strictly within its own sphere, and for that reason gives no
occasion for conflict, controversy or jealousy. The Legislature in prescribing rules
for the courts, is acting within its proper province in making laws, while the courts,
in declining to enforce an unconstitutional law, are in like manner acting within
their proper province, because they are only applying that which is law to the
controversies in which they are called upon to give judgment. It is mainly by
means of these checks and balances that the officers of the several departments
are kept within their jurisdiction, and if they are disregarded in any case, and
power is usurped or abused, the remedy is by impeachment, and not by another
department of the government attempting to correct the wrong by asserting a
superior authority over that which by the constitution is its equal.
It has long been a maxim in this country that the Legislature cannot dictate to the
courts what their judgments shall be, or set aside or alter such judgments after
they have been rendered. If it could, constitutional liberty would cease to exist;
and if the Legislature could in like manner override executive action also, the
government would become only a despotism under popular forms. On the other
hand it would be readily cancelled that no court can compel the Legislature to
make or to refrain from making laws, or to meet or adjourn at its command, or
to take any action whatsoever, though the duty to take it be made ever so clear
by the constitution or the laws. In these cases the exemption of the one
department from the control of the other is not only implied in the framework of
government, but is indispensably necessary if any useful apportionment of power
is to exist.
It is not attempted to be disguised on the part of the relators that any other
course than that which leaves the head of the executive department to act
independently in the discharge of his duties might possibly lead to unseemly
conflicts, if not to something worse, should the courts undertake to enforce their
mandates and the executive refuse to obey. . . . And while we should concede, if
jurisdiction was plainly vested in us, the inability to enforce our judgment would
be no sufficient reason for failing to pronounce it, especially against an officer who
would be presumed ready and anxious in all cases to render obedience to the law,
yet in a case where jurisdiction is involved in doubt it is not consistent with the
dignity of the court to pronounce judgments which may be disregarded with
impunity, nor with that of the executive to place him in position where, in a matter
within his own province, he must act contrary to his judgment, or strand convicted
of a disregard of the laws.
We only take space to notice on more case, which concerns specifically the right of the
judiciary to control by mandamus the action of the legislature. French vs. Senate of the
State of California, supra, was an original proceeding in mandamus brought by the
petitioners who were duly elected senators of the state to compel the Senate of California
to admit them as members thereof. It was alleged that the petitioners had been expelled
without hearing or opportunity for defense. The writ was denied, Mr. Justice Shaw
delivering the opinion of the court, saying:
Even if we should give these allegations their fullest force in favor of the pleader,
they do not make a case justifying the interposition of this court. Under our form
of government the judicial department has no power to revise even the most
arbitrary and unfair action of the legislative department, or of their house thereof,
taken in pursuance of the power committed exclusively to that department by the
constitution. . . .
There can be noted as specific corroborative authority, State vs. Bolte, supra,
Abueva vs. Wood, supra, and Commonwealth of Massachusetts vs. Mellon, Secretary of
the Treasury ([1923], 262 U. S., 447), the latest expression of opinion by the United
States Supreme Court. The record discloses that it was the firm opinion of the late Chief
Justice that the court should not assume jurisdiction of the proceedings.
100 | P a g e
So as to be perfectly fair to the petitioner, it is but proper to state that the principles laid
down in some of the preceding authorities have been the subject of adverse criticism. It is
said that the fallacy of the argument lies in the statement that the three departments of
the government are independent of each other. "They are independent in so far as they
proceed within their legitimate province and perform the duties that the law requires; yet
it has never been held that the executive was the sole judge of what duties the law
imposes upon him, or the manner in which duties shall be exercised. The final arbiter in
cases of dispute is the judiciary, and to this extent at least the executive department may
be said to be dependent upon and subordinate to the judiciary. . . . It is not the office of
the person to whom the writ of mandamus is directed, but the nature of the thing to be
done, by which the propriety of issuing a mandamus is to be determined." (2 Bailey
on Mandamus, pp. 926-927.) But these were arguments which should have been
presented years ago in this court, and which when recently presented by counsel in his
argument for the petitioner in the case of Perfecto vs. Wood, R. G. No. 20867, 1 met with
no favorable response from the court. It is now too late to go back and revise previous
decisions and overturn them; in fact this would be not only impracticable but impossible
since at least two decision of the United States Supreme Court seem to us to be
controlling.
No court has ever held and we apprehend no court will ever hold that it possesses the
power to direct the Chief Executive or the Legislature or a branch thereof to take any
particular action. If a court should ever be so rash as to thus trench on the domain of
either of the other departments, it will be the end of popular government as we know it in
democracies.
It is intimated rather faintly that, conceding all that is said with reference to the right of
the Supreme Court to issue mandamus directed to the Philippine Senate, yet we would be
justified in having our mandate run not against the Philippine Senate or against the
President of the Philippine Senate and his fellow Senators but against the secretary, the
sergeant-at-arms, and the disbursing officer of the Senate. But this begs the question. If
we have no authority to control the Philippine Senate, we have no authority to control the
actions of subordinate employees acting under the direction of the Senate. The secretary,
sergeant-at-arms, and disbursing officer of the Senate are mere agents of the Senate who
cannot act independently of the will of that body. Should the Court do as requested, we
might have the spectable presented of the court ordering the secretary, the sergeant-at-
arms, and the disbursing officer of the Philippine Senate to do one thing, and the
Philippine Senate ordering them to do another thing. The writ of mandamus should not be
granted unless it clearly appears that the person to whom it is directed has the absolute
power to execute it. (Turnbull vs. Giddings [1893], 95 Mich., 314;
Abueva vs. Wood, supra.)
The question of jurisdiction is invariably one of perplexing difficulty. On the one hand, no
consideration of policy or convenience should induce this court to exercise a power that
does not belong to it. On the other hand, no consideration of policy or convenience should
induce this court to surrender a power which it is its duty to exercise. But
certainly mandamus should never issue from this court where it will not prove to be
effectual and beneficial. It should not be awarded where it will create discord and
confusion. It should not be awarded where mischievous consequences are likely to follow.
Judgment should not be pronounced which might possibly lead to unseemly conflicts or
which might be disregarded with impunity. This court should offer no means by a decision
for any possible collision between it as the highest court in the Philippines and the
Philippine Senate as a branch of a coordinate department, or between the Court and the
Chief Executive or the Chief Executive and the Legislature.
On the merits of the controversy, we will only say this: The Organic Act authorizes the
Governor-General of the Philippine Islands to appoint two senators and nine
representatives to represent the non-Christian regions in the Philippine Legislature. These
senators and representatives "hold office until removed by the Governor-General."
(Organic Act, secs. 16, 17.) They may not be removed by the Philippine Legislature.
However, to the Senate and the House of Representatives, respectively, is granted the
power to "punish its members for disorderly behavior, and, with the concurrence of two-
thirds, expel an elective member." (Organic Act, sec. 18.) Either House may thus punish
an appointive member for disorderly behavior. Neither House may expel an appointive
member for any reason. As to whether the power to "suspend" is then included in the
power to "punish," a power granted to the two Houses of the Legislature by the
Constitution, or in the power to "remove," a power granted to the Governor-General by
the Constitution, it would appear that neither is the correct hypothesis. The Constitution
has purposely withheld from the two Houses of the Legislature and the Governor-General
alike the power to suspend an appointive member of the Legislature.
It is noteworthy that the Congress of the United States has not in all its long history
suspended a member. And the reason is obvious. Punishment by way of reprimand or fine
vindicates the outraged dignity of the House without depriving the constituency of
representation; expulsion, when permissible, likewise vindicates the honor of the
legislative body while giving to the constituency an opportunity to elect anew; but
suspension deprives the electoral district of representation without that district being
afforded any means by which to fill the vacancy. By suspension, the seat remains filed but
the occupant is silenced. Suspension for one year is equivalent to qualified expulsion or
removal.
It is beyond the power of any branch of the Government of the Philippine Islands to
exercise its functions in any other way than that prescribed by the Organic Law or by local
laws which conform to the Organic Law. This was, in effect, our holding in the
comparatively recent case of Concepcion vs. Paredes ([1921], 42 Phil., 599), when we had
under particular consideration a legislative attempt to deprive the Chief Executive of his
constitutional power of appointment. What was there announced is equally applicable to
the instant proceedings.
While what has just been said may be unnecessary for a correct decision, it is inserted so
that the vital question argued with so much ability may not pass entirely unnoticed, and so
that there may be at least an indication of the attitude of the court as a restraining force,
with respect to the checks and balances of government. The Supreme Court, out of
respect for the Upper House of a coordinate branch of the government, takes no
affirmative action. But the perfection of the entire system suggests the thought that no
action should be taken elsewhere which would constitute, or even seem to constitute,
disregard for the Constitution.
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Conceding therefore that the power of the Senate to punish its members for disorderly
behavior does not authorize it to suspend on appointive member from the exercise of his
office for one year, conceding what has been so well stated by the learned counsel for the
petitioner, conceding all this and more, yet the writ prayed for cannot issue, for the all-
conclusive reason that the Supreme Court does not possess the power of coercion to make
the Philippine Senate take any particular action. If it be said that this conclusion leaves the
petitioner without a remedy, the answer is that the judiciary is not the repository of all
wisdom and all power. It would hardly be becoming for the judiciary to assume the role of
either a credulous inquisitor, a querulous censor, or a jaunty knight, who passes down the
halls of legislation and of administration giving heed to those who have grievances against
the Legislature and the Chief Executive.
We rule that neither the Philippine Legislature nor a branch thereof can be directly
controlled in the exercise of their legislative powers by any judicial process. The court
accordingly lacks jurisdiction to consider the petition and the demurrer must be sustained.
As it is unlikely that the petition could be amended to state a cause of action, it must be
dismissed without costs. Such is the judgment of the court. So ordered.
G.R. No. L-17144 October 28, 1960
SERGIO OSMEÑA, JR., petitioner,
vs.
SALIPADA K. PENDATUN, LEON Z. GUINTO, JR., VICENTE L. PERALTA, FAUSTINO
TOBIA, LORENZO G. TEVES, JOPSE J. ROY, FAUSTINO DUGENIO, ANTONIO Y. DE
PIO, BENJAMIN T. LIGOT, PEDRO G. TRONO, FELIPE ABRIGO, FELIPE S. ABELEDA,
TECLA SAN ANDRES ZIGA, ANGEL B. FERNADEZ, and EUGENIO S. BALTAO, in their
capacity as members of the Special Committee created by House Resolution No.
59,respondents.
BENGZON, J.:
On July 14, 1960, Congressman Sergio Osmeña, Jr., submitted to this Court a verified
petition for "declaratory relief, certiorari and prohibition with preliminary injunction"
against Congressman Salapida K. Pendatun and fourteen other congressmen in their
capacity as members of the Special Committee created by House Resolution No. 59. He
asked for annulment of such Resolution on the ground of infringenment of his
parliamentary immunity; he also asked, principally, that said members of the special
committee be enjoined from proceeding in accordance with it, particularly the portion
authorizing them to require him to substantiate his charges against the President with the
admonition that if he failed to do so, he must show cause why the House should not
punish him.
The petition attached a copy of House Resolution No. 59, the pertinent portions of which
reads as follows:
WHEREAS, on the 23rd day of June, 1960 , the Honorable Sergio Osmeña, Jr.,
Member of the House of Representatives from the Second District of the province
of Cebu, took the floor of this chamber on the one hour privilege to deliver a
speech, entitled 'A Message to Garcia;
WHEREAS, in the course of said speech, the Congressman from the Second District
of Cebu stated the following:.
xxx xxx xxx
The people, Mr. President, have been hearing of ugly reports that under your
unpopular administration the free things they used to get from the government
are now for sale at premium prices. They say that even pardons are for sale, and
that regardless of the gravity or seriousness of a criminal case, the culprit can
always be bailed out forever from jail as long as he can come across with a
handsome dole. I am afraid, such an anomalous situation would reflect badly on
the kind of justice that your administration is dispensing. . . . .
WHEREAS, the charges of the gentleman from the Second District of Cebu, if made
maliciously or recklessly and without basis in truth and in fact, would constitute a
serious assault upon the dignity and prestige of the Office of 37 3 the President,
which is the one visible symbol of the sovereignty of the Filipino people, and would
expose said office to contempt and disrepute; . . . .
Resolved by the House of Representative, that a special committee of fifteen
Members to be appointed by the Speaker be, and the same hereby is, created to
investigate the truth of the charges against the President of the Philippines made
by Honorable Sergio Osmeña, Jr., in his privilege speech of June 223, 1960, and
for such purpose it is authorized to summon Honorable Sergio Osmeña, jr., to
appear before it to substantiate his charges, as well as to
issue subpoena and/or subpoena duces tecum to require the attendance of
witnesses and/or the production of pertinent papers before it, and if Honorable
Sergio Osmeña, Jr., fails to do so to require him to show cause why he should not
be punished by the House. The special committee shall submit to the House a
report of its findings and recommendations before the adjournment of the present
special session of the Congress of the Philippines.
In support of his request, Congressman Osmeña alleged; first, the Resolution violated his
constitutional absolute parliamentary immunity for speeches delivered in the House;
second, his words constituted no actionable conduct; and third, after his allegedly
objectionable speech and words, the House took up other business, and Rule XVII, sec. 7
of the Rules of House provides that if other business has intervened after the member had
uttered obnoxious words in debate, he shall not be held to answer therefor nor be subject
to censure by the House.
Although some members of the court expressed doubts of petitioner's cause of action and
the Court's jurisdiction, the majority decided to hear the matter further, and required
respondents to answer, without issuing any preliminary injunction. Evidently aware of such
circumstance with its implications, and pressed for time in view of the imminent
102 | P a g e
adjournment of the legislative session, the special committee continued to perform its
talk, and after giving Congressman Osmeña a chance to defend himself, submitted its
reports on July 18, 1960, finding said congressman guilty of serious disorderly behaviour;
and acting on such report, the House approved on the same day—before closing its
session—House Resolution No. 175, declaring him guilty as recommended, and suspending
him from office for fifteen months.
Thereafter, on July 19, 1960, the respondents (with the exception of Congressmen De Pio,
Abeleda, San Andres Ziga, Fernandez and Balatao)1 filed their answer, challenged the
jurisdiction of this Court to entertain the petition, defended the power of Congress to
discipline its members with suspension, upheld a House Resolution No. 175 and then
invited attention to the fact that Congress having ended its session on July 18, 1960, the
Committee—whose members are the sole respondents—had thereby ceased to exist.
There is no question that Congressman Osmeña, in a privilege speech delivered before the
House, made the serious imputations of bribery against the President which are quoted in
Resolution No. 59 and that he refused to produce before the House Committee created for
the purpose, evidence to substantiate such imputations. There is also no question that for
having made the imputations and for failing to produce evidence in support thereof, he
was, by resolution of the House, suspended from office for a period of fifteen months for
serious disorderly behaviour.
Resolution No. 175 states in part:
WHEREAS, the Special Committee created under and by virtue of Resolution No.
59, adopted on July 8, 1960, found Representative Sergio Osmeña, Jr., guilty of
serious disorderly behaviour for making without basis in truth and in fact,
scurrilous, malicious, reckless and irresponsible charges against the President of
the Philippines in his privilege speech of June 23, 1960; and
WHEREAS, the said charges are so vile in character that they affronted and
degraded the dignity of the House of Representative: Now, Therefore, be it
RESOLVED by the House of Representatives. That Representative Sergio Osmeña,
Jr., be, as he hereby is, declared guilty of serious disorderly behaviour; and . . .
As previously stated, Osmeña contended in his petition that: (1) the Constitution gave him
complete parliamentary immunity, and so, for words spoken in the House, he ought not to
be questioned; (20 that his speech constituted no disorderly behaviour for which he could
be punished; and (3) supposing he could be questioned and discipline therefor, the House
had lost the power to do so because it had taken up other business before approving
House Resolution No. 59. Now, he takes the additional position (4) that the House has no
power, under the Constitution, to suspend one of its members.
Section 15, Article VI of our Constitution provides that "for any speech or debate" in
Congress, the Senators or Members of the House of Representative "shall not be
questioned in any other place." This section was taken or is a copy of sec. 6, clause 1 of
Art. 1 of the Constitution of the United States. In that country, the provision has always
been understood to mean that although exempt from prosecution or civil actions for their
words uttered in Congress, the members of Congress may, nevertheless, be questioned in
Congress itself. Observe that "they shall not be questioned in any other place" than
Congress.
Furthermore, the Rules of the House which petitioner himself has invoked (Rule XVII, sec.
7), recognize the House's power to hold a member responsible "for words spoken in
debate."
Our Constitution enshrines parliamentary immunity which is a fundamental privilege
cherished in every legislative assembly of the democratic world. As old as the English
Parliament, its purpose "is to enable and encourage a representative of the public to
discharge his public trust with firmness and success" for "it is indispensably necessary that
he should enjoy the fullest liberty of speech, and that he should be protected from the
resentment of every one, however powerful, to whom exercise of that liberty may
occasion offense."2 Such immunity has come to this country from the practices of
Parliamentary as construed and applied by the Congress of the United States. Its extent
and application remain no longer in doubt in so far as related to the question before us. It
guarantees the legislator complete freedom of expression without fear of being made
responsible in criminal or civil actions before the courts or any other forum outside of the
Congressional Hall. But is does not protect him from responsibility before the legislative
body itself whenever his words and conduct are considered by the latter disorderly or
unbecoming a member thereof. In the United States Congress, Congressman Fernando
Wood of New York was censured for using the following language on the floor of the
House: "A monstrosity, a measure the most infamous of the many infamous acts of the
infamous Congress." (Hinds' Precedents, Vol. 2,. pp. 798-799). Two other congressmen
were censured for employing insulting words during debate. (2 Hinds' Precedents, 799-
801). In one case, a member of Congress was summoned to testify on a statement made
by him in debate, but invoked his parliamentary privilege. The Committee rejected his
plea. (3 Hinds' Precedents 123-124.)
For unparliamentary conduct, members of Parliament or of Congress have been, or could
be censured, committed to prison3, even expelled by the votes of their colleagues. The
appendix to this decision amply attest to the consensus of informed opinion regarding the
practice and the traditional power of legislative assemblies to take disciplinary action
against its members, including imprisonment, suspension or expulsion. It mentions one
instance of suspension of a legislator in a foreign country.
And to cite a local illustration, the Philippine Senate, in April 1949, suspended a senator
for one year.
Needless to add, the Rules of Philippine House of Representatives provide that the
parliamentary practices of the Congress of the United States shall apply in a
supplementary manner to its proceedings.
103 | P a g e
This brings up the third point of petitioner: the House may no longer take action against
me, he argues, because after my speech, and before approving Resolution No. 59, it had
taken up other business. Respondents answer that Resolution No. 59 was unanimously
approved by the House, that such approval amounted to a suspension of the House Rules,
which according to standard parliamentary practice may done by unanimous consent.
Granted, counters the petitioner, that the House may suspended the operation of its
Rules, it may not, however, affect past acts or renew its rights to take action which had
already lapsed.
The situation might thus be compared to laws4 extending the period of limitation of actions
and making them applicable to actions that had lapsed. The Supreme Court of the United
States has upheld such laws as against the contention that they impaired vested rights in
violation of the Fourteenth Amendment (Campbell vs. Holt, 115 U. S. 620). The states
hold divergent views. At any rate, court are subject to revocation modification or waiver at
the pleasure of the body adopting them."5 And it has been said that "Parliamentary rules
are merely procedural, and with their observancem, the courts have no concern. They may
be waived or disregarded by the legislative body." Consequently, "mere failure to conform
to parliamentary usage will not invalidate the action (taken by a deliberative body) when
the requisited number of members have agreed to a particular measure."6
The following is quoted from a reported decision of the Supreme court of Tennessee:
The rule here invoked is one of parliamentary procedure, and it is uniformly held
that it is within the power of all deliberative bodies to abolish, modify, or waive
their own rules of procedure, adopted for the orderly con duct of business, and as
security against hasty action. (Bennet vs. New Bedford, 110 Mass, 433;
Holt vs.Somerville, 127 Mass. 408, 411; City of Sadalia vs. Scott, 104 Mo. App.
595, 78 S. W. 276; Ex parte Mayor, etc., of Albany, 23 Wend. [N. Y.] 277, 280;
Wheelock vs. City of Lowell, 196 Mass. 220, 230. 81 N. e. 977, 124 Am. St. Rep.
543, 12 Ann. Cas. 1109; City of Corinth vs. Sharp, 107 Miss. 696, 65 So. 888;
McGraw vs.Whitson, 69 Iowa, 348, 28 N. W. 632; Tuell vs. Meacham Contracting
Co. 145 Ky. 181, 186, 140 S. W. Ann. Cas. 1913B, 802.) [Takenfrom the case of
Rutherford vs. City of Nashville, 78 south Western Reporter, p. 584.]
It may be noted in this connection, that in the case of Congressman Stanbery of Ohio, who
insulted the Speaker, for which Act a resolution of censure was presented, the House
approved the resolution, despite the argument that other business had intervened after
the objectionable remarks. (2 Hinds' Precedents pp. 799-800.)
On the question whether delivery of speeches attacking the Chief Executive constitutes
disorderly conduct for which Osmeña may be discipline, many arguments pro and con
have been advanced. We believe, however, that the House is the judge of what constitutes
disorderly behaviour, not only because the Constitution has conferred jurisdiction upon it,
but also because the matter depends mainly on factual circumstances of which the House
knows best but which can not be depicted in black and white for presentation to, and
adjudication by the Courts. For one thing, if this Court assumed the power to determine
whether Osmeña conduct constituted disorderly behaviour, it would thereby have assumed
appellate jurisdiction, which the Constitution never intended to confer upon a coordinate
branch of the Government. The theory of separation of powers fastidiously observed by
this Court, demands in such situation a prudent refusal to interfere. Each department, it
has been said, had exclusive cognizance of matters within its jurisdiction and is supreme
within its own sphere. (Angara vs. Electoral Commission, 63 Phil., 139.)
SEC. 200. Judicial Interference with Legislature. — The principle is well established
that the courts will not assume a jurisdiction in any case amount to an
interference by the judicial department with the legislature since each department
is equally independent within the power conferred upon it by the Constitution. . . .
.
The general rule has been applied in other cases to cause the courts to refuse to
intervene in what are exclusively legislative functions. Thus, where the stated
Senate is given the power to example a member, the court will not review its
action or revise even a most arbitrary or unfair decision. (11 Am. Jur., Const. Law,
sec. p. 902.) [Emphasis Ours.].
The above statement of American law merely abridged the landmark case of Clifford vs.
French.7 In 1905, several senators who had been expelled by the State Senate of
California for having taken a bribe, filed mandamus proceeding to compel reinstatement,
alleging the Senate had given them no hearing, nor a chance to make defense, besides
falsity of the charges of bribery. The Supreme Court of California declined to interfere ,
explaining in orthodox juristic language:
Under our form of government, the judicial department has no power to revise
even the most arbitrary and unfair action of the legislative department, or of
either house thereof, taking in pursuance of the power committed exclusively to
that department by the Constitution. It has been held by high authority that, even
in the absence of an express provision conferring the power, every legislative body
in which is vested the general legislative power of the state has the implied power
to expel a member for any cause which it may deem sufficient. In Hiss. vs. Barlett,
3 Gray 473, 63 Am. Dec. 768, the supreme court of Mass. says, in substance, that
this power is inherent in every legislative body; that it is necessary to the to
enable the body 'to perform its high functions, and is necessary to the safety of
the state;' 'That it is a power of self-protection, and that the legislative body must
necessarily be the sole judge of the exigency which may justify and require its
exercise. '. . . There is no provision authority courts to control, direct, supervise,
or forbid the exercise by either house of the power to expel a member. These
powers are functions of the legislative department and therefore, in the exercise of
the power this committed to it, the senate is supreme. An attempt by this court to
direct or control the legislature, or either house thereof, in the exercise of the
power, would be an attempt to exercise legislative functions, which it is expressly
forbidden to do.
104 | P a g e
We have underscored in the above quotation those lines which in our opinion emphasize
the principles controlling this litigation. Although referring to expulsion, they may as well
be applied to other disciplinary action. Their gist as applied to the case at bar: the House
has exclusive power; the courts have no jurisdiction to interfere.
Our refusal to intervene might impress some readers as subconscious hesitation due to
discovery of impermissible course of action in the legislative chamber. Nothing of that
sort: we merely refuse to disregard the allocation of constitutional functions which it is our
special duty to maintain. Indeed, in the interest of comity, we feel bound to state that in a
conscientious survey of governing principles and/or episodic illustrations, we found the
House of Representatives of the United States taking the position upon at least two
occasions, that personal attacks upon the Chief Executive constitute unparliamentary
conduct or breach of orders.8 And in several instances, it took action against
offenders, even after other business had been considered.9
Petitioner's principal argument against the House's power to suspend is the Alejandrino
precedent. In 1924, Senator Alejandrino was, by resolution of Senate, suspended from
office for 12 months because he had assaulted another member of the that Body or certain
phrases the latter had uttered in the course of a debate. The Senator applied to this Court
for reinstatement, challenging the validity of the resolution. Although this Court held that
in view of the separation of powers, it had no jurisdiction to compel the Senate to
reinstate petitioner, it nevertheless went on to say the Senate had no power to adopt the
resolution because suspension for 12 months amounted to removal, and the Jones Law
(under which the Senate was then functioning) gave the Senate no power to remove an
appointive member, like Senator Alejandrino. The Jones Law specifically provided that
"each house may punish its members for disorderly behaviour, and, with the concurrence
of two-thirds votes, expel an elective member (sec. 18). Note particularly the word
"elective."
The Jones Law, it mist be observed, empowered the Governor General to appoint "without
consent of the Senate and without restriction as to residence senators . . . who will, in his
opinion, best represent the Twelfth District." Alejandrino was one appointive Senator.
It is true, the opinion in that case contained an obiter dictum that "suspension deprives
the electoral district of representation without that district being afforded any means by
which to fill that vacancy." But that remark should be understood to refer particularly to
the appointive senator who was then the affected party and who was by the same Jones
Law charged with the duty to represent the Twelfth District and maybe the view of the
Government of the United States or of the Governor-General, who had appointed him.
It must be observed, however, that at that time the Legislature had only those power
which were granted to it by the Jones Law10; whereas now the Congress has the full
legislative powers and preprogatives of a sovereign nation, except as restricted by the
Constitution. In other words, in the Alejandrino case, the Court reached the conclusion
that the Jones Law did not give the Senate the power it then exercised—the power of
suspension for one year. Whereas now, as we find, the Congress has the inherent
legislative prerogative of suspension11 which the Constitution did not impair. In fact, as
already pointed out, the Philippine Senate suspended a Senator for 12 months in 1949.
The Legislative power of the Philippine Congress is plenary, subject only to such
limitations are found in the Republic's Constitution. So that any power deemed to
be legislative by usage or tradition, is necessarily possessed by the Philippine
Congress, unless the Constitution provides otherwise. (Vera vs. Avelino, 77 Phil.,
192, 212 .)
In any event, petitioner's argument as to the deprivation of the district's representation
can not be more weightly in the matter of suspension than in the case of imprisonment of
a legislator; yet deliberative bodies have the power in proper cases, to commit one of their
members to jail.12
Now come questions of procedure and jurisdiction. the petition intended to prevent the
Special Committee from acting tin pursuance of House Resolution No. 59. Because no
preliminary injunction had been issued, the Committee performed its task, reported to the
House, and the latter approved the suspension order. The House had closed it session, and
the Committee has ceased to exist as such. It would seem, therefore, the case should be
dismissed for having become moot or academic.13 Of course, there is nothing to prevent
petitioner from filing new pleadings to include all members of the House as respondents,
ask for reinstatement and thereby to present a justiciable cause. Most probable outcome
of such reformed suit, however, will be a pronouncement of lack of jurisdiction, as in Vera
vs. Avelino14 and Alejandrino vs. Qeuaon.15
At any rate, having perceived suitable solutions to the important questions of political law,
the Court thought it proper to express at this time its conclusions on such issues as were
deemed relevant and decisive.
ACCORDINGLY, the petition has to be, and is hereby dismissed. So ordered.
G.R. No. L-543 August 31, 1946
JOSE O. VERA, ET AL., petitioners,
vs.
JOSE A. AVELINO, ET AL., respondents.
BENGZON, J.:
Pursuant to a constitutional provision (section 4, Article X), the Commission on elections
submitted, last May, to the President and the Congress of the Philippines, its report on the
national elections held the preceding month, and, among other things, stated that, by
reason of certain specified acts of terrorism and violence in the Provinces of Pampanga,
Nueva Ecija, Bulacan and Tarlac, the voting in said region did not reflect the true and free
expression of the popular will.
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When the Senate convened on May 25, 1946, it proceeded with the selection of its
officers. Thereafter, in the course of the session, a resolution was approved referring to
the report and ordering that, pending the termination of the protest lodged against their
election, the herein petitioners, Jose O. Vera, Ramon Diokno and Jose E. Romero — who
had been included among the sixteen candidates for senator receiving the highest number
of votes, proclaimed by the Commission on Elections — shall not be sworn, nor seated, as
members of the chamber.
Pertinent parts of the resolution — called Pendatun — are these:
WHEREAS the Commission on Elections, charged under the Constitution with the
duty of insuring free, orderly, and honest elections in the Philippines, reported to
the President of the Philippines on May 23, 1946, that
". . . Reports also reached this Commission to the effect that in the
Provinces of Bulacan, Pampanga, Tarlac and Nueva Ecija, the secrecy of
the ballot was actually violated; the armed bands saw to it that their
candidates were voted for; and that the great majority of the voters, thus
coerced or intimadated, suffered from a paralysis of judgement in the
matter of exercising the right of suffrage; considering all those acts of
terrorism, violence and intimidation in connection with elections which are
more or less general in the Provinces of Pampanga, Tarlac, Bulacan and
Nueva Ecija, this Commission believes that the election in the provinces
aforesaid did not reflect the true and free expression of the popular will. It
should be stated, however, that the Commission is without jurisdiction, to
determine whether or not the votes cast in the said provinces which,
according to these reports have been cast under the influence of threats or
violence, are valid or invalid. . . ."
WHEREAS, the minority report of the Hon. Vicente de Vera, member of the
Commission on Elections, says among other things, that "we know that as a result
of this chaotic condition, many residents of the four provinces have voluntarily
banished themselves from their home towns in order not to be subjected to the
prevailing oppression and to avoid being victimized or losing their lives"; and that
after the election dead bodies had been found with notes attached to their necks,
reading, "Bomoto kami kay Roxas" (we voted for Roxas);
WHEREAS the same Judge De Vera says in his minority report that in the four
Provinces of Pampanga, Tarlac, Bulacan and Nueva Ecija, the worst terrorism
reigned during and after the election, and that if the elections held in the aforesaid
provinces were annulled as demanded by the circumstances mentioned in the
report of the Commission, Jose O. Vera, Ramon Diokno, and Jose Romero, would
not and could not have been declared elected;
WHEREAS the terrorism resorted to by the lawless elements in the four provinces
mentioned above in order to insure the election of the candidates of the
Conservative wing of the Nationalist Party is of public knowledge and that such
terrorism continues to this day; that before the elections Jose O. Vera himself
declared as campaign Manager of the Osmeña faction that he was sorry if
Presidential Candidate Manuel A. Roxas could not campaign in the Huk provinces
because his life would be endangered; and that because of the constant murders
of his candidates and leaders, Presidential Candidate Roxas found it necessary to
appeal to American High Commissioner Paul V. McNutt for protection, which appeal
American High Commissioner personallyreferred to President Sergio Osme_¤_a for
appropriate action, and the Presidentin turn ordered the Secretary of the existence
and reign of such terrorism;
WHEREAS the Philippines, a Republic State, embracing the principles ofdemocracy,
must condem all acts that seek to defeat the popular will;
WHEREAS it is essential, in order to maintain alive the respect fordemocratic
institutions among our people, that no man or group of men be permitted to profit
from the results of an election held under coercion, in violation of law, and
contrary to the principle of freedom of choice which should underlie all elections
under the Constitution;
WHEREAS protests against the election of Jose O. Vega, Ramon Diokno, and Jose
Romero, have been filed with the electoral Tribunal of the Senate of the Philippines
on the basis of the findings of the Commission on Elections above quoted;
NOW, THEREFORE, be it resolved by the Senate of the Philippines in session
assembled, as it hereby resolves, to defer the administration of oath and the
sitting of Jose O. Vera, Ramon Diokno, and Jose Romero, pending the hearing and
decision on the protests lodged against their elections, wherein the terrorism
averred in the report of the Commission on Elections and in the report of the
Provost Marshal constitutes the ground of said protests and will therefore be the
subject of investigation and determination.
Petitioners immediately instituted this action against their colleagues responsible for the
resolution. They pray for an order annulling it, and compelling respondents to permit them
to occupy their seats, and to exercise their senatorial prerogatives.
In their pleadings, respondents traverse the jurisdiction of this court, and assert the
validity of the Pendatun Resolution.
The issues, few and clear-cut, were thoroughly discussed at the extended oral argument
and in comprehensive memoranda submitted by both sides.
A.—NO JURISDICTION
Way back in 1924, Senator Jose Alejandrino assaulted a fellow-member in the Philippine
Senate. That body, after investigation, adopted a resolution, suspending him from office
for one year. He applied here for mandamus and injunction to nullify the suspension and
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to require his colleagues to reinstate him. This court believed the suspension was legally
wrong, because, as senator appointed by the Governor-General, he could not be
disciplined by the Philippine Senate; but it denied the prayer for relief, mainly upon the
theory of the separation of the three powers, Executive, Legislative and Judicial.
(Alejandrino vs. Quezon, 46 Phil., 81.) Said the decision:
. . . Mandamus will not lie against the legislative body, its members, or its officers,
to compel the performance of duties purely legislative in their character which
therefore pertain to their legislative functions and over which they have exclusive
control. The courts cannot dictate action in this respect without a gross usurpation
of power. So it has been held that where a member has been expelled by the
legislative body, the courts have no power, irrespective of whether the expulsion
was right or wrong, to issue a mandate to compel his reinstatement. (Code of civil
Procedure, section 222, 515; 18 R.C. L., 186, 187; Cooley, Constitutional
Limitations, 190; French vs. Senate [1905], 146 Cal; Hiss vs. Bartlett [1855], 69
Mass., 468; Ex parte Echols [1886], 39 Ala., 698; State vs. Bolte [1889], 151 Mo.,
362; De Diego vs. House of Delegates [1904], 5 Porto Rico, 235; Greenwood
Cemetery Land Co. vs. Routt [1892], 17 Colo., 156; State ex rel. Crammer vs.
Thorson [1896], 33 L. R. A., ex rel. Bruce vs. Dunne [1913], 258 Ill., 441;
People ex rel. La Chicote vs. Best [1907], 187 N. Y., 1; Abueva vs. Wood [1924],
45 Phil., 612.) (Supra, pp. 88, 89.)
. . . Under our form of government the judicial department has no power to revise
even the most arbitrary and unfair action of the legislative department, or of
either house thereof, taken in pursuance of the power committed exclusively to
that department by the constitution. (Supra, p. 93)
No court has ever held and we apprehend no court will ever hold that it possesses
the power to direct the Chief Executive or the Legislature or a branch thereof to
take any particular action. If a court should ever be so rash as to thus trench on
the domain of either of the other departments, it will be the end of popular
government as we know it in democracies. (Supra, p. 94.)
Conceding therefore that the power of the Senate to punish its members for
disorderly behavior does not authorize it to suspend an appointive member from
the exercise of his office for one year, conceding what has been so well stated by
the learned counsel for the petitioner, conceding all this and more, yet the writ
prayed for cannot issue, for the all-conclusive reason that the Supreme Court does
not possess the power of coercion to make the Philippine Senate take any
particular action. . . . (Supra, p. 97.)
The same hands-off policy had been previously followed in Severino vs. Governor-General
and Provincial Board of Occidental Negros (16 Phil., 366) and Abueva vs. Wood (45 Phil.,
612)
At this point we could pretend to erudition by tracing the origin, development and various
applications of theory of separation of powers, transcribing herein whole paragraphs from
adjudicated cases to swell the pages of judicial output. Yet the temptation must be
resisted, and the parties spared a stiff dose of juris prudential lore about a principle,
which, after all, is the first fundamental imparted to every student of Constitutional Law.
Not that a passable excuse would be lacking for such a dissertation. The advent of the
Republic, and the consequent finality of our views on constitutional issues, may call for a
definition of concepts and attitudes. But surely, there will be time enough, as cases come
up for adjudication.
Returning to the instant litigation, it presents no more than the questions, whether the
Alejandro doctrine still obtains, and whether the admitted facts disclose any features
justifying departure therefrom.
When the Commonwealth Constitution was approved in 1935, the existence of three
coordinate, co-equal and co-important branches of the government was ratified and
confirmed. That Organic Act contained some innovations which established additional
exceptions to the well-known separation of powers; for instance, the creation of the
Electoral Tribunal wherein Justices of the Supreme Court participate in the decision of
congressional election protests, the grant of rule-making power to the Supreme Court,
etc.; but in the main, the independence of one power from the other was maintained. And
the Convention — composed mostly of lawyers (143 out of a total of 202 members), fully
acquainted with the Abueva, Alejandrino and Severino precedents — did not choose to
modify their constitutional doctrine, even as it altered some fundamental tenets
theretofore well established.1
However, it is alleged that, in 1936, Angara vs. Electoral Commission (63 Phil., 139),
modified the aforesaid ruling. We do not agree. There is no pronouncement in the latter
decision, making specific reference to the Alejandrino incident regarding our power — or
lack of it — to interfere with the functions of the Senate. And three years later, in 1939,
the same Justice Laurel, who had penned it, cited Alejandrino vs. Quezon as a binding
authority of the separation of powers. (Planas vs. Gil, 67 Phil., 62.) It must be stressed
that, in the Angara controversy, no legislative body or person was a litigant before the
court, and whatever obiter dicta, or general expressions, may therein found can not
change the ultimate circumstance that no directive was issued against a branch of the
Legislature or any member thereof.2 This Court, in that case, did not require the National
Assembly or any assemblyman to do any particular act. It only found it "has jurisdiction
over the Electoral Commission." (Supra, 63 Phil., 161.)
That this court in the Angara litigation made declarations, nullifying a resolution of the
National Assembly, is not decisive. In proper cases this court may annul any Legislative
enactment that fails to observe the constitutional limitations. That is a power conceded to
the judiciary since Chief Justice Marshall penned Marbury vs. Madison in 1803. Its
foundation is explained by Justice Sutherland in the Minimum Wage Case (261 U. S.,
544).Said the Court:
. . . The Constitution, by its own terms, is the supreme law of the land, emanating
from the people, the repository of ultimate sovereignty under our form of
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 government. A congressional statute, on the other hand, is the act of an agency of
this sovereign authority, and if it conflicts with the Constitution, must fall; for that
which is not supreme must yield to that which is. To hold it invalid (if it be invalid)
is a plain exercise of the judicial power, — that power vested in courts to enable
them to administer justice according to law. From the authority to ascertain and
determine the law in a given case there necessa ruly results, in case of conflict,
the duty to declare and enforce the rule of the supreme law and reject that of an
inferior act of legislation which, transcending the Constitution, is no effect, and
binding on no one. This is not the exercise of a substantive power to review and
nullify acts of Congress, for such no substantive power exists. It is simply a
necessary concomitant of the power to hear and dispose of a case or controversy
properly before the court, to the determination of which must be brought the test
and measure of the law.
And the power is now expressly recognized by our Organic Act. (See sections 2 and 10.
Article VIII.)
But we must emphasize, the power is to be exercised in proper cases, with the appropriate
parties.
It must be conceded that the acts of the Chief executive performed within the
limits of his jurisdiction are his official acts and courts will neither direct nor
restrain executive action in such cases. The rule is non-interference. But from this
legal premise, it does not necessarily follow that we are precluded from making an
inquiry into the validity or constitutionality of his acts when these are properly
challenged in an appropriate legal proceeding. . . . In the present case, the
President is not a party to the proceeding. He is neither compelled nor restrained
to actin a particular way. . . . This court, therefore, has jurisdiction over the
instant proceedings and will accordingly proceed to determine the merits of the
present controversy." (Planas vs. Gil., 67 Phil., 62, 73, 74, 76.) (Emphasis ours.)
(See also Lopez vs. De los Reyes, 55 Phil., 170.)
More about the Angara precedent: The defendant there was only the Electoral Commission
which was "not a separate department of the Government" (Vol. 63,p. 160), and exercised
powers "judicial in nature." (Supra, p. 184) Hence, against our authority, there was no
objection based on the independence and separation of the three co-equal departments of
Government. Besides, this court said no more than that, there being a conflict
of jurisdiction between two constitutional bodies, it could not decline to take cognizance of
the controversy to determine the "character, scope and extent" of their respective
constitutional spheres of action. Here, there is actually no antagonism between the
Electoral Tribunal of the Senate and the Senate itself, for it is not suggested has adopted a
rule contradicting the Pendatun Resolution. Consequently, there is no occasion for our
intervention. Such conflict of jurisdiction, plus the participation of the Senate Electoral
Tribunal are essential ingredients to make the facts of this case fit the mold of the Angara
doctrine.
Now, under the principles enunciated in the Alejandrino case, may this petition be
entertained? The answer must naturally be in the negative. Granting that the
postponement of the administration of the oath amounts to suspension of the petitioners
from their office, and conceding arguendo that such suspension is beyond the power of the
respondents, who in effect are and acted as the Philippine Senate (Alejandrino vs. Quezon,
46 Phil., 83, 88),this petition should be denied. As was explained in the Alejandrino case,
we could not order one branch of the Legislature to reinstate a member thereof. To do so
would be to establish judicial predominance, and to upset the classic pattern of checks and
balances wisely woven into our institutional setup.
Adherence to established principle should generally be our guiding criterion, if we are to
escape the criticism voiced once by Bryce in American Commonwealth thus:
The Supreme Court has changed its color i. e., its temper and tendencies, from
time to time according to the political proclivities of the men who composed it. . . .
Their action flowed naturally from the habits of thought they had formed before
their accession to the bench and from the sympathy they could not feel for the
doctrine on whose behalf they had contended. (The Annals of the American
Academy of Political and Social Science, May, 1936, p. 50.)
Needless to add, any order we may issue in this case should, according to the rules, be
enforceable by contempt proceedings. If the respondents should disobey our order, can we
punish them for contempt? If we do, are we not thereby destroying the independence, and
the equal importance to which legislative bodies are entitled under the Constitution?
Let us not be overly influenced by the plea that for every wrong there is are medy, and
that the judiciary should stand ready to afford relief. There are undoubtedly many wrongs
the judicature may not correct, for instance, those involving political questions. Numerous
decisions are quoted and summarized under this heading in 16 Corpus Juris Secundum,
section 145.
Let us likewise disabuse our minds from the notion that the judiciary is the repository of
remedies for all political and social ills. We should not forget that the Constitution had
judiciously allocated the powers of government to three distinct and separate
compartments; and that judicial interpretation has tended to the preservation of the
dependence of the three, and a zealous regard of the prerogatives of each, knowing full
well that one is not the guardian of the others and that, for official wrong-doing, each may
be brought to account, either by impeachment, trial or by the ballot box.
The extreme case has been described wherein a legislative chamber, without any reason
whatsoever, decrees by resolution the incarceration, for years, of a citizen. And the
rhetorical question is confidently formulated. Will this man be denied relief by the courts?
Of course not: He may successfully apply for habeas corpus, alleging the nullity of the
resolution and claiming for release. But then, the defendant shall be the officer or person,
holding him in custody, and the question therein will be the validity or invalidity of
resolution. That was done in Lopez vs. De los Reyes, supra. (See also Kilbourn vs.
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Thompson, 103 U.S. 168; 26 Law. ed., 377, p. 391.) Courts will interfere, because the
question is not a political one, the "liberty of citizen" being involved (Kilbourn vs.
Thompson, supra) and the act will clearly beyond the bounds of the legislative power,
amounting to usurpation of the privileges of the courts, the usurpation being clear,
palpable and oppressive and the infringement of the Constitution truly real. (See 16
C.J.S., p. 44.)
Nevertheless, suppose for the moment that we have jurisdiction:
B.—PROHIBITION DOES NOT LIE
Petitioners pray for a writ of prohibition. Under the law, prohibition refers only to
proceedings of any tribunal, corporation, board, or person, exercising
functions judicial or ministerial. (Rule 67, section 2, Rules of Court.) As the respondents do
not exercise such kind of functions, theirs being legislative, it is clear the dispute falls
beyond the scope of such special remedy.
C.—SENATE HAS NOT EXCEEDED POWERS
Again let us suppose the question lies within the limits of prohibition and of our
jurisdiction.
Before the organization of the Commonwealth and the promulgation of the Constitution,
each House of the Philippine Legislature exercised the power to defer oath-taking of any
member against whom a protest had been lodged, whenever in its discretion such
suspension was necessary, before the final decision of the contest. The cases of Senator
Fuentebella and Representative Rafols are known instances of such suspension. The
discussions in the constitutional Convention showed that instead of transferring to the
Electoral Commission all the powers of the House or Senate as "the sole judge of the
election, returns, and qualifications of the members of the National Assembly," it was
given only jurisdiction over "all contests" relating to the election, etc. (Aruego, The
Framing of the Philippine Constitution, Vol. I, p. 271.) The proceedings in the
Constitutional Convention on this subject are illuminating:
It became gradually apparent in the course of the debates that the Convention
was evenly divided on the proposition of creating the Electoral Commission with
the membership and powers set forth in the draft. It was growing evident, too,
that the opposition to the Electoral Commission was due to rather inclusive power
of that body to judge not only of cases contesting the election of the members of
the National Assembly, but also of their elections, returns, and qualifications.
Many of the delegates wanted to be definitely informed of the scope of the powers of the
Electoral Commission as defined in the draft before determining their final decision; for if
the draft meant to confer upon the Electoral Commission the inclusive power to pass upon
the elections, returns, and qualifications — contested or not — of the members of the
National Assembly, they were more inclined to vote against the Electoral Commission. In
an attempt to seek this clarification, the following interpretations took place:
Delegate Labrador.—Does not the gentleman from Capiz believe that unless this
power is granted to the assembly, the assembly on its own motion does not have
the right to contest the election and qualification of its members?
Delegate Roxas.—I have no doubt that the gentleman is right. If this right is
retained, as it is, even if two-thirds of the assembly believe that a member has not
the qualifications provided by law, they cannot remove him from that reason.
x
In the course of the heated debates, with the growing restlessness on the part of
the Convention, President Recto suspended the session in order to find out if it
was possible to arrive at a compromise plan to meet the objection.
When the session was resumed, a compromise plan was submitted in the form of
an amendment presented by Delegates Francisco, Ventura, Lim, Vinzons, Rafols,
Mumar, and others, limiting the power of the Electoral Commission to the judging
of all cases contesting elections, returns, and qualifications of members of the
National Assembly. Explaining the difference between the amendment thus
proposed and the provision of the draft, Delegate Roxas, upon the request of
President Recto, said:
The difference, Mr. President, consists only in obviating the objection pointed out
by various delegates to the effect that the first clause of the draft which states
"The election, returns, and qualifications of members of the National Assembly"
seems to give to the Electoral commission the power to determine also the
election of the members who have not been protested. And in order to obviate
that difficulty, we believe that the amendment is right in that sense . . . that is, if
we amend the draft so that it should read as follows: "All cases contesting the
election, etc.", so that the judges of the Electoral Commission will limit themselves
only to cases in which there has been a protest against the returns.
The limitation to the powers of the Electoral Commission proposed in the
compromise amendment did much to win in favor of the Electoral Commission
many of its opponents; so that when the amendment presented by Delegate
Labrador and others to retain in the Constitution the power of the lawmaking body
to be the sole judge of the elections, returns, and qualifications of its members
was put to a nominal vote, it was defeated by 98 negative votes against 56
affirmative votes.
With the defeat of the Labrador amendment, the provision of the draft creating the
Electoral Commission, as modified by the compromise amendment, was
consequently approved.
"All cases contesting the elections, returns and qualifications of the members of
the National Assembly shall be judged by an electoral commission, composed of
three members elected by the party having the largest number of votes in the
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 National Assembly, three elected by the members of the party having the second
largest number of votes, and three justices of the Supreme Court designated by
the Chief, the Commission to be presided over by one of said justices."
In the special committee on style, the provision was amended so that the
Chairman of the Commission should be the senior Justice in the Commission, and
so that the Commission was to be the sole judge of the election, returns, and
qualifications of the members of the National Assembly. As it was then amended,
the provision read:
"There shall be an Electoral Commission composed of three Justices of the
Supreme court designated by the Chief Justice, and of six Members chosen
by the National Assembly, three of whom shall be nominated by the party
having the largest number of votes, and three by the party having the
second largest number of votes therein. The senior Justice in the
Commission shall be its Chairman. The Electoral Commission shall be the
sole judge of the election, returns, and qualifications of the Members of
the National Assembly."
The report of the special committee on style on the power of the Commission was
opposed on the floor of the Convention by Delegate Confesor, who insisted that
the Electoral Commission should limit itself to judging only of all contests relating
to the elections, returns, and qualifications of the members of the National
Assembly. The draft was amended accordingly by the Convention.
As it was finally adopted by the Convention, the provision read:
There shall be an Electoral Commission . . . The Electoral Commission shall be the
sole judge of all contests relating to the election, returns, and qualifications of the
Members of the National Assembly. (Aruego, The Framing of the Philippine
Constitution, Vol. I, pp. 267, 269, 270, 271 and 272.).
Delegate Roxas rightly opined that "if this draft is retained" the Assembly would have no
power over election and qualifications of its members; because all the powers are by the
draft vested in the Commission.
The Convention, however, bent on circumscribing the latter's authority to "contests"
relating to the election, etc. altered the draft. The Convention did not intend to give it all
the functions of the Assembly on the subject of election and qualifications of its members.
The distinction is not without a difference. "As used in constitutional provisions", election
contest "relates only to statutory contests in which the contestant seeks not only to oust
the intruder, but also to have himself inducted into the office."(Laurel on Elections, Second
Edition, p. 250; 20 C.J., 58.)
One concrete example will serve to illustrate the remaining power in either House of
Congress: A man is elected by a congressional district who had previously served ten
years in Bilibid Prison for estafa. As he had no opponent, no protest is filed. And the
Electoral Tribunal has no jurisdiction, because there is no election contest. (20 C.J.,
58, supra.) When informed of the fact, may not the House, motu propio postpone his
induction? May not the House suspend, investigate and thereafter exclude him?3 It must
be observed that when a member of the House raises a question as to the qualifications of
another, an "election contest" does not thereby ensue, because the former does not seek
to be substituted for the latter.
So that, if not all the powers regarding the election, returns, and qualifications of
members was withdrawn by the Constitution from the Congress; and if, as admitted by
petitioners themselves at the oral argument, the power to defer the oath-taking, until the
contests is adjudged, does not belong to the corresponding Electoral Tribunal, then it must
be held that the House or Senate still retains such authority, for it has not been
transferred to, nor assumed by, the Electoral Tribunal. And this result flows, whether we
believe that such power (to delay induction) stemmed from the (former) privilege of either
House to be judge of the election, returns, and qualifications of the members thereof, or
whether we hold it to be inherent to every legislative body as a measure of self-
preservation.
It is customary that when a number of persons come together to form a legislative body,
". . . the first organization must be temporary, and if the law does not designate the
person who shall preside over such temporary organization, the persons assembled and
claiming to be members may select one of their number for that purpose. The next step is
to ascertain in some convenient way the names of the person who are, by reason of
holding the proper credentials, prima facie entitled to seats, and therefore entitled to take
part in permanent organization of the body. In the absence of any statutory or other
regulation upon this subject, a committee on credentials is usually appointed, to whom all
credentials to be entitled to seats. . . . (Laurel on Elections, Second Edition, pp. 356, 357,
quoting McCrary on Elections.)
Therefore, independently of constitutional or statutory grant, the Senate has, under
parliamentary practice, the power to inquire into the credentials of any member and the
latter's right to participate in its deliberations. As we have seen, the assignment by the
constitution of the Electoral Tribunal does not actually negative that power — provided the
Senate does not cross the boundary line, deciding an election contest against the member.
Which the respondents at bar never attempted to do. Precisely, their resolution
recognized, and did not impair, the jurisdiction of the Electoral Tribunal to decide the
contest. To test whether the resolution trenched on the territory of the last named agency
let ask the question: May the Electoral Tribunal of the Senate order that Body to defer the
admission of any member whose election has been contested? Obviously not. Then it must
be conceded that the passage of the disputed resolution meant no invasion of the former's
realm.
At this juncture the error will be shown of the contention that the Senate has not this
privilege "as a residuary power". Such contention is premised on the proposition that the
Houses of the Philippine Congress possess only such powers as are expressly or impliedly
granted by the Constitution. And an American decision is quoted on the powers of the
United States Congress. The mistake is due to the failure to differentiate between the
nature of legislative power under the Constitution of the United States, and legislative
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power under the State Constitutions and the Constitution of the Commonwealth (now the
Republic). It must be observed that the Constitution of the United States contains only
a grant or delegation of legislative powers to the Federal Government, whereas, the other
Constitutions, like the Constitution of the Commonwealth (now the Republic), are
limits upon the plenary powers of legislation of the Government. The legislative power of
the United States Congress is confined to the subject on which it is permitted to act by the
Federal constitution. (Dorr vs. United States, 195 U. S., 140; Martin vs. Hunter, 1 Wheat.,
326; McCullock vs. Maryland, 4 Wheat., 405; United States vs. Cruikshank, 92 U.S., 551.)
The legislative power of the Philippine Congress is plenary, subject only to such
limitations, as are found in the Republic's Constitution. So that any power, deemed to be
legislative by usage and tradition, is necessarily possessed by the Philippine Congress,
unless the Organic Act has lodged it elsewhere.
Another line of approach. The Senate, as a branch of the legislative department, had the
constitutional power to adopt rules for its proceedings(section 10 [3], Article VI of the
Constitution), and by legislative practice it is conceded the power to promulgate such
orders as may be necessary to maintain its prestige and to preserve its dignity.4 We are
advised by the respondents that, after weighing the propriety or impropriety of the step,
the Senate, in the exercise of its authority and discretion and of its inherent power of self-
preservation, resolved to defer the administration of oath and the sitting of the petitioners
pending determination of the contest. It is not clear that the measure had no reasonable
connection with the ends in view, and neither does it palpably transcend the powers of the
public deliverative body. On the contrary, there are reasons to believe it was prompted by
the dictates of ordinary caution, or of public policy. For, if, as reported by the
corresponding constitutional agency, concededly well-posted on the matter by reason of
its official duties, the elections held in the Provinces of Pampanga, Bulacan, Tarlac, and
Nueva Ecija were so tainted with acts of violence and intimidation, that the result was not
the legitimate expression of the voters' choice, the Senate made no grievous mistake in
foreseeing the probability that, upon proof of such widespread lawlessness, the Electoral
Tribunal would annull the returns in that region (see Gardiner vs. Romulo, 26 Phil., 521;
Laurel, Elections [2d ed.], p. 488 et seq.), and declare herein petitioners not entitled to
seats in the Senate. Consequently, to avoid the undesirable result flowing from the
participation of disqualified members in its deliberations, it was prudent for it to defer the
sitting of the respondents. True, they may have no direct connection with the acts of
intimidation; yet the votes may be annulled just the same, and if that happens, petitioners
would not among the sixteen senators elected. Nor was it far-fetched for the Senate to
consider that "in order to maintain alive the respect for democratic institutions among our
people, no man or group of men (should) be permitted to profit from the results of an
election held under coercion, in violation of law and contrary to the principle of freedom of
choice which should underlie all elections under the Constitution." (Exhibit A of petitioners'
complaint.)
a. Justices in the Electoral Tribunals
During our deliberations, it was remarked that several justices subscribing the majority
opinion, belong to the electoral tribunals wherein protests connected with the Central
Luzon polls await investigation. Mulling over this, we experience no qualmish feelings
about the coincidence. Their designation to the electoral tribunals deducted not a whit
from their functions as members of this Supreme Court, and did not disqualify them in this
litigation. Nor will their deliverances here at on a given question operate to prevent them
from voting in the electoral forum on identical questions; because the Constitution,
establishing no incompatibility between the two roles, naturally did not contemplate, nor
want, justices opining one way here, and thereafter holding otherwise, pari materia, in the
electoral tribunals, or vice-versa.
Anyhow, these should be no diversity of thought in a democratic country, at least, on the
legal effects of the alleged rampant lawlessness, root and basis of the Pendatun
Resolution.
However, it must be observed and emphasized, herein is no definite pronouncement that
terrorism and violence actually prevailed in the district to such extent that the result was
not the expression of the free will of the electorate. Such issue was not tendered in these
proceedings. It hinges upon proof to be produced by protestants and protestees at the
hearing of the respective contests.
b. Doubt and presumption.
After all is said or written, the most that may be conceded to the industry of petitioners'
counsel is that the Senate power, or lack of power, to approve the resolution is not
entirely clear. We should, therefore, indulge the presumption that official duty has been
performed regularly, (Rule 123, section 69, Rule of Court), and in the right manner:
It is a general principle to presume that public officers act correctly until the
contrary is shown. United States vs. Weed, 5 Wall., 62.
It will be presumed, unless the contrary be shown, that a public officer acted in
accordance with the law and his instructions. Moral y Gonzales vs. Ross
(Gonzales vs. Ross), 120 U.S., 605; 7 Sup. Ct. Rep., 705.
Officers charged with the performance of a public duty are presumed to perform it
correctly. Quinlan vs. Greene Country, 205 U.S., 410; 27 Sup. Ct. Rep., 505.
(United State Supreme Court Reports Digest, Vol. 5, p. 3188.)
It is presumed that the legislature has acted within its constitutional powers. (See
cases cited at p. 257, 16 C.J.S., note 1.)
And should there be further doubt, by all the maxims of prudence, left alone comity, we
should heed the off-limits sign at the Congressional Hall, and check the impulse to rush in
to set matters aright — firm in the belief that if a political fraud has been accomplished, as
petitioners aver, the sovereign people, ultimately the offended party, will render the fitting
verdict — at the polling precints.
c. Membership in the Constitutional Convention
The theory has been proposed — modesty aside — that the dissenting members of this
Court who were delegates to the Constitutional Convention and were "co-authors of the
Constitution" "are in a better position to interpret" that same Constitution in this particular
litigation.
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There is no doubt that their properly recorded utterances during the debates and
proceedings of the Convention deserve weight, like those of any other delegate therein.
Note, however, that the proceedings of the Convention "are less conclusive of the power
construction of the instrument than are legislative proceedings of the proper construction
of a statute; since in the latter case it is the intent of the legislature we seek, while in the
former we are endeavoring to arrive at the intent of the people through the discussions
and deliberations of their representatives. (Willoughby on the Constitution, Vol. I, pp. 54,
55.)
Their writings (of the delegates) commenting or explaining that instrument, published
shortly thereafter, may, like those of Hamilton, Madison and Jayin The Federalist — here in
the Philippines, the book of Delegate Aruego, supra, and of others — have persuasive
force. (Op. cit., p. 55.)
But their personal opinion on the matter at issue expressed during our deliberations stand
on a different footing: If based on a "fact" known to them, but not duly established or
judicially cognizable, it is immaterial, and their brethren are not expected to take their
word for it, to the prejudice of the party adversely affected, who had no chance of
rebuttal. If on a matter of legal hermeneutics, their conclusions may not, simply on
account of membership in the Convention, be a shade better, in the eyes of the law. There
is the word "deference" to be sure. But deference is a compliment spontaneously to be
paid — never a tribute to be demanded.
And if we should (without intending any disparagement) compare the Constitution's
enactment to a drama on the stage or in actual life, we would realize that intelligent
spectators or readres often know as much, if not more, about the real meanings, effects or
tendency is of the event, or incidents thereof, as some of the actors themselves, who
sometimes become so absorbed in fulfilling their emotional roles that they fail to watch the
other scenes or to meditate on the larger aspects of the whole performance, or what is
worse, become so infatuated with their lines as to construe the entire story according to
their prejudices or frustrations. Perspective and disinterestedness help certainly a lot in
examining actions and occurrences.
Come to think of it, under the theory thus proposed, Marshall and Holmes (names
venerated by those who have devoted a sizable portion of their professionals lives to
analyzing or solving constitutional problems and developments) were not so authoritative
after all in expounding the United States Constitution — because they were not members
of the Federal Convention that framed it!
D.—ALLEGED DUTY OF RESPONDENTS
Quoting section 12 of Commonwealth Act No. 725, counsel for petitioners assert that it
was respondents' duty legally inescapable, to permit petitioners to assume office and take
part in the current regular session. The section reads partly:
The candidates for Member of the House of Representatives and those for
Senators who have been proclaimed elected by the respective Board of Canvassers
and the Commission on Elections shall assume office and shall hold regular session
for the year nineteen hundred and forty-six on May twenty-five, nineteen hundred
and forty-six. (Section 12, Commonwealth Act. No. 725.)
We have carefully considered the argument. We opine that, as contended by the Solicitor-
General, this provision is addressed to the individual member of Congress, imposing on
him the obligation to come to Manila, and join his colleagues in regular session. However,
it does not imply that if, for any reason, he is disqualified, the House is powerless to
postpone his admission. Suppose that after elections a member is finally convicted of
treason. May not the House refuse him outright admission, pending an investigation (by it
or the Electoral Tribunal as the case may be) as to his privilege to sit there? Granting the
right to admission as the counterpart of the duty to assume office by virtue of said section
12; we must nevertheless allow that such rights would not be peremptory whenever it
contacts other rights of equal or superior force. To illustrate: if the law provided that all
children, seven years or more "shall go to school", it can not reasonably be inferred that
school authorities are bound to accept every seven-year boy, even if he refuses to pay
fees, or to present the certificates required by school regulations.
Furthermore, it would not be erroneous to maintain that any right spelled out of section 12
must logically be limited to those candidates whose proclamation is clear, unconditional
and unclouded, and that such standard is not met by the petitioners, because in the very
document attesting to their election one member of the Commission on Elections
demurred to the non-exclusion of the votes in Central Luzon, calling attention to the
reported reign of terror and violence in that region, and virtually objecting to the
certification of herein petitioners. To be sure, it was the beclouded condition of petitioner's
credential (certificate of canvass) that partly prompted the Senate to enact the
precautionary measure herein complained of. And finding no phrase or sentence in the
Constitution expressly or impliedly outlawing the step taken by that legislative body, we
should be, and we are, reluctant to intervene.
Indeed, had the Senate been officially informed that the inclusion of petitioners' name in
the Commission's certificate had been made at the point of a gangster's automatic, none
will deny the appositeness of the postponement of their induction, pending an inquiry by
the corresponding authorities. Yet the difference between such situation and the instant
litigation is one of degree, broad and wide perhaps, but not altering the dominant legal
principle.
In answer to the suggestions as to abuse of the power it should be stated that the mere
possibility of abuse is no conclusive argument against the existence of the power, of the
power, for the simple reason that every official authority is susceptible of misuse. And
everybody knows that when any people will discover the methods to curb it.
Perhaps it is necessary to explain that this decision goes no further than to recognize the
existence of Congressional power. It is settled that the point whether such power has been
wisely or correctly exercised, is usually beyond the ken of judicial determination.
E.—PARLIAMENTARY PRIVILEGES
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One final consideration.
The Constitution provides (Article VI, section 15) that "for any speech or debate" in
congress, Senators and congressmen "shall not be questioned in any other place." The
Supreme Court of the United States has interpreted this privilege to include the giving of a
vote or the presentation of a resolution.
. . . It would be a narrow view of the constitutional provision to limit it towards
spoken in debate. The reason of the rule is as forcible in its application to written
reports presented in that body by its committees, to resolutions offered, which,
though in writing, must be reproduced in speech, and to the act of voting, . . .
(Kilbourn vs. thompson, 103 U.S., 204; 26 Law. ed., 377, p. 391.)
In the above case, Kilbourn, for refusing to answer questions put to him by the House of
Representatives of the United States Congress, concerning the business of a real estate
partnership, was imprisoned for contempt by resolution of the house. He sued to recover
damages from the sergeant at arms and the congressional members of the committee,
who had caused him to be brought before the house, where he was adjudged to be in
contempt. The Supreme Court of the United States found that the resolution of the House
was void for want of jurisdiction in that body, but the action was dismissed as to the
members of the committee upon the strength of the herein above-mentioned
congressional immunity. The court cited with approval the following excerpts from an
earlier decision of the Supreme Court of Massachusetts:
These privileges are thus secured, not with the intention of protecting the
members against prosecutions for their own benefit, but to support the rights of
the people, by enabling their representatives to execute the functions of their
office without fear of prosecutions, civil or criminal. I, therefore, think that the
article ought not to be construed strictly, but liberally, that the full design of it
may be answered. . . (103 U.S., 203.) (Emphasis ours.)
Commenting on this Congressional privilege, Willoughby relates apparently as controlling,
the following incident:
In 1910, several Members of Congress having been served with a writ
of mandamus in a civil action brought against them as members of the Joint
Committee on Printing and growing out a refusal of a bid of the Valley Paper
Company, for the furnishing of paper, the Senate resolved that the Justice issuing
the writ had "unlawfully invaded the constitutional privileges and prerogatives of
the Senate of the United States and of three Senators; and was without
jurisdiction to grant the rule, and Senators are directed to make no appearance in
response thereto." (Willoughby on the Constitution of the United States, Vol. I,
Second Edition, p. 616.)
Respondents are, by this proceeding, called to account for their votes in approving the
Pendatum Resolution. Having sworn to uphold the Constitution, we must enforce the
constitutional directive. We must not question, nor permit respondents to be questioned
here in connection with their votes. (Kilbourn vs. Thompson, supra.)
Case dismissed. No costs.
G.R. No. L-6749 July 30, 1955
JEAN L. ARNAULT, petitioner-appellee,
vs.
EUSTAQUIO BALAGTAS, as Director of Prisons, respondent-appellant.
LABRADOR, J.:
This an appeal from judgment of the Court of First Instance of Rizal, Pasay City Branch,
Honorable Jose F. Flores presiding, in habeas corpus proceeding, declaring that the
continued detention and confinement of Jean L. Arnault in the new Bilibid Prison, in
pursuance of Senate Resolution No. 114, dated November 8, 1952, is illegal, for the
reason that the Senate of the Philippines committed a clear abuse of discretion in
considering his answer naming one Jess D. Santos as the person to whom delivery of the
sum of P440,000 was made in the sale of the Buenavista and Tambobong Estate, as a
refusal to answer the question directed by the Senate committee to him, and on the
further ground that said Jean L. Arnault, by his answer has purged himself of contempt
and is consequently entitled to be released and discharged.
Petitioner-appellee was an attorney in-fact or Ernest H. Burt in the negotiations for the
purchase of the Buenavista and Tambobong Estates by the Government of the Philippines.
The purchase was effected on October 21, 1949 and the price paid for both estates was
P5,000,000. On February 27, 1950, the Senate of the Philippines adopted Resolution No.
8, whereby it created a Special Committee to determine "whether the said purchase was
honest, valid and proper, and whether the price involved in the deal was fair and just, the
parties responsible therefor, any other facts the Committee may deem proper in the
premises." In the investigation conducted by the Committee in pursuance of said
Resolution, petitioner-appellee was asked to whom a part of the purchase price, or
P440,000, was delivered. Petitioner-appellee refused to answer this question, whereupon
the Committee resolved on May 15, 1950, to order his commitment to the custody of the
Sergeant at-arms of the Philippines Senate and imprisoned in the new Bilibid Prison in
Rizal until such time when he shall reveal to the Senate or to the Special Committee the
name of the person who received the P440,000 and to answer questions pertinent thereto.
In G.R. No. L-3820, petitioner-appellee herein questioned the validity of the confinement
so ordered, by a petition for certiorari filed in this Court. He contended that the Senate of
the Philippines has no power to punish him for contempt for refusing to reveal the name of
the person to whom he delivered P440,000., that the Legislature lacks authority to punish
him for contempt beyond the term of the legislative session, and that the question of the
Senate which he refused to answer is an incriminating question which the appellee is not
bound to answer. All the abovementioned contentions were adversely passed upon by the
decision of this Court, so his petition for release was denied.
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In the month of December, 1951, while still in confinement in Bilibid, petitioner-appellee
executed an affidavit, Exhibit A, wherein he gives in detail the history of his life, the
events surrounding acquisition of the Buenavista and Tambobong Estates by Gen. Burt,
the supposed circumstances under which he met one by the name of Jess D. Santos. Upon
the presentation of the said affidavit to the said Senate Special Committee, the latter
subjected petitioner to questioning regarding the identity of Jess D. Santos, and after said
investigation and questioning the Committee adopted Resolution No. 114 on November 8,
1952. This Resolution reads as follows:
RESOLUTION APPROVING THE REPORT OF THE SPECIAL COMMITTEE TO
INVESTIGATE THE BUENAVISTA AND TAMBOBONG ESTATES DEAL, AND
ORDERING THE DIRECTOR OF PRISON TO CONTINUE HOLDING JEAN L. ARNAULT
IN HIS CUSTODY, AND IN CONFINEMENT AND DETENTION AT THE NEW BILIBID
PRISON AT MUNTINLUPA, RIZAL, UNTIL THE SAID ARNAULT SHALL HAVE PURGED
HIMSELF OF CONTEMPT OF THE SENATE.
WHEREAS, on the 15th May 1950 the Senate of the Philippines, transcending
divisions of party and faction in the national interest, adopted a Resolution
ordering the detention and confinement of Jean L. Arnault at the New Bilibid Prison
in Muntinlupa, Rizal, until he should have purged himself of contempt of the
Senate by revealing the person to whom he gave the sum of P440,000 in
connection with the Buenavista and Tambobong Estates deal, and by answering
other pertinent questions in connection therewith;
WHEREAS, after considering the lengthy testimony offered by the said Jean L.
Arnault, and the report thereon rendered by the Senate Special Committee on the
said deal, the Senate holds and finds that, despite numerous and generous
opportunities offered to him at his own instance and solicitation, the said Jean L.
Arnault has failed and refused, and continues to fail and refuse, to reveal the
person to whom he gave the said amount of P440,000, and to answer other
pertinent questions in connection with the Buenavista and Tambobong estates
deal;
WHEREAS, the Senate holds and finds that the situation of the said Jean L. Arnault
has not materially changed since he was committed to prison for contempt of the
Senate, and since the Supreme Court of the Philippines, in a judgment long since
become final, upheld the power and authority of the Senate to hold the said Jean
L. Arnault in custody, detention, and confinement, said power and authority having
been held to be coercive rather than punitive, and fully justified until the said Jean
L. Arnault should have given the information which he had withheld and continues
contumaciously to withhold;
WHEREAS, the insolent and manifest untruthful statements made by the said Jean
L. Arnault on the occasions above referred to constitute a continuing contempt of
the Senate, and an added affront to its dignity and authority, such that , were
they to be condoned or overlooked, the power and authority of the Senate to
conduct investigations would become futile and ineffectual because they could be
defied by any person of sufficient stubbornness and malice;
WHEREAS, the Senate holds and finds that the identity of the person to whom the
said Jean L. Arnault gave the amount of P440,000 in connection with the
Buenavista and Tambobong estates deal, and the further information which the
Senate requires and which the said Jean L. Arnault arrogantly and contumaciously
withholds, is required for the discharge of its legislative functions, particularly so
that adequate measures can be taken to prevent the repetition of similar frauds
upon the Government and the People of the Philippines and to recover said
amount; and
WHEREAS, while not insensible to the appeal of understanding and mercy, the
Senate holds and finds that the said Jean L. Arnault, by his insolent and
contumacious defiance of the legitimate authority of the Senate, is trifling with its
proceedings, renders himself unworthy of mercy, and, in the language of the
Supreme Court, is his own jailer, because he could open the doors of his prison at
any time by revealing the truth; now therefore, be it
Resolved by the Senate of the Philippines, That the Senate hold and find, as it
hereby holds and finds, that Juan L. Arnault has not purged himself of contempt of
the Senate, and has in no way altered his situation since he has committed to
coercive not punitive, imprisonment for such contempt on the 15th day of May,
1950; and that Senate order, as it hereby orders, the Director of Prisons to hold
the said Jean L. Arnault, in his custody, and in confinement and detention at the
New Bilibid Prison in Muntinlupa, Rizal, in coercive imprisonment, until he should
have purged himself of the aforesaid contempt to the satisfaction, and until order
to that effect, of the Senate of the Philippines or of its Special Committee to
investigate the Buenavista and Tambobong Estates deal.
Adopted, November 8, 1952 . (Exhibit 0)
In his petition for the writ of habeas corpus in the Court of First Instance, petitioner-
appellee alleges: (1) That the acquisition by the Government, through the Rural Progress
Administration, of the Buenavista and Tambobong Estates was not illegal nor irregular nor
scandalous nor malodorous, but was in fact beneficial to the Government; (2) that the
decision of this Court in G. R. No. L-3820 declared that the Senate did not imprison
Arnault "beyond proper limitations", i.e., beyond the period longer than arresto mayor, as
this is the maximum penalty that can be imposed under the provisions of Article 150 of
the Revised Penal Code; (3) that petitioner-appellee purged himself of the contempt
charges when he disclosed the fact that the one to whom he gave the P440,000 was Jess
D. Santos, and submitted evidence in corroboration thereof; (4) that the Senate is not
justified in finding that the petitioner-appellee did tell the truth when he mentioned Jess D.
Santos as the person to whom he gave the P440,000, specially on the basis of the
evidence submitted to it; (5) that the legislative purpose or intention, for which the Senate
ordered the confinement may be considered as having been accomplished, and, therefore,
there is no reason for petitioner-appellee's continued confinement.
114 | P a g e
The claim that the purchase of the Buenavista and Tambobong Estates is beneficial to the
government and is neither illegal nor irregular is beside the point. To our minds, two
questions are decisive of this case. The first is: Did the Senate Special Committee believe
the statement of the petitioner-appellee that the person to whom he gave the P440,000 is
one by the name of Jess D. Santos and if it did not, may the court review said finding?
And the second is: If the Senate did not believe the statement, is the continued
confinement and detention of the petitioner-appellee, as ordered in Senate Resolution of
November 8, 1952, valid?
On the first question, the Senate found as a fact that petitioner "has failed and refused,
and continues to fail and refuse, to reveal the person to whom he gave the amount of
P440,000" and that the situation of petitioner "has not materially charged since he was
committed to prison." In the first resolution of the Senate Special Committee of May 15,
1950, it found that petitioner "refused to reveal the name of the persons to whom he gave
the P440,000, as well as to answer other pertinent questions related to said amount." It is
clear and evident that the Senate Committee did not believe petitioner's statement that
the person to whom he delivered the abovementioned amount is one by the name of Jess
D. Santos. The court a quo, however, arrogating unto itself the power to review such
finding, held that the "petitioner has satisfactorily shown that the person of Jess D. Santos
actually and physically existed in the human flesh," that the opinion or conclusion of the
Senate Committee is not borne to out by the evidence produced at the investigation, that
the Senate abused its discretion in making its conclusion and that under these
circumstances the only thing that could in justice be done to petitioner is to order his
release and have his case endorsed to the prosecution branch of the judicial department
for investigation and prosecution as the circumstances warrant.
There is an inherent fundamental error in the course of action that the lower court
followed. It assumed that courts have the right to review the findings of legislative bodies
in the exercise of the prerogative of legislation, or interfere with their proceedings or their
discretion in what is known as the legislative process.
The courts avoid encroachment upon the legislature in its exercise of departmental
discretion in the means used to accomplish legitimate legislative ends. Since the
legislature is given a large discretion in reference to the means it may employ to
promote the general welfare, and alone may judge what means are necessary and
appropriate to accomplish an end which the Constitution makes legitimate, the
courts cannot undertake to decide whether the means adopted by the legislature
are the only means or even the best means possible to attain the end sought, for
such course would best the exercise of the police power of the state in the judicial
department. It has been said that the methods, regulations, and restrictions to be
imposed to attain results consistent with the public welfare are purely of legislative
cognizance, and the determination of the legislature is final, except when so
arbitrary as to be violative of the constitutional rights of the citizen. Furthermore,
in the absence of a clear violation of a constitutional inhibition, the courts should
assume that legislative discretion has been properly exercised. (11 Am. Jur., pp.
901-902).
These the judicial department of the government has no right or power or authority to do,
much in the same manner that the legislative department may not invade the judicial
realm in the ascertainment of truth and in the application and interpretation of the law, in
what is known as the judicial process, because that would be in direct conflict with the
fundamental principle of separation of powers established by the Constitution. The only
instances when judicial intervention may lawfully be invoke are when there has been a
violation of a constitutional inhibition, or when there has been an arbitrary exercise of the
legislative discretion.
Under our 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 the
popular will. Each has exclusive cognizance of the matters within its jurisdiction,
and is supreme within its own sphere. (People of the Philippine Islands, et al. vs.
Vera, et al 65 Phil., 56; See also Angara vs. Electoral Commission, 63 Phil., 139)
All that the courts may do, in relation to the proceedings taken against petitioner prior to
his incarceration, is to determine if the constitutional guarantee of due process has been
accorded him before his incarceration by legislative order, and this because of the
mandate of the Supreme Law of the land that no man shall be deprived life, liberty or
property without due process of law. In the case at bar such right has fully been extended
the petitioner, he having been given the opportunity to be heard personally and by
counsel in all the proceedings prior to the approval of the Resolution ordering his
continued confinement.
The second question involves in turn the following propositions: Does the Philippine
Senate have the power and authority to pass its resolution ordering the continued
confinement of the petitioner? In the supposition that such power and authority exist, was
such power legitimately exercised after the petitioner had given the name Jess D. Santos?
A study of the text of the resolution readily shows that the Senate found that the
petitioner-appellee did not disclose, by the mere giving of the name Jess D. Santos, the
identity of the person to whom the sum of P440, 000 was delivered, and, in addition
thereto that petitioner withheld said identity arrogantly and contumaciously in continued
affront of the Senate's authority and dignity. Although the resolution studiously avoids
saying that the confinement is a punishment, but merely seeks to coerce the petitioner
into telling the truth, the intention is evident that the continuation of the imprisonment
ordered is in fact partly unitive. This may be inferred from the confining made in the
resolution that petitioner-appellee's acts were arrogant and contumacious and constituted
an affront to the Senate's dignity and authority. In a way, therefore, the petitioner's
assumption that the imprisonment is punitive is justified by the language of the resolution,
wherefore the issue now before Us in whether the Senate has the power to punish the
contempt committed against it under the circumstances of the case. This question is thus
squarely presented before Us for determination.
In the previous case of this same petitioner decided by this Court, G. R. No. L-38201,
Arnault vs. Nazareno, et al. (46 Off. Gaz., No. 7, 3100), it was admitted and we had ruled
that the Senate has the authority to commit a witness if he refuses to answer a question
115 | P a g e
pertinent to a legislative inquiry, to compel him to give the information, i.e., by reason of
its coercive power, not its punitive power. It is now contended by petitioner that if he
committed an offense of contempt or perjury against the legislative body, because he
refused to reveal the identity of the person in accordance with the demands of the Senate
Committee, the legislature may not punish him, for the punishment for his refusal should
be sought through the ordinary processes of the law, i. e., by the institution of a criminal
action in a court of justice.
American legislative bodies, after which our own is patterned, have the power to punish
for contempt if the contempt has had the effect of obstructing the exercise by the
legislature of, or deterring or preventing it from exercising, its legitimate functions
(Annotation to Jurney vs. MacCraken, 79 L. ed. 814). While the power of the United States
Senate to punish for contempt was not clearly recognized in its earlier decision (See
Marshal vs. Gordon, 61 L. ed. 881), the Supreme Court of the United States two decades
ago held that such power and authority exist. In the case of Jurney vs. MacCraken (294 U.
S. 123, 79 L. ed. 802), the question before it was whether or not the Senate could order
the confinement of a private citizen because of the destruction and removal by him of
certain papers required to be produced. The court said:
First, The main contention of MacCracken is that the so-called power to punish for
contempt may never be exerted, in the case of a private citizen,
solely qua punishment. The argument is that the power may be used by the
legislative body merely as a means of removing an existing obstruction to the
performance of its duties; that the power to punish ceases as soon as the
obstruction has been removed, or its removal has become impossible; and hence
that there is no power to punish a witness who, having been requested to produce
papers, destroys them after service of the subpoena. The contention rests upon a
misconception of the limitations upon the power of the Houses of Congress to
punish for contempt. It is true that the scope of the power is narrow. No act is so
punishable unless it is of a nature to obstruct the performance of the duties of the
legislature. This may be lack of power, because, as in Kilbourn vs. Thompson, 103
U. S. 168, 26 L. ed. 377, there was no legislative duty to be performed; or
because, as in Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L.
R. A. 1917F, 279, Ann. Cas. 1918B, 371, the act complained of is deemed not to
be of a character to obstruct the legislative process. But, where the offending act
was of a nature to obstruct the legislative process, the fact that the obstruction
has since been removed, or that its removal has become impossible is without
legal significance.
The power to punish a private citizen for a past and completed act was exerted by
Congress as early as 1795; and since then it has been exercised on several
occasions. It was asserted, before the Revolution, by the colonial assemblies, in
intimation of the British House of Commons; and afterwards by the Continental
Congress and by state legislative bodies. In Anderson vs. Dunn, 6 Wheat, 204, 5
L. ed. 242, decided in 1821, it was held that the House had power to punish a
private citizen for an attempt to bribe a member. No case has been found in which
an exertion of the power to punish for contempt has been successfully challenged
on the ground that, before punishment, the offending act had been consummated
or that the obstruction suffered was irremediable. The statement in the opinion in
Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A. 1917F.
279 Ann. Cas. 1918B, 371, supra, upon which MacCracken relies, must be read in
the light of the particular facts. It was there recognized that the only jurisdictional
test to be applied by the court is the character of the offense; and that the
continuance of the obstruction, or the likelihood of its repetition, are
considerations for the discretion of the legislators in meting out the punishment.
Here, we are concerned not with an extention of congressional privilege, but with
vindication of the established and essential privilege of requiring the production of
evidence. For this purpose, the power to punish for a past contempt is an
appropriate means. Compare Ex parte Nugent (C. C.) 1 Brunner, Col. Cas. 296,
Fed. Cas No. 10375; Steward vs. Bleine, 1 MacArth. 453. The apprehensions
expressed from time to time in congressional debates, in opposition to particular
exercise of the contempt power concerned, not the power to punish, as such, but
the broad, undefined privileges which it was believed might find sanction in that
power. The ground for such fears has since been effectively removed by the
decisions of this Court which hold that assertions of congressional privilege are
subject to judicial review. Melbourn vs. Thompson, 103 U. S. 168, 26 L. ed.
377, supra; and that the power to punish for contempt may not be extended to
slanderous attacks which presents no immediate obstruction to legislative
processes. Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L.R.
A. 1917F, Ann. Cas. 1918B, 731 supra.
The principle that Congress or any of its bodies has the power to punish recalcitrant
witnesses is founded upon reason and policy. Said power must be considered implied or
incidental to the exercise of legislative power, or necessary to effectuate said power. How
could a legislative body obtain the knowledge and information on which to base intended
legislation if it cannot require and compel the disclosure of such knowledge and
information, if it is impotent to punish a defiance of its power and authority? When the
framers of the Constitution adopted the principle of separation of powers, making each
branch supreme within the realm of its respective authority, it must have intended each
department's authority to be full and complete, independently of the other's authority and
power. And how could the authority and power become complete if for every act of
refusal, every act of defiance, every act of contumacy against it, the legislative body must
resort to the judicial department for the appropriate remedy, because it is impotent by
itself to punish or deal therewith, with the affronts committed against its authority or
dignity. The process by which a contumacious witness is dealt with by the legislature in
order to enable it to exercise its legislative power or authority must be distinguished from
the judicial process by which offenders are brought to the courts of justice for the meting
of the punishment which the criminal law imposes upon them. The former falls exclusively
within the legislative authority, the latter within the domain of the courts; because the
former is a necessary concommitant of the legislative power or process, while the latter
has to do with the enforcement and application of the criminal law.
We must also and that provided the contempt is related to the exercise of the legislative
power and is committed in the course of the legislative process, the legislature's authority
to deal with the defiant and contumacious witness should be supreme, and unless there is
116 | P a g e
a manifest and absolute disregard of discretion and a mere exertion of arbitrary power
coming within the reach of constitutional limitations, the exercise of the authority is not
subject to judicial interference. (Marshall vs. Gordon, supra).
The next question concerns the claim that the petitioner has purged himself of contempt,
because he says he has already answered the original question which he had previously
been required to answer. In order that the petitioner may be considered as having purged
himself of the contempt, it is necessary that he should have testified truthfully, disclosing
the real identity of the person subject of the inquiry. No person guilty of contempt may
purge himself by another lie or falsehood; this would be repetition of the offense. It is true
that he gave a name, Jess D. Santos, as that of the person to whom delivery of the sum of
P440,000 was made. The Senate Committee refused to believe, and justly, that is the real
name of the person whose identity is being the subject of the inquiry. The Senate,
therefore, held that the act of the petitioner continued the original contempt, or reiterated
it. Furthermore, the act further interpreted as an affront to its dignity. It may well be
taken as insult to the intelligence of the honorable members of the body that conducted
the investigation. The act of defiance and contempt could not have been clearer and more
evident. Certainly, the Senate resolution declaring the petitioner in contempt may not be
claimed as an exertion of an arbitrary power.
One last contention of petitioner remains to be considered. It is the claim that as the
period of imprisonment has lasted for a period which exceeded that provided by law
punishment for contempt, i. e., 6 months of arresto mayor, the petitioner is now entitled
to be released. This claim is not justified by the record. Petitioner was originally confined
by Resolution No. 17 on May 15, 1950. On December 13, 1951, he executed his affidavit
and thereafter he was called to testify again before the Senate Committee. The latter
passed its Resolution No. 114 on November 6, 1952, and he presented the petition
for habeas corpus in this case on March 3, 1953, i. e., five months after the last resolution
when the Senate found that the petitioner committed another contempt. It is not true,
therefore, that the petitioner's punishment is beyond the full period prescribed in the
criminal law.
Besides, the last resolution of November 8, 1952 is also of a coersive nature, in the sense
that the Senate Committee still demands and requires the disclosure of the fact which the
petitioner had obstinately refused to divulge. While the Philippine Senate has not given up
hope that the petitioner may ultimately disclose the record, it is improper for the courts to
declare that the continued confinement is an abuse of the legislative power and thereby
interfere in the exercise of the legislative discretion.
The judgment appealed from should be, as it hereby is, reversed, and the petition for the
issuance of the writ ofhabeas corpus denied. The order of the court allowing the petitioner
to give bail is declared null and void and the petitioner is hereby ordered to be
recommitted to the custody of the respondent. With cost against the petitioner-appellee.
Philippine Bar Association v. COMELEC
140 SCRA 455
FACTS:
A number of petitions assail the validity of B.P Blg. 883 calling for a special election for a
President and Vice-president on February 7, 1986. Marcos gave a conditional resignation
where he shall vacate the position only when a winner has been proclaimed and qualified
by taking his oath 10 days after the proclamation. Petitioners question the validity of
Marcos’ resignation as it did not create the vacancy needed for a special election to be
held and pray for prohibition to acts in relation to B.P. Blg. 883
Petitions were filed questioning the validity of BP 883, calling a special election for
President and Vice-President on February 7, 1986.
The law was enacted following the letter of President Marcos to the BP that he was
"irrevocably vacating the position of President effective only when the election is held and
after the winner is proclaimed and qualified as Pres. by taking his oath of office ten days
after his proclamation."
The principal ground for the challenge to the validity of the statute was that the
conditional resignation of the President did not create a vacancy required by Article VII,
Sec. 9 which authorized the calling of a special election.
ISSUES:
Whether or not BP 883 is unconstitutional
Whether or not the Supreme Court should allow incumbent President Marcos to run on
that said special election.
HELD:
After deliberating, 7 Justices voted to dismiss. On the other hand, 5 Justices voted to
declare the statute unconstitutional. In accordance with Javellana v. Executive Secretary,
of the view that as there were less than ten votes for declaring BP 883 unconstitutional.
The petitions should be dismissed.
On the second issue, it turned out to be a political question. It can only be decided by the
people in their sovereign capacity at the scheduled election. Thus, it is outside the ambit
of the courts.
The Court failed to have 10 votes to declare B.P. Blg. 883. Unconstitutional. Whereas the
original issue on B.P Blg. 883’s constitutionality, the issue has now transformed into a
political question where only the sovereign people can decide in a fair, clean and honest
election. As such, the Court dismissed the petitions and denied their prayers of prohibition.
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 The Court believes the following essential facts have been established:

The Court cannot stand in the way of letting the people decide through their ballot, either In the session of the Senate of February 18, 1949, Senator Lorenzo M. Tañadare quested
to the give the incumbent president a new mandate or elect a new president. that his right to speak on the next session day, February 21, 1949, to formulate charges
against the then Senate President Jose Avelino be reserved. His request was approved.
Extract of the Decision
of On February 21, 1949, hours before the opening of the session Senator Tañada and
Philippine Supreme Court Senator Tañada and Senator Prospero Sanidad filed with the Secretary of the Senate a
On the constitutionality of Batas Pambansa Blg. 883 on the holding of the Snap resolution enumerating charges against the then Senate President and ordering the
Presidential Election investigation thereof.

[Released in Manila, December 19, 1985]
Gentlemen:
Quoted hereunder, for your information, is a resolution of the Court dated December 19,
1985
After considering all the pleadings and deliberating on the issues raised in the petitions as
well as on the oral arguments of the parties and the amici curiae in the hearings held in
these cases, Chief Justice Ramon C. Aquino and six (6) Justices, namely, Justices Claudio
Teehankee, Hermogenes Concepcion Jr., Vicente Abad Santos, Efren I. Plana, Vinicio T.
Escolin and Lorenzo Relova, voted to DISMISS the petitions in these cases and to DENY
the prayer for the issuance of an injunction restraining respondents from holding the
election on February 7, 1986. In the opinion of Chief Justice Aquino, B.P. 883 is
constitutional.
Justices Hugo Gutierrez, Jr., B.S. de la Fuente, Serafin R. Cuevas, Nestor B. Alampay and
Lino M. Patajo voted to DECLARE B.P. 883 unconstitutional and to grant the injunction
prayed for.
Justices Teehankee, Plana, Escolin, Relova, Gutierrez, Jr., Alampay and Patajo filed
separate opinions.
This resolution is without prejudice to the filing of separate opinions by the other Members
of this Court.”
Melencio-Herrera, J., is on leave.
G.R. NO. 72915 (PBA ET AL. VS. COMELEC ET AL.) and other consolidated petitions.
Although a sufficient number of senators to constitute a quorum were at the Senate
session hall at the appointed time (10:00 A.M.), and the petitioner was already in his
office, said petitioner delayed his appearance at the session hall until about 11:35 A.M.
When he finally ascended the rostrum, he did not immediately open the session, but
instead requested from the Secretary a copy of the resolution submitted by Senators
Tañada and Sanidad and in the presence of the public he read slowly and carefully said
resolution, after which he called and conferred with his colleagues Senator Francisco and
Tirona.
Shortly before 12:00 noon, due to the session be opened, the petitioner finally called the
meeting to order. Except Senator Sotto who was confined in a hospital and Senator
Confesor who is in the United States, all the Senator were present.
Senator Sanidad, following a long established practice, moved that the roll call be
dispensed with, but Senator Tirona opposed said motion, obviously in pursuance of a
premeditated plan of petitioner and his partisans to make use of dilatory tactics to prevent
Senator Tañada from delivering his privilege speech. The roll was called.
Senator Sanidad next moved, as is the usual practice, to dispense with the reading of the
minutes, but this motion was likewise opposed by Senator Tirona and David, evidently,
again, in pursuance of the above-mentioned conspiracy.

G.R. No. L-2821 March 4, 1949 Before and after the roll call and before and after the reading of the minutes, Senator
JOSE AVELINO, petitioner, Tañada repeatedly stood up to claim his right to deliver his one-hour privilege speech but
vs. the petitioner, then presiding, continuosly ignored him; and when after the reading of the
MARIANO J. CUENCO, respondent. minutes, Senator Tañada instead on being recognized by the Chair, the petitioner
announced that he would order the arrest of any senator who would speak without being
previously recognized by him, but all the while, tolerating the actions of his follower,
RESOLUTION
Senator Tirona, who was continuously shouting at Senator Sanidad "Out of order!"
everytime the latter would ask for recognition of Senator Tañada.
In G.R. No. L-2821, Avelino vs. Cuenco, the Court by a vote of six justices against four
resolved to deny the petition.
At this juncture, some disorderly conduct broke out in the Senate gallery, as if by pre-
arrangement. At about this same time Senator Pablo Angeles David, one of the petitioner's
Without prejudice to the promulgation of a more extended opinion, this is now written followers, was recognized by petitioner, and he moved for adjournment of session,
briefly to explain the principal grounds for the denial. evidently, again, in pursuance of the above-mentioned conspiracy to muzzle Senator
Tañada.

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Senator Sanidad registered his opposition to the adjournment of the session and this
opposition was seconded by herein respondent who moved that the motion of
adjournment be submitted to a vote. Another commotion ensued.
Senator David reiterated his motion for adjournment and herein respondent also reiterated
his opposition to the adjournment and again moved that the motion of Senator David be
submitted to a vote.
Suddenly, the petitioner banged the gavel and abandoning the Chair hurriedly walked out
of the session hall followed by Senator David, Tirona, Francisco, Torres, Magalona and
Clarin, while the rest of the senators remained. Whereupon Senator Melencio Arranz,
Senate President Pro-tempore, urged by those senators present took the Chair and
proceeded with the session.
Senator Cabili stood up, and asked that it be made of record — it was so made — that the
deliberate abandonment of the Chair by the petitioner, made it incumbent upon Senate
President Pro-tempore Arranz and the remaining members of the Senate to continue the
session in order not to paralyze the functions of the Senate.
Senate President Pro-tempore Arranz then suggested that respondent be designated to
preside over the session which suggestion was carried unanimously. the respondent
thereupon took the Chair.
Upon motion of Senator Arranz, which was approved Gregorio Abad was appointedActing
Secretary, because the Assistance Secretary, who was then acting as Secretary, had
followed the petitioner when the latter abandoned the session.
Senator Tañada, after being recognized by the Chair, was then finally able to deliver his
privilege speech. Thereafter Senator Sanidad read aloud the complete text of said
Resolution (No. 68), and submitted his motion for approval thereof and the same was
unanimously approved.
With Senate President Pro-tempore Arranz again occupying the Chair, after the respondent
had yielded it to him, Senator Sanidad introduced Resolution No. 67, entitled "Resolution
declaring vacant the position of the President of the Senate and designated the Honorable
Mariano Jesus Cuenco Acting President of the Senate." Put to a vote, the said resolution
was unanimously approved.
Senator Cuenco took the oath.
The next day the President of the Philippines recognized the respondent as acting
president of the Philippines Senate.
By his petition in this quo warranto proceeding petitioners asked the Court to declare him
the rightful President of the Philippines senate and oust respondent.
The Court has examined all principal angles of the controversy and believes that these are
the crucial points:
a. Does the Court have jurisdiction over the subject-matter?
b. If it is has, were resolution Nos. 68 and 67 validly approved?
c. Should the petition be granted?
To the first question, the answer is in the negative, in view of the separation of powers,
the political nature of the controversy (Alejandrino vs. Quezon, 46 Phil., 83; Vera vs.
Avelino, 77 Phil., 192; Mabanag vs. Lopez Vito, 78 Phil., 1) and the constitutional grant to
the Senate of the power to elect its own president, which power should not be interfered
with, nor taken over, by the judiciary. We refused to take cognizance of the Vera case
even if the rights of the electors of the suspended senators were alleged affected without
any immediate remedy. A fortiori we should abstain in this case because the selection of
the presiding officer affect only the Senators themselves who are at liberty at any time to
choose their officers, change or reinstate them. Anyway, if, as the petition must imply to
be acceptable, the majority of the Senators want petitioner to preside, his remedy lies in
the Senate Session Hall — not in the Supreme Court.
The Court will not sally into the legitimate domain of the Senate on the plea that our
refusal to intercede might lead into a crisis, even a resolution. No state of things has been
proved that might change the temper of the Filipino people as a peaceful and law-abiding
citizens. And we should not allow ourselves to be stampeded into a rash action
inconsistent with the calm that should characterized judicial deliberations.
The precedent of Werts vs. Roger does not apply, because among other reasons, the
situation is not where two sets of senators have constituted themselves into two
senates actually functioning as such, (as in said Werts case), there being no question that
there is presently one Philippines Senate only. To their credit be it recorded that petitioner
and his partisans have not erected themselves into another Senate. The petitioner's claim
is merely that respondent has not been duly elected in his place in the
same one Philippines Senate.
It is furthermore believed that the recognition accorded by the Chief Executive to the
respondent makes it advisable, more than ever, to adopt the hands-off policy wisely
enunciated by this Court in matters of similar nature.
The second question depends upon these sub-questions. (1) Was the session of the so-
called rump Senate a continuation of the session validly assembled with twenty two
Senators in the morning of February 21, 1949?; (2) Was there a quorum in that session?
Mr. Justice Montemayor and Mr. Justice Reyes deem it useless, for the present to pass on
these questions once it is held, as they do, that the Court has no jurisdiction over the
case. What follows is the opinion of the other four on those four on those sub-questions.
Supposing that the Court has jurisdiction, there is unanimity in the view that the session
under Senator Arranz was a continuation of the morning session and that a minority of ten
senators may not, by leaving the Hall, prevent the other twelve senators from passing a
119 | P a g e
resolution that met with their unanimous endorsement. The answer might be different had
the resolution been approved only by ten or less.
If the rump session was not a continuation of the morning session, was it validly
constituted? In other words, was there the majority required by the Constitution for the
transaction of the business of the Senate? Justice Paras, Feria, Pablo and Bengzon say
there was, firstly because the minute say so, secondly, because at the beginning of such
session there were at least fourteen senators including Senators Pendatun and Lopez, and
thirdly because in view of the absence from the country of Senator Tomas Confesor twelve
senators constitute a majority of the Senate of twelve three senators. When the
Constitution declares that a majority of "each House" shall constitute a quorum, "the
House: does not mean "all" the members. Even a majority of all the members constitute
"the House". (Missouri Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239). There is a difference
between a majority of "the House", the latter requiring less number than the first.
Therefore an absolute majority (12) of all the members of the Senate less one (23),
constitutes constitutional majority of the Senate for the purpose of a quorum. Mr. Justice
Pablo believes furthermore than even if the twelve did not constitute a quorum, they could
have ordered the arrest of one, at least, of the absent members; if one had been so
arrested, there would be no doubt Quorum then, and Senator Cuenco would have been
elected just the same inasmuch as there would be eleven for Cuenco, one against and one
abstained.
In fine, all the four justice agree that the Court being confronted with the practical
situation that of the twenty three senators who may participate in the Senate deliberations
in the days immediately after this decision, twelve senators will support Senator Cuenco
and, at most, eleven will side with Senator Avelino, it would be most injudicious to declare
the latter as the rightful President of the Senate, that office being essentially one that
depends exclusively upon the will of the majority of the senators, the rule of the Senate
about tenure of the President of that body being amenable at any time by that majority.
And at any session hereafter held with thirteen or more senators, in order to avoid all
controversy arising from the divergence of opinion here about quorum and for the benefit
of all concerned,the said twelve senators who approved the resolutions herein involved
could ratify all their acts and thereby place them beyond the shadow of a doubt.
As already stated, the six justices hereinabove mentioned voted to dismiss the petition.
Without costs.
G.R. No. 2808 September 30, 1905
FELIX BARCELON, petitioner,
vs.
DAVID J. BAKER, JR., AND JOHN DOE THOMPSON, respondents.
JOHNSON, J.:
This was an application by Fred C. Fisher and Charles C. Cohn, attorneys at law, on behalf
of the plaintiff, Felix Barcelon, for a writ of habeas corpus. The said application alleges,
among other things, the following:
(1) That the said applicant is detained and restrained of his liberty at the
town of Batangas, in the Province of Batangas, Philippine Islands.
(2) That the person who detained and restrained the said applicant of his
liberty is John Doe Thompson, captain of the Philippines Constabulary, acting
under and in pursuance of the orders of David J. Baker, Jr., colonel of the
Philippines Constabulary.
(3) That the detention and restraint of the said applicant is wholly without
legal authority therefor. [Here follows a statement of the alleged causes of arrest
and detention of the said applicant by the said defendants.]
(4) That the detention and restraint of the said applicant is not under or by
virtue of any process issued by any court or magistrate, nor by virtue of any
judgment or order of any court of record, nor of any court nor of any magistrate
whatsoever.
(5) That there has not existed during any of the times in this petition
mentioned, and there does not now exist, is said Province of Batangas, Philippine
islands, nor in any part thereof, rebellion, insurrection, or invasion, nor any of
them, in any form or degree; and that all the courts of law, organized and
provided by law for the Province of Batangas, have been at all of the times
hereinbefore mentioned in the full and complete exercise of their functions,
without interruption of any nature or kind.
Wherefore your petitioners pray that a writ of habeas corpus be issued,
requiring the said John Doe Thompson, captain of the Philippines Constabulary,
and David J. Baker, jr., colonel of the Philippines Constabulary, to bring before this
honorable court the person of the said Felix Barcelon, and that after a full hearing
in accordance with law the said Felix Barcelon be liberated and released from all
restraint and detention, and that respondents be enjoined from any and all
interference with the personal liberty of said Felix Barcelon, and to pay the costs of
this proceeding. (Signed) Fred C. Fisher. Charles C. Cohn. (The foregoing facts
were duly sworn to by the said applicants.)
The court, after considering the foregoing petition, made an order on the 3rd day of
August, 1905, directing the said David J. Baker, Jr., and the said John Doe Thompson to
appear before this court on the 4th day of August, 1905, at 9 o'clock a.m., to show cause
why the writ of habeas corpus should not be granted in accordance with the prayer of said
petition.
At 9 o'clock a.m. on the 4th day of August the respondents, by the Attorney-General of
the Philippine Islands, through George R. Harvey, representing the latter, filed their
answer to the foregoing petition. By reason of the fact that the said answer failed to
disclose whether or not the said Felix Barcelon was actually detained and deprived of his
liberty by the said respondents, the court directed that said answer be amended, stating
without equivocation whether or not Felix Barcelon was actually detained by the said
respondents, which amended answer, among other things, contained the following
allegations:
(1) That the writ of habeas corpus should not issue on the application filed herein,
because the court is without jurisdiction or authority to grant the privilege of the
writ of habeas corpus in the Province of Batangas, for the reason that on January
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31, 1905, the Governor-General, pursuant to a resolution and request of the
Philippine Commission, suspended said writ in the Provinces of Cavite and
Batangas, in accordance with the provisions of section 5 of the act of congress
known as "The Philippine Bill," the Philippine Commission and the Governor-
General basing such suspension upon the fact that certain organized bands of
ladrones in said provinces were in open insurrection against the constituted
authorities; and the said bands, or parts of them, and some of their leaders, were
still in open resistance to the constituted authorities. The said resolution of the
Commission and the said proclamation of the Governor-General are in the words
following:
"RESOLUTION OF THE PHILIPPINE COMMISSION DATED JANUARY 31, 1905.
"Whereas certain organized bands of ladrones exist in the Provinces of
Cavite and Batangas who are levying forced contributions upon the people, who
frequently require them, under compulsion, to join their bands, and who kill or
maim in the most barbarous manner those who fail to respond to their unlawful
demands, and are therefore terrifying the law-abiding and inoffensive people of
those provinces; and
"Whereas these bands have in several instances attacked police and
Constabulary detachments, and are in open insurrection against the constituted
authorities; and
"Whereas it is believed that these bands have numerous agents and
confederates living within the municipalities of the said provinces; and
"Whereas, because of the foregoing conditions, there exists a state of
insecurity and terrorism among the people which makes it impossible in the
ordinary way to conduct preliminary investigations before justices of the peace
and other judicial officers: Now, therefore,
"Be it resolved, That, the public safety requiring it, the Governor-General
is hereby authorized and requested to suspend the writ of habeas corpus in the
Provinces of Cavite and Batangas.
EXECUTIVE ORDER } "MANILA, January 31, 1905.
NO. 6. }
"Whereas certain organized bands of ladrones exist in the Provinces of
Cavite and Batangas who are levying forced contributions upon the people, who
frequently require them, under compulsion, to join their bands, and who kill or
maim in the most barbarous manner those who fail to respond to their unlawful
demands, and are therefore terrifying the law-abiding and inoffensive people of
those provinces; and
"Whereas these bands have in several instances attacked police and
Constabulary detachments, and are in open insurrection against the constituted
authorities, and it is believed that the said bands have numerous agents and
confederates living within the municipalities of the said provinces; and
"Whereas, because of the foregoing conditions there exists a state of
insecurity and terrorism among the people which makes it impossible in the
ordinary way to conduct preliminary investigations before the justices of the peace
and other judicial officers:
"In the interest of public safety, it is hereby ordered that the writ of habeas
corpus is from this date suspended in the Provinces of Cavite and Batangas.
"(Signed) LUKE E.
WRIGHT,
"Governor-General."
(2) Not waiving the question of jurisdiction, the respondents state that it is true
that Felix Barcelon was detained in the month of April, 1905, by order of Colonel
David J. Baker, Jr., assistant chief of the Philippines constabulary, and that the
said Barcelon is now detained under the surveillance of Captain W.E. Thompson,
senior inspector of Constabulary, in the province of Batangas.
By this answer the respondents admit that they are detaining the body of the said Felix
Barcelon, and deny the right of this court to inquire into the reasons therefor by virtue of
the said resolution of the Philippine commission and the executive order of the Governor-
General, issued by authority of the same, suspending the privilege of the writ of habeas
corpus in the said Provinces of Cavite and Batangas.
Thus the question is squarely presented whether or not the judicial department of the
Government may investigate the facts upon which the legislative and executive branches
of the Government acted in providing for the suspension and in actually suspending the
privilege of the writ of habeas corpus in said provinces. has the Governor-General, with
the consent of the Commission, the right to suspend the privilege of the writ of habeas
corpus? If so, did the Governor-General suspend the writ of habeas corpus in the
Provinces of Cavite and Batangas in accordance with such authority?
A paragraph of section 5 of the act of Congress of July 1, 1902, provides:
That the privilege of the writ of habeas corpus shall not be suspended, unless
when in cases of rebellion, insurrection, or invasion the public safety may require
it, in either of which events the same may be suspended by the President, or by
the Governor-General with the approval of the Philippine Commission, whenever
during such period the necessity for such suspension shall exist.
This provision of the act of Congress is the only provision giving the
Governor-General and the Philippine commission authority to suspend the privilege of the
writ of habeas corpus. No question has been raised with reference to the authority of
Congress to confer this authority upon the President or the Governor-General of these
Islands, with the approval of the Philippine Commission.
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This provision of the act of Congress makes two conditions necessary in order that the
President or the Governor-General with the approval of the Philippine Commission may
suspend the privilege of the write of habeas corpus. They are as follows:
(1) When there exists rebellion, insurrection, or invasion; and
(2) When public safety may require it.
In other words, in order that the privilege of the writ of habeas corpus may be suspended,
there must exist rebellion, insurrection, or invasion, and the public safety must require it.
This fact is admitted, but the question is, Who shall determine whether there exists a state
of rebellion, insurrection, or invasion, and that by reason thereof the public safety requires
the suspension of the privilege of the write of habeas corpus?
It has been argued and admitted that the Governor-General, with the approval of the
Philippine Commission, has discretion, when insurrection, rebellion, or invasion actually
exist, to decide whether the public safety requires the suspension of the privilege of the
writ of habeas corpus; but the fact whether insurrection, rebellion, or invasion does
actually exist is an open question, which the judicial department of the Government may
inquire into and that the conclusions of the legislative and executive departments (the
Philippine Commission and the Governor-General) of the government are not conclusive
upon that question.
In other words, it is contended that the judicial department of the Government may
consider an application for the writ of habeas corpus, even though the privileges of the
same have been suspended, in the manner provided by law, for the purposes of taking
proof upon the question whether there actually exists a state of insurrection, rebellion, or
invasion.
The applicants here admit that if a state of rebellion, insurrection, or invasion exists, and
the public safety is in danger, then the President, or Governor-General with the approval
of the Philippine Commission, may suspend the privilege of the writ of habeas corpus.
Inasmuch as the President, or Governor-General with the approval of the Philippine
commission, can suspend the privilege of the writ of habeas corpus only under the
conditions mentioned in the said statute, it becomes their duty to make an investigation of
the existing conditions in the Archipelago, or any part thereof, to ascertain whether there
actually exists a state of rebellion, insurrection, or invasion, and that the public safety
requires the suspension of the privilege of the writ of habeas corpus. When this
investigation is concluded, the President, or the Governor-General with the consent of the
Philippine commission, declares that there exist these conditions, and that the public
safety requires the suspension of the privilege of the writ of habeas corpus, can the
judicial department of the Government investigate the same facts and declare that no
such conditions exist?
The act of Congress, above quoted, wisely provides for the investigation by two
departments of the Government — the legislative and executive — of the existing
conditions, and joint action by the two before the privilege of the writ of habeas
corpus can be suspended in these Islands.
If the investigation and findings of the President, or the Governor-General with the
approval of the Philippine Commission, are not conclusive and final as against the judicial
department of the Government, then every officer whose duty it is to maintain order and
protect the lives and property of the people may refuse to act, and apply to the judicial
department of the Government for another investigation and conclusion concerning the
same conditions, to the end that they may be protected against civil actions resulting from
illegal acts.
Owing to conditions at times, a state of insurrection, rebellion, or invasion may arise
suddenly and may jeopardize the very existence of the State. Suppose, for example, that
one of the thickly populated Governments situated near this Archipelago, anxious to
extend its power and territory, should suddenly decide to invade these Islands, and
should, without warning, appear in one of the remote harbors with a powerful fleet and at
once begin to land troops. The governor or military commander of the particular district or
province notifies the Governor-General by telegraph of this landing of troops and that the
people of the district are in collusion with such invasion. Might not the Governor-General
and the Commission accept this telegram as sufficient evidence and proof of the facts
communicated and at once take steps, even to the extent of suspending the privilege of
the writ of habeas corpus, as might appear to them to be necessary to repel such
invasion? It seems that all men interested in the maintenance and stability of the
Government would answer this question in the affirmative.
But suppose some one, who has been arrested in the district upon the ground that his
detention would assist in restoring order and in repelling the invasion, applies for the writ
of habeas corpus, alleging that no invasion actually exists; may the judicial department of
the Government call the officers actually engaged in the field before it and away from their
posts of duty for the purpose of explaining and furnishing proof to it concerning the
existence or nonexistence of the facts proclaimed to exist by the legislative and executive
branches of the State? If so, then the courts may effectually tie the hands of the
executive, whose special duty it is to enforce the laws and maintain order, until the
invaders have actually accomplished their purpose. the interpretation contended for here
by the applicants, so pregnant with detrimental results, could not have been intended by
the Congress of the United States when it enacted the law.
It is the duty of the legislative branch of the Government to make such laws and
regulations as will effectually conserve peace and good order and protect the lives and
property of the citizens of the State. It is the duty of the Governor-General to take such
steps as he deems wise and necessary for the purpose of enforcing such laws. Every delay
and hindrance and obstacle which prevents a strict enforcement of laws under the
conditions mentioned necessarily tend to jeopardize public interests and the safety of the
whole people. If the judicial department of the Government, or any officer in the
Government, has a right to contest the orders of the President or of the Governor-General
under the conditions above supposed, before complying with such orders, then the hands
of the President or the Governor-General may be tied until the very object of the rebels
or insurrectos or invaders has been accomplished. But it is urged that the president, or the
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Governor-General with the approval of the Philippine Commission, might be mistaken as to
the actual conditions; that the legislative department — the Philippine
Commission — might, by resolution, declare after investigation, that a state of rebellion,
insurrection, or invasion exists, and that the public safety requires the suspension of the
privilege of the writ of habeas corpus, when, as a matter of fact, no such conditions
actually existed; that the President, or Governor-General acting upon the authority of the
Philippine commission, might by proclamation suspend the privilege of the writ of habeas
corpus without there actually existing the conditions mentioned in the act of Congress. In
other words, the applicants allege in their argument in support of their application for the
writ of habeas corpus, that the legislative and executive branches of the Government
might reach a wrong conclusion from their investigations of the actual conditions, or
might, through a desire to oppress and harass the people, declare that a state of rebellion,
insurrection, or invasion existed and that public safety required the suspension of the
privilege of the writ of habeas corpus when actually and in fact no such conditions did
exist. We can not assume that the legislative and executive branches will act or take any
action based upon such motives.
Moreover it can not be assumed that the legislative and executive branches of the
Government, with all the machinery which those branches have at their command for
examining into the conditions in any part of the Archipelago, will fail to obtain all existing
information concerning actual conditions. It is the duty of the executive branch of the
Government to constantly inform the legislative branch of the Government of the condition
of the Union as to the prevalence of peace or disorder. The executive branch of the
government, through its numerous branches of the civil and military, ramifies every
portion of the Archipelago, and is enabled thereby to obtain information from every
quarter and corner of the State. Can the judicial department of the Government, with its
very limited machinery for the purpose of investigating general conditions, be any more
sure of ascertaining the true conditions throughout the Archipelago, or in any particular
district, than the other branches of the Government? We think not.
We are of the opinion that the only question which this department of the Government can
go into with reference to the particular questions submitted here are as follows:
(1) Admitting the fact that Congress had authority to confer upon the President or the
Governor-General and the Philippine Commission authority to suspend the privilege of the
writ of habeas corpus, was such authority actually conferred? and
(2) Did the Governor-General and the Philippine Commission, acting under such authority,
act in conformance with such authority?
If we find that Congress did confer such authority and that the Governor-General and the
Philippine Commission acted in conformance with such authority, then this branch of the
Government is excluded from an investigation of the facts upon which the Governor-
General and the Philippine Commission acted, and upon which they based the resolution of
January 31, 1905, and the executive order of the Governor-General of the same
date. Under the form of government established in the Philippine Islands, one department
of the Government has no power or authority to inquire into the acts of another, which
acts are performed within the discretion of the other department.
Upon an examination of the law we conclude:
First. That the paragraph of section 5, above quoted, of the act of Congress of July
1, 1902, confers upon the Governor-General and the Philippine Commission the right to
suspend the privilege of the writ of habeas corpusunder the conditions therein named.
Second. That the Philippine Commission, acting within the discretion which such
act of Congress confers upon them, did authorize the Governor-General, by its resolution
of January 31, 1905, to suspend the privilege of the writ of habeas corpus in the manner
and form indicated in the said executive order of the Governor-General of January 31,
1905.
The said resolution of the Philippine Commission has the effect of law for the purposes for
which it was enacted. The judicial department of the Government may examine every law
enacted by the legislative branch of the Government for the purpose of ascertaining:
(a) Whether or not such law came within the subject-matter upon which the
legislative branch of the Government might legislate; and
(b) Whether the provisions of such law were in harmony with the authority given
the legislature.
If the judicial branch of the Government finds —
(a) That the legislative branch of the Government had authority to legislate upon
the particular subject; and
(b) That the particular law contained no provisions in excess of such department,
then that investigation, or that conclusion, conclusively terminates the investigation by
this department of the Government.
We base our conclusions that this application should be denied upon the following facts:
First. Congress had authority to provide that the President, or the Governor-
General, with the approval of the Philippine Commission, might suspend the privilege of
the writ of habeas corpus in cases of rebellion, insurrection, or invasion, when the public
safety might require it.
Second. That the Philippine Commission, acting within this power, had authority to pass
the resolution above quoted, of January 31, 1905, after an investigation of the conditions.
Third. That by virtue of said act of Congress, together with said resolution of the
Philippine commission, the Governor-General had authority to issue the said executive
order of January 31, 1905, suspending the privilege of the writ of habeas corpus.
Fourth. That the conclusion set forth in the said resolution and the said executive
order, as to the fact that there existed in the Provinces of Cavite and Batangas open
insurrection against the constituted authorities, was a conclusion entirely within the
discretion of the legislative and executive branches of the Government, after an
investigation of the facts.
Fifth. That one branch of the United States Government in the Philippine Islands
has no right to interfere or inquire into, for the purpose of nullifying the same, the
discretionary acts of another independent department of the Government.
Sixth. Whenever a statute gives to a person or a department of the Government
discretionary power, to be exercised by him or it, upon his or its opinion of certain facts,
such statute constitutes him or it the sole and exclusive judge of the existence of those
facts.
Seventh. The act of Congress gave to the President, or the Governor-General with
the approval of the Philippine Commission, the sole power to decide whether a state of
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rebellion, insurrection, or invasion existed in the Philippine Archipelago, and whether or
not the public safety required the suspension of the privilege of the writ of habeas corpus.
Eighth. This power having been given and exercised in the manner above
indicated, we hold that such authority is exclusively vested in the legislative and executive
branches of the Government and their decision is final and conclusive upon this
department of the Government and upon all persons.
Happily we are not without high authority to support the foregoing conclusions. This is not
the first time this same question has been presented in one form or another to the judicial
department of the Government of the United States, as well as to the Government of the
various States of the Union.
The same general question presented here was presented to the Supreme Court of the
United States in the case of Martin vs. Mott, in January, 1827. An act of Congress of 1795
provided —
That whenever the United States shall be invaded or be in imminent danger of
invasion from any foreign nation or Indian tribe, it shall be lawful for the President
of the United States to call forth such number of the militia of the State or States
most convenient to the place of danger or scene of action, as he may judge
necessary to repel such invasion, and to issue his orders for that purpose to such
officer or officers of the militia as he shall think proper.
In this case (Martin vs. Mott) the question was presented to the court whether or not the
President's action in calling out the militia was conclusive against the courts. The Supreme
Court of the United States, in answering this question, said:
The power thus confided by Congress to the President is, doubtless, of a very high
and delicate nature. A free people are naturally jealous of the exercise of military
power; and the power to call the militia into actual service is certainly felt to be
one of no ordinary magnitude. But it is not a power which can be executed without
corresponding responsibility. It is, in its terms, a limited power, confined to cases
of actual invasion, or of imminent danger of invasion. If it be a limited power, the
question arises, By whom is the exigency to be adjudged of and decided? is the
President the sole and exclusive judge whether the exigency has arisen, or is it to
be considered as an open question, upon which every officer to whom the orders
of the President are addressed, may decide for himself, and equally open to be
contested by every militiaman who shall refuse to obey the orders of the
President? We are all of the opinion that the authority to decide whether the
exigency has arisen belongs exclusively to the President and his decision is
conclusive upon all other persons. We think that this construction necessarily
results from the nature of the power itself and from the manifest object
contemplated by the act of Congress. The power itself is to be exercised upon
sudden emergencies, upon great occasions of state and under circumstances
which may be vital to the existence of the Union. ... If a superior officer has a right
to contest the orders of the President, upon his own doubts as to the exigency
having arisen, it must be equally the right of every inferior officer and soldier ... .
Such a course would be subversive of all discipline and expose the best disposed
officer to the chances of erroneous litigation. Besides, in many instances, the
evidence upon which the President might decide that there is imminent danger of
invasion might be of a nature not constituting strict technical proof, or the
disclosure of the evidence might reveal important secrets of state which the public
interest and even safety might imperiously demand to be kept in concealment.
Whenever the statute gives a discretionary power to any person, to be exercised
by him upon his own opinion of certain facts, it is a sound rule of construction that
the statute constitutes him the sole and exclusive judge of the existence of those
facts. And in the present case we are all of opinion that such is the true
construction of the act of 1795. It is no answer that such power may be abused,
for there is no power which is not susceptible of abuse. (Martin vs. Mott, 12
Wheat., 19 (25 U.S.); Vanderheyden vs. Young, 11 Johns., N.Y., 150.)
Justice Joseph Story, for many years a member of the Supreme Court of the United
States, in discussing the question who may suspend the privilege of the writ of habeas
corpus, under the Constitution of the United States, said:
It would seem, as the power is given to Congress to suspend the writ of habeas
corpus in cases of rebellion, insurrection, or invasion, that the right to judge
whether the exigency has arisen must conclusively belong to that body. (Story on
the Constitution, 5th ed., sec. 1342.)
Justice James Kent, for many years a justice of the supreme court of the State of New
York, in discussing the same question, cites the case of Martin vs. Mott, and says:
In that case it was decided and settled by the Supreme Court of the United States
that it belonged exclusively to the President to judge when the exigency arises in
which he had authority, under the Constitution, to call forth the militia, and that
his decision was conclusive upon all other persons. (Kent's Commentaries, 14th
ed., vol. 1, bottom p. 323.)
John Randolph Tucker, for many years a professor of constitutional and international law
in Washington and Lee University, in discussing this question said:
By an act passed in 1795 Congress gave to the President power to call out the
militia for certain purposes, and by subsequent acts, in 1807, power was given to
him to be exercised whenever he should deem it necessary, for the purposes
stated in the Constitution; and the Supreme Court (United States) has decided
that this executive discretion in making the call (for State militia) could not be
judicially questioned. (Tucker on the Constitution, Vol. II, p. 581.)
John Norton Pomeroy, an eminent law writer upon constitutional questions, said:
In Martin vs. Mott it was decided that under the authority given to the President
by the statute of 1795, calling forth the militia under certain circumstances, the
power is exclusively vested in him to determine whether those circumstances
exist; and when he has determined by issuing his call, no court can question his
decision." (Pomeroy's Constitutional Law, sec. 476.)
Henry Campbell Black, a well-known writer on the Constitution, says:
By an early act of Congress it was provided that in case of an insurrection in any
State against the government thereof, it shall be lawful for the President of the
United States, on application of the legislature of such State, or of the executive
(when the legislature can not be convened), to call forth such a number of the
militia of any other State or States as may be applied for, as he may judge
sufficient to suppress such insurrection. By this act the power of deciding whether
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 the exigency has arisen upon which the Government of the United States is bound
to interfere is given to the President. (Black's Constitutional Law, p. 102.)
Judge Thomas M. Cooley, in discussing the right of the judicial department of the
Government to interfere with the discretionary action of the other departments of the
Government, in his work on constitutional law, said:
Congress may confer upon the President the power to call them (the militia) forth,
and this makes him the exclusive judge whether the exigency has arisen for the
exercise of the authority and renders one who refuses to obey the call liable to
punishment under military law. (Cooley's Principles of Constitutional Law, p. 100.)
But it may be argued by those who contend for the contrary doctrine, to wit, that the acts
of the Governor-General, with the approval of the Philippine Commission, are not
conclusive upon the courts and that none of the foregoing citations are exactly in point,
that none of these cases or authors treat of a case exactly like the one presented. We are
fortunate, however, in being able to cite, in answer to that contention, the case of Henry
William Boyle, where exactly the same question was presented to the supreme court of
the State of Idaho, which the applicants present here and where the courts held the
doctrine of the cases applied. In the case of Boyle, he had been arrested after the privilege
of the writ of habeas corpus had been suspended. He applied for a writ of habeas
corpus to the supreme court of Idaho, alleging, among other things, in his application:
First. That "no insurrection, riot, or rebellion now exists in Shoshone County;" and
Second. That "the Governor has no authority to proclaim martial law or suspend the writ
of habeas corpus."
In reply to this contention on the part of the applicant, Boyle, the court said:
Counsel have argued ably and ingeniously upon the question as to whether the
authority to suspend the writ of habeas corpus rests with the legislative and
executive powers of the Government, but, from our views of this case, that
question cuts no figure. We are of the opinion that whenever, for the purpose of
putting down insurrection or rebellion, the exigencies of the case demand it, with
the successful accomplishment of this end in view, it is entirely competent for the
executive or for the military officer in command, if there be such, either to
suspend the writ or disregard it if issued. The statutes of this State (Idaho) make
it the duty of the governor, whenever such a state or condition exists as the
proclamation of the governor shows does exist in Shoshone County, to proclaim
such locality in a state of insurrection and to call in the aid of the military of the
State or of the Federal Government to suppress such insurrection and reestablish
permanently the ascendency of the law. It would be an absurdity to say that the
action of the executive, under such circumstance, may be negatived and set at
naught by the judiciary, or that the action of the executive may be interfered with
or impugned by the judiciary. If the courts are to be made a sanctuary, a seat of
refuge whereunto malefactors may fall for protection from punishment justly due
for the commission of crime they will soon cease to be that palladium of the rights
of the citizen so ably described by counsel.
On application for a writ of habeas corpus, the truth of recitals of alleged facts in a
proclamation issued by the governor proclaiming a certain county to be in a state
of insurrection and rebellion will not be inquired into or reviewed. The action of the
governor in declaring Shoshone County to be in state of insurrection and rebellion,
and his action in calling to his aid the military forces of the United States for the
purpose of restoring good order and the supremacy of the law, has the effect to
put in force, to a limited extent, martial law in said county. Such action is not in
violation of the Constitution, but in harmony with it, being necessary for the
preservation of government. In such case the Government may, like an individual
acting in self-defense, take those steps necessary to preserve its existence. If
hundreds of men can assemble themselves and destroy property and kill and
injure citizens, thus defeating the ends of government, and the Government is
unable to take all lawful and necessary steps to restore law and maintain order,
the State will then be impotent if not entirely destroyed, and anarchy placed in its
stead.
It having been demonstrated to the satisfaction of the governor, after some six or
seven years of experience, that the execution of the laws in Shoshone County
through the ordinary and established means and methods was rendered
practicably impossible, it became his duty to adopt the means prescribed by the
statute for establishing in said county the supremacy of the law and insuring the
punishment of those by whose unlawful and criminal acts such a condition of
things has been brought about; and it is not the province of the courts to interfere,
delay, or place obstructions in the path of duty prescribed by law for the
executive, but rather to render him all the aid and assistance in their power, in his
efforts to bring about the consummation most devoutly prayed for by every good,
law-abiding citizen in the State. (In re Boyle, 45 L.R.A., 1899, 832.)
The doctrine that whenever the Constitution or a statute gives a discretionary power to
any person, to be exercised by him upon his own opinion of certain facts, such person is to
be considered the sole and exclusive judge of the existence of those facts, has been
recognized, not only by the Supreme Court of the United States but by practically all of the
supreme courts of the different States, and has never been disputed by any respectable
authority. The following cases are cited in support of this doctrine:
Martin vs. Mott (1827), 12 Wheat., 19 (25 U. S. Rep.).
Luther vs. Borden (1849), 7 How., 44, 77.
Wilkes vs. Dinsman (1849), 7 How., 130, 131.
Murray vs. Hoboken, etc., Co. (1855), 18 How., 280.
United States vs. Speed (1868), 8 Wall., 83.
Mullan vs. United States (1890), 140 U.S., 245.
Nishimura Ekiu vs. United States (1891), 142 U.S., 660.
Lem Moon Sing vs. United States (1894), 158 U.S., 538.
Ex parte Field (1862), 5 Blatch., 77, 81 (Fed. Case No. 4761).
Allen vs. Blunt, 3 Story, 745 (Fed. Case No. 216).
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 Gould vs. Hammond, 1 McAll., 237, 239 (Fed. Case 5638).
United States vs. Packages (1862), 27 Fed. Case, 288, 289.
United States vs. Cement (1862), 27 Fed. Case, 293.
United States vs. Cotton (1872), 27 Fed. Case, 325, 328.
United States vs. Tropic Wind, 28 Fed. Case, 221.
In re Day, 27 Fed. Rep., 680.
Hammer vs. Mason, 24 Ala., 485.
People vs. Pacheco (1865), 27 Cal., 223.
Porter vs. Haight (1873), 45 Cal., 639.
Evansville and C. Ry. Co. vs Evansville, 15 Ind., 421.
Koehler vs. Hill, 60 Ia., 566.
People vs. Wayne (1878), 39 Mich., 20.
State vs. Town of Lime (1877), 23 Minn., 526.
People vs. Parker, 3 Nebraska, 432.
Kneedler vs. Lane (1863), 45 Penn. St., 292.
In re Legislative Adjournment (1893), 18 Rhode Island, 834; 22 L.R.A., 716.
Chapin vs. Ferry (1891), 3 Washington, 396; 28 Pac. Rep., 758; 15 L.R.A., 120.
Druecker vs. Solomon, 21 Wis., 621; 94 Am. Dec., 571.
People vs. Bissell (1857), 19 Ill., 229, 232, 233.
Sutherland vs. Governor (1874) 29 Mich., 320, 330.
Ambler vs. Auditor-General (1878), 38 Mich., 746, 751.
State vs. Warmoth (1870), 22 La. An. Rep., 1; 13 Am. Rep., 126.
Jonesboro, etc., Co. vs. Brown (1875), 8 Baxter (Tenn.) 490; 35 Am. Rep., 713.
In the case of the United States vs. Packages, above cited, the court, in discussing the
authority of the judicial department of the Government to interfere with the discretionary
powers of the executive and legislative, said:
The doctrine involved has been fully discussed in several cases decided by this court
during the last fifteen months, and was virtually settled long ago by the United States
Supreme Court. The judiciary, under the Constitution, can not declare war or make peace.
It is clothed with no such power, and can not be clothed with it. Whatever power is vested
by the Constitution in one department of the Government can not be usurped by another.
If one should wholly refuse to act, or should undertake to divest itself, or abdicate its
legitimate functions, it would by no means follow that another department, expressly
limited to specific duties, would thereby acquire ungranted powers. The abdication of
executive functions by the executive, for instance, would not constitute the judicial the
executive department of the country; nor would a failure or refusal of the legislative to
pass needed statutes constitute the executive the law-making power. Each department
has its true boundaries prescribed by the Constitution, and it can not travel beyond them.
(United States vs. Ferreira (1851), 13 How., 40; Little vs. Barreme (1804), 2 Cranch,
170.)
The condition of peace or war, public or civil, in a legal sense, must be determined
by the political department, not the judicial. The latter is bound by the decision
thus made. The act of 1795 and the act of July 13, 1861, vests the President with
the power to determine when insurrection exists, and to what extent it exists. The
United States Constitution vests Congress with the power "to provide for calling
forth the militia to execute the laws of the Union, to suppress insurrection, and
repel invasion; to declare war ... and make rules concerning captures on land and
water." In the execution of that power, Congress passed the act cited above.
By the act of 1795 the Supreme Court says: "The power of deciding whether the
exigency had arisen upon which the Government of the United States is bound to
interfere, is given to the President." ... After the President has acted, is a circuit
court of the United States authorized to inquire whether his decision was right?
could the court, while the parties were actually contending in arms for the
possession of the government, call witnesses before it and inquire which party
represented a majority of the people? ... If the judicial power extends so far, the
guaranty contained in the Constitution of the United States is a guaranty of
anarchy, and not of order. yet if this right does not reside in the courts when the
conflict is raging; if the judicial power is at that time bound to follow the decision
of the political (department of the Government), it must be equally bound when
the contest is over. At all events, it (the power to decide) is conferred upon him
(the President) by the Constitution and laws of the United States, and must
therefore be respected and enforced in its judicial tribunals. (Luther vs. Borden
(1849), 7 How., 43, 44; Martin vs. Mott (1827), 12 Wheat., 29-31.)
The same doctrine has been uniformly maintained from the commencement of the
Government. The absurdity of any other rule is manifest. If during the actual clash of arms
the courts were rightfully hearing evidence as to the fact of war, and, either with or
without the said juries, determining the question, they should have power to enforce their
decisions. In case of foreign conflicts neither belligerent would be likely to yield to the
decision; and, in case of insurrection, the insurgents would not cease their rebellion in
obedience to a judicial decree. In short, the status of the country as to peace or war is
legally determined by the political (department of the Government) and not by the judicial
department. When the decision is made the courts are concluded thereby, and bound to
apply the legal rules which belong to that condition. The same power which determines
the existence of war or insurrection must also decide when hostilities have ceased — that
is, when peace is restored. In a legal sense the state of war or peace is not a question in
pais for courts to determine. It is a legal fact, ascertainable only from the decision of the
political department. (The Fortuna (1818), 3 Wheat., 236; United States vs. Palmer
(1818), 3 Wheat., 610; Nuestra Señora, etc. (1819), 4 Wheat., 497; Santissima Trinidad
(1822), 7 Wheat., 283; Rose vs. Himely (1806), 4 Cranch, 241; Foster vs. Neilson (1829),
2 Peters, 253.)
Under the act of Congress of July 13, 1861, the President of the United States, on the 16th
day of August, 1861, proclaimed that the State of Tennessee was in a state of
insurrection. The courts, in discussing the right of the President to decide upon the
necessities of such proclamation and the period within which it should continue, said:
The legal status thus determined must remain so long as the condition of
hostilities continues. He (the President) has never made a counter proclamation,
nor has peace been officially announced. As a legal condition that status (of
insurrection) is independent of actual daily strife in arms. A legal condition of
hostilities may exist long after the last battle has been fought between the
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 opposing armies. That condition (of insurrection or rebellion) ceases when peace is
concluded through competent authority; not before. ... Within any construction
which could be very well given to the President's proclamation, no part of that
State (Tennessee) maintains as yet a loyal adhesion to the Union and Constitution.
It is the duty of the President, however, to decide that point. Until he declares to
the contrary, the court must hold that the legal condition of hostility continues.
The exceptions in the proclamation, so far as made by the President, courts can
and must enforce. But if it be correct that by the terms of that proclamation the
President intended to devolve on the courts the duty of determining judicially the
status of a State or part of a State by an inquiry into its loyalty, or its occupation
from time to time by the United States forces irrespective of a decision thereon by
the executive, still courts could not then acquire the power. The limits upon their
constitutional and legal functions could not thus be enlarged. Political power could
not be so delegated to the courts. They (the courts) can not be charged with any
duties not judicial; "judicial power" alone is invested in them (the courts) under
the Constitution. (United States vs. Packages (1862), 27 Fed. Case, 288, 289.)"
In the case of Druecker vs. Solomon (21 Wis., 621; 94 Am. Dec., 571, 576, 577) the
supreme court of Wisconsin, in an action for false imprisonment for the arrest and
detention during a state of insurrection, etc., the court cites and approves of the doctrine
laid down by the Supreme Court of the United States in the case of Martin vs. Mott (12
Wheat., 19) and holds that the action of the political department of the Government in
such cases is final and conclusive against the judicial department.
John Marshall, for many years Chief Justice of the Supreme Court of the United States, in
discussing the rights of one department of the Government to interfere with the
discretionary powers of another, said, in the case of Marbury vs. Madison ( [1803], 1
Cranch, 137, 164):
By the Constitution of the United States the President is invested with certain
important political powers, in the exercise of which he has to use his own
discretion, and is accountable only to his country in his political character, and to
his own conscience. ... The subjects are political; they respect the nation, not
individual rights, and, being intrusted to the executive, the decision of the
executive is conclusive. The application of this remark will be received by
adverting to the act of congress for establishing the department of foreign affairs.
This officer, as his duties were prescribed by that act, is to conform precisely to
the will of the President; he is the mere organ by whom that will is communicated.
The acts of such an officer, as an officer, can never be examinable by the courts.
... The conclusion from this reasoning is that where the heads of departments are
the political or confidential agents of the executive, merely to execute the will of
the President or rather to act in cases in which the executive possesses a
constitutional or a legal discretion, nothing can be more perfectly clear than that
their acts are only politically examinable.
In the case of Rice vs. Austin (19 Minn., 103) the supreme court of Minnesota held that
"the judicial and executive departments of the government are distinct and independent
and neither is responsible to the other for the performance of its duties and neither can
enforce the performance of the duties of the other." It may be said that in Minnesota this
decision was based upon a constitutional provision. This is true, but the fact that the
people of the State of Minnesota, by constitutional provision prohibited one independent
department of the government from interfering or attempting to administer the duties of
another, all the more reenforces the doctrine contended for here. Many of the States do
permit the judicial department by mandamus to direct the executive department to
perform purely ministerial duties. In Minnesota, however, the judicial department will not
attempt to coerce the performance of even ministerial duties on the part of the executive.
In the case of Luther vs. Borden (7 How., 44) it was held that the decision and
determination of matters of a purely political character by the executive or legislative
department of the Government was binding on every other department of the Government
and could not be questioned by a judicial tribunal. The dangers and difficulties which
would grow out of the adoption of a contrary rule are by Chief Justice Taney in this case
clearly and ably pointed out. Chief Justice Taney, referring to the power given to the
President with reference to the right to decide whether it was necessary, on account of a
possible invasion, to call out the militia, said:
By this act (act of Congress of 1795) the power of deciding whether the exigency
had arisen upon which the Government of the United States is bound to interfere
is given to the President. ... After the President has acted and called out the
militia, is a circuit court of the United States authorized to inquire whether his
decision is right? Could the court, while the parties were actually contending in
arms for the possession of the government, call witnesses before it and inquire
which party represented the majority of the people? If it could, then it would
become the duty of the court (provided it came to the conclusion that the
President had decided incorrectly) to discharge those who were arrested or
detained by the troops in the service of the United States or the government which
the President was endeavoring to maintain. If the judicial power extends so far,
the guaranty contained in the Constitution of the United States is a guaranty of
anarchy and not of order. Yet if this right does not reside in the court when the
conflict is raging, if the judicial power is at that time bound to follow the decision
of the political, it must be equally bound when the contest is over. . . .
It is said that this power in the President is dangerous to liberty and may be
abused. All power may be abused if placed in unworthy hands; but it would be
difficult, we think, to point out any other hands in which this power would be more
safe, and at the same time equally effectual. When citizens of the same State are
in arms against each other, and the constituted authorities unable to execute the
laws, the interposition of the United States must be prompt or it is of little value.
The ordinary course of proceedings in the courts of justice would be utterly unfit
for the crisis, and the elevated office of the President, chosen as he is by the
people of the United States, and the high responsibility he could not fail to feel
when acting in a case of so much moment, appear to furnish as strong safeguards
against the willful abuse of power as human prudence and foresight could well
provide. At all events it is conferred upon him by the Constitution and laws of the
United States and must, therefore, be respected and enforced in its judicial
tribunals.
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Chief Justice Taney here cites approvingly the case of Martin vs. Mott.
In the case of Franklin vs. State Board Examiners (23 Cal., 173, 178) the supreme court
of California decided —
That the political department of a State government is the sole judge of the
existence of war or insurrection, and, when it declares either of these emergencies
to exist, its action is not subject to review or liable to be controlled by the judicial
department of the State.
In this case the court cited the cases of Martin vs. Mott and Luther vs. Borden.
This same doctrine was again recognized by the supreme court of California in the case of
the People vs. Pacheco (27 Cal., 175, 223), not only resting its decision upon the case of
Franklin vs. State Board of Examiners but also again cited and confirmed the case of
Martin vs. Mott, Luther vs. Borden, and Vanderheyden vs. Young (11 Johns (N.Y.), 159).
Chief Justice Marshall, in the case of McCullough vs. State of Maryland (4 Wheat, 316),
says:
We think the sound construction of the Constitution must allow the national
legislature that discretion with respect to the means by which the powers it
confers are carried into execution which will enable that body to perform the high
duties assigned to it in the manner most beneficial to the people. ... Such being
the case, the determination of these questions by the political department of the
Government must also necessarily be conclusive.
Chief Justice Taney, in the case of ex parte Merryman, 17 Federal Cases, 144 (Fed. Case
No. 9487), said, in speaking of the power of the courts:
It is true that in the case mentioned Congress is of necessity the judge of whether
the public safety does or does not require it (the suspension of the writ of habeas
corpus), and their judgment is conclusive.
Chief Justice Taney, in the same decision, quotes the following language of Mr. Justice
Story approvingly:
It would seem as the power is given to Congress to suspend the writ of habeas
corpus in cases of rebellion or invasion, that the right to judge whether the
exigency had arisen must exclusively belong to that body.
In the case of McCall vs. McDowell, 15 Fed. Cases, 1235 (Fed. Case No. 8673), Judge
Deady said:
When the occasion arises — rebellion or invasion — whether the "public service"
requires the suspension of the writ or not is confided to the judgment of Congress,
and their action in the premises is conclusive upon all courts and persons. . . .
The suspension enables the executive, without interference from the courts or the
law, to arrest and imprison persons against whom no legal crime can be proved,
but who may, nevertheless, be effectively engaged in forming the rebellion or
inviting the invasion, to the imminent danger of the public safety.
In the case of Ex parte Field (5 Blatchford, 63) this same question arose in the State of
Vermont, and the supreme court of that State, relying upon the decision of Mr. Justice
Story in Luther vs. Borden and that of Chief Justice Taney in Martin vs. Mott, decided that
the President is the exclusive judge of the existence of the exigency authorizing him to call
forth the militia and declare martial law, in pursuance of the power conferred on him by
the act of Congress of 1795.
Judge Emmons, in the case of United States vs. 1,500 Bales of Cotton (Fed. Case No.
15958), in discussing this general question, said, quoting from a decision of Chief Justice
Chase:
The belligerent relation having once been recognized by the political power, all the
people of each State or district in insurrection must be regarded as enemies until,
by the action of the legislature and executive, that relation is thoroughly and
permanently changed. . . .
The statute devolved upon the President the political duty of determining whether
armed force should be called out to put down insurrection in the States. It was for
him to decide when the exigency occurred. The courts had no concern with it. ...
Whether there was any necessity for the exercise of the power of the President to
call out the militia the court could not determine. His decision was final ... If the
judicial power were thus extended, the guaranty in the Constitution of a republican
form of government was a guaranty of anarchy, not of order. Equally incongruous
results would follow if the courts instead of the Government, were to decide when
hostilities are ended and when trade and intercourse should be resumed.
Not only has it been decided in numerous cases that the power to call out the militia and
to suspend the writ of habeas corpus is entirely within the discretion of the legislative and
executive branches of the Government, but, when the executive and legislative
departments have decided that the conditions exist justifying these acts, the court will
presume that such conditions continue to exist until the same authority (legislative, etc.)
has decided that such conditions no longer exist.
Judge Dillon, in the case of Philips vs. Hatch (Fed. Case No. 11094, said:
From the nature of the question, from the fair implication of the act of July 13,
1862 (an act authorizing the suspension of the writ of habeas corpus), from the
confusion that would ensue from any other rule, it is the opinion of the court that
the rebellion must be considered as in existence until the President declared it at
an end in a proclamation.
Judge Emmons, in the above case, discussing this same question, said:
These unquestioned doctrines have not been extemporized for the modern and
exceptional exigencies of the late rebellion. They belong to the jurisprudence of all
countries and were adopted as part of that of our own from its earliest history. Our
most conservative judges, Marshall, Story, and Taney, have been foremost in
announcing them. No citizen would challenge the justness and necessity of this
rule. Judges have their peculiar duties which, if faithfully and learned studied, have
little tendency to make them familiar with current and rapidly changing conditions
upon which depend the important political question of whether it is safe to relax,
on the instant, military rule and restore intercourse and trade.
The following cases are also cited:
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 Brown vs. Hiatt, Fed. Case No. 2011.
United States vs. 100 Barrels of Cement, Fed. Case No. 15945.
Gelston vs. Hoyt, 3 Wheat., 246.
The Divina Pastora, 4 Wheat., 52.
The Santissima Trinidad, 7 Wheat., 283.
Rose vs. Himely, 4 Cranch, 241.
Garcia vs. Lee, 12 Peters, 511.
Stewart vs. Kahn, 11 Wallace, 493.
Mrs. Alexander's Cotton, 2 Wallace, 404.
For a general discussion, see Sixth American Law Register, 766; 4 Chicago Legal News,
245.
No Government, past or present, has more carefully and watchfully guarded and
protected, by law, the individual rights of life and property of its citizens than the
Government of the United States and of the various States of the Union. Each of the three
departments of the Government has had separate and distinct functions to perform in this
great labor. The history of the United States, covering more than a century and a quarter,
discloses the fact that each department has performed its part well. No one department of
the Government can or ever has claimed, within its discretionary power, a greater zeal
than the others in its desire to promote the welfare of the individual citizen. They are all
joined together in their respective spheres, harmoniously working to maintain good
government, peace, and order, to the end that the rights of each citizen be equally
protected. No one department can claim that it has a monopoly of these benign purposes
of the Government. Each department has an exclusive field within which it can perform its
part, within certain discretionary limits. No other department can claim a right to enter
these discretionary limits and assume to act there. No presumption of an abuse of these
discretionary powers by one department will be considered or entertained by another.
Such conduct on the part of one department, instead of tending to conserve the
Government and the right of the people, would directly tend to destroy the confidence of
the people in the Government and to undermine the very foundations of the Government
itself.
For all of the foregoing reasons, the application for the writ of habeas corpus should be
denied, and it is so ordered.
G.R. No. L-4221 August 30, 1952
MARCELO D. MONTENEGRO, petitioner-appellant,
vs.
GEN. MARIANO CASTAÑEDA, and COLONEL EULOGIO BALAO, respondents-
appellees.
BENGZON, J.:
The purpose of this appeal from the Court of First Instance of Quezon City is to test the
validity of Proclamation No. 210 suspending the privilege of the writ of habeas corpus.
A few months ago the same proclamation came up for discussion in connection with the
request for bail of some prisoners charged with rebellion.1 The divided opinion of this
Court did not squarely pass on the validity of the proclamation; but, assuming it was
obligatory, both sides proceeds to determine its effect upon the right of which prisoners to
go on bail.
This decision will now consider the points debated regarding the aforesaid residential
order.
The facts are few and simple: About five o'clock in the morning of October 18, 1950,
Maximino Montenegro was arrested with others at the Samanillo Bldg. Manila, by agents of
the Military Intelligence Service of the Armed Forces of the Philippines, for complicity with
a communistic organization in the commission of acts of rebellion, insurrection or sedition.
So far as the record discloses, he is still under arrest in the custody by respondents. On
October 22, 1950, The President issued Proclamation No. 210 suspending the privilege of
the writ of habeas corpus. On October 21, 1950, Maximino's father, the petitioner,
submitted this application for a writ of habeas corpus seeking the release of his son.
Opposing the writ, respondents admitted having the body of Maximino, but questioned
judicial authority to go further in the matter, invoking the above-mentioned proclamation.
Petitioner replied that such proclamation was void, and that, anyway, it did not apply to
his son, who had been arrested before its promulgation. Heeding the suspension order,
the court of first instance denied the release prayed for. Hence this appeal, founded
mainly on the petitioner's propositions:.
(a) The proclamation is unconstitutional "because it partakes of bill of attainder, or an ex
post facto law; and unlawfully includes sedition which under the Constitution is not a
ground for suspension";
(b) Supposing the proclamation is valid, no prima facie.
(c) "There is no state of invasion, insurrection or rebellion, or imminent danger thereof,"
the only situations permitting discontinuance of the writ of habeas corpus; showing was
made that the petitioner's son was included within the terms thereof.
Proclamation No. 210 reads partly as follows:
WHEREAS, lawless elements of the country have committed overt acts of sedition,
insurrection and rebellion for the purpose of overthrowing the duly constituted
authorities and in pursuance thereof, have created a state of lawlessness and
disorder affecting public safety and the security of the state;
WHEREAS, these acts of sedition, insurrection, and rebellion consisting of armed
raids, sorties, and ambushes and the wanton acts of murder, rape, spoilage,
looting, arson, planned destruction of public and private buildings, and attacks
against police and constabulary detachments, as well as against civilian lives and
properties as reported by the Commanding General of the Armed Forces, have
seriously endangered and still continue to endanger the public safety;
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 WHEREAS, these acts of sedition, insurrection and rebellion have been perpetrated
by various groups well organized for concerted actions and well armed with
machine guns, rifles, pistols and other automatic weapons, by reason whereof
there is actual danger of rebellion which may extend throughout the country;
Whereas, 100 leading members of these lawless elements have been apprehended
and the presently under detentions, and strong and convincing evidence has been
found in their possession to show that they are engaged in the rebellious, seditious
and otherwise subversive acts as above set forth; and
Whereas, public safety requires that immediate and effective action be taken to
insure the peace and security of the population and to maintain the authority of
the government;
NOW, THEREFORE, I, ELPIDIO QUIRINO, President of the Philippines, by virtue of
the powers vested upon me by article VII, section 10, paragraph (2) of the
Constitution, do hereby suspend the privilege of the writ of habeas corpus for the
persons presently detained, as well as all others who may be hereafter similarly
detained for the crimes of sedition, insurrection or rebellion, and or on the
occasion thereof, or incident thereto, or in connection therewith.
A. It is first argued that the proclamation is invalid because it "partakes" of a bill of
attainder or an ex post facto law, and violates the constitutional percept that no bill of
attainder or ex post facto law shall be passed. The argument is devoid of merit. The
prohibition applies only to statutes. U.S. vs. Gen. El., 80 Fed. Supp. 989; De Pass vs.
Bidwell, 24 Fed., 615.2 A bill of attainder is a legislative act which inflicts punishment
without judicial trial. (16 C.J.S. p. 902; U.S. vs. Lovett (1946) 328 U.S. 303). Anyway, if,
as we find, the stay of the writ was ordered in accordance with the powers expressly
vested in the President by the Constitution, such order must be deemed an exception to
the general prohibition against ex post facto laws and bills of attainder — supposing there
is a conflict between the prohibition and the suspension.
On the other hand there is no doubt it was erroneous to include those accused of sedition
among the persons as to whom suspension of the writ is decreed. Under the Constitution
the only grounds for suspension of the privilege of the writ are "invasion, insurrection,
rebellion or imminent danger thereof." Obviously, however, the inclusion of sedition does
not invalidate the entire proclamation; and it is immaterial in this case, inasmuch as the
petitioner's descendant is confined in jail not only for sedition, but for the graver offense
of rebellion and insurrection. Without doing violence to the presidential directive, but in
obedience to the supreme law of the land, the word "sedition" in Proclamation No. 210
should be deemed a mistake or surplusage that does not taint the decree as a whole.
B. In his second proposition appellant insists there is no state of invasion, insurrection,
rebellion or imminent danger thereof. "There are" he admits "intermittent sorties and
lightning attacks by organized bands in different places"; but, he argues, "such sorties are
occasional, localized and transitory. And the proclamation speaks no more than of overt of
insurrection and rebellion, not of cases of invasion, insurrection or rebellion or imminent
danger thereof." On this subject it is noted that the President concluded from the facts
recited in the proclamation, and the other connected therewith, that "there is actual
danger rebellion which may extend throughout the country." Such official declaration
implying much more than imminent danger of rebellion amply justifies the suspension of
the writ.
To the petitioner's unpracticed eye the repeated encounters between dissident elements
and military troops may seem sporadic, isolated, or casual. But the officers charged with
the Nation's security, analyzed the extent and pattern of such violent clashes and arrived
at the conclusion that they are warp and woof of a general scheme to overthrow his
government vi et armis, by force and arms.
And we agree with the Solicitor General that in the light of the views of the United States
Supreme Court thru, Marshall, Taney and Story quoted with approval in Barcelon vs.
Baker (5 Phil., 87, pp. 98 and 100) the authority to decide whenever the exigency has
arisen requiring the suspension belongs to the President and "his decision is final and
conclusive" upon the courts and upon all other persons.
Indeed as Justice Johnston said in that decision, whereas the Executive branch of the
Government is enabled thru its civil and military branches to obtain information about
peace and order from every quarter and corner of the nation, the judicial department, with
its very limited machinery can not be in better position to ascertain or evaluate the
conditions prevailing in the Archipelago.
But even supposing the President's appraisal of the situation is merely prima facie, we see
that petitioner in this litigation has failed to overcome the presumption of correctness
which the judiciary accords to acts of the Executive and Legislative Departments of our
Government.
C. The petitioner's last contention is that the respondents failed to establish that this son
is included within the terms of the proclamation.
On this topic, respondents' return officially informed the court that Maximino had been
arrested and was under custody for complicity in the commission of acts of rebellion,
insurrection and sedition against the Republic of the Philippines. Not having traversed that
allegation in time, petitioner must be deemed to have conceded it.
. . . In the absence of a denial, or appropriate pleading avoiding their effect,
averment of facts in the return will be taken as true and conclusive, regardless of
the allegations contained in the petition; and the only question for determination is
whether or not the facts stated in the return, as a matter of law, authorizes the
restraint under investigation. (39 C.J.S., 664-655.)
D. An interesting issue is posed by amici curiae. The Bill of Rights prohibits suspension of
the privilege of the writ of habeas corpus except when the public safety requires it, in
cases of (1) invasion (2) insurrection or (3) rebellion.
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Article VII Section 10 authorizes the President to suspend the privilege, when public safety
requires it, in cases of (1) invasion (2) insurrection or (3) rebellion or (4) imminent
danger thereof.
"Imminent danger," is no cause for suspension under the Bill of Rights. It is under Article
VII. To complicate matters, during the debates of the Constitutional Convention on the Bill
of Rights, particularly the suspension of the writ, the Convention voted down an
amendment adding a fourth cause of suspension: imminent danger of invasion,
insurrection of rebellion.
Professor Aruego a member of the Convention, describes the incident as follows:
During the debates on the first draft, Delegate Francisco proposed as an
amendment inserting, as a fourth cause for the suspension of the writ of habeas
corpus imminent danger of the three causes included herein. When submitted to a
vote for the first time, the amendment was carried.
After this motion for a reconsideration of the amendment was approved,
Delegate Orense spoke against the amendment alleging that it would be
dangerous to make imminent danger a ground for the suspension of the writ
of habeas corpus. In part, he said:
"Gentlemen, this phrase is too ambigous, and in the hands of a President
who believes himself more or less a dictator, it is extremely dangerous, it would be
a sword with which he would behead us.".
In defense of the amendment, Delegate Francisco pointed out that it was
intended to make this part of the bill of rights conform to that part of the draft
giving the President the power to suspend the writ of habeas corpusalso in the
case of an imminent danger of invasion or rebellion. When asked by Delegate
Rafols if the phrase, imminent danger, might not be struck out from this
corresponding provisions under the executive power instead, Delegate Francisco
answered:
"Outright, it is possible to eliminate the phrase, imminent danger thereof,
in the page I have mentioned. But I say, going to the essence of referring
exclusively to the necessity of including the words, of imminent danger of one or
the other, I wish to say the following: that it should not be necessary that there
exists a rebellion, insurrection or invasion in order that habeas corpus may be
suspended. It should be sufficient that there exists not a danger but an imminent
danger, and the word, imminent, should be maintained. When there exists an
imminent danger, the State requires for its protection and for that of all the
citizens the suspension of habeas corpus."
When put to vote for the second time, the amendment was defeated with
72 votes against and 56 votes in favor of the same. (I Aruego's Framing of the
Philippine Constitution, pp. 180-181)
Nevertheless when the President's specific powers under Article VII, were taken up
there was no objection to his authority to suspend in case of "imminent danger". (At least
we are not informed of any debate thereon.) Now then, what is the effect of the seeming
discrepancy?
Is the prohibition of suspension in the bill of rights to be interpreted as limiting
Legislative powers only — not executive measures under section VII? Has article VII (sec.
10) pro tanto modified the bill of rights in the same manner that a subsequent section of a
statue modifies a previous one?
The difference between the two constitutional provisions would seem to be:
whereas the bill of rights impliedly denies suspension in case of imminent dangers of
invasion etc., article VII sec. 10 expressly authorizes the President to suspend when there
is imminent danger of invasion etc.
The following statements in a footnote in Cooley's Constitutional limitations (8th
Ed.) p. 129, appear to be persuasive:
It is a general rule in the construction of writings, that, a general intent appearing,
it shall control the particular intent; but this rule must sometimes give way, and
effect must be given to a particular intent plainly expressed in one part of a
constitution, though apparently opposed to a general intent deduced from other
parts. Warren V. Shuman, 5 Tex. 441. In Quick V. Whitewater Township, 7 Ind.
570, it was said that if two provisions of a written constitutions are irreconcilably
repugnant, that which is last in order of time and in local position is to be
preferred. In Gulf, C. & S. F. Ry. Co. v. Rambolt, 67 tex. 654, 4 S.W. 356, this rule
was recognized as a last resort, but if the last provision is more comprehensive
and specific, it was held that it should be given effect on that ground.
And in Hoag vs. Washington Oregon Corp. (1915) 147 Pac. Rep., 756 at p. 763 it was
said:
It is a familiar rule of construction that, where two provisions of a written
Constitution are repugnant to each other, that which is last in order of time and in
local position is to be preferred. Quick v. White Water Township, 7 Ind., 570; G.,
C. & S.F. Ry. Co. v. Rambolt, 67 Tex. 654, 4 S.W. 356. So, even assuming the two
clauses discuss are repugnant, the latter must prevail.
Wherefore in the light of this precedents, the constitutional authority of the President to
suspend in case of imminent danger of invasion, insurrection or rebellion under article VII
may not correctly be placed in doubt.
E. The petitioner insisted in the court below that the suspension should not apply to his
son, because the latter had been arrested and had filed the petition before the Executive
proclamation. On this phase of the controversy, it is our opinion that the order of
suspension affects the power of the court's and operates immediately on all petitions
therein pending at the time of its promulgation.
A proclamation of the President suspending the writ of habeas corpus was held
valid and efficient in law to suspend all proceedings pending upon habeas corpus,
which was issued and served prior to the date of the proclamation. Matter of
Dunn, D.C. N.Y. 1863, 25 How. Prac. 467, 8 Fed. Cas. 4,171.
F. Premises considered, the decision of the court a quo refusing to release the prisoner is
affirmed, without costs.
G.R. No. L-33964 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG
RODOLFO DEL ROSARIO, and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine
Constabulary, respondent.
Facts: On the evening of August 21, 1971, two grenades were thrown at the miting the
avance of the Liberal Party killing 8 persons and injuring many. Thus, on August 23 then
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President Marcos issued proclamation 889, the suspension of the writ of habeas corpus.
Herein petitioners were apprehended by members of the Philippine Constabulary having
invoked the said proclamation. In effect the proclamation implies that the authority to
decide whether the exigency has arisen requiring suspension of the writ belongs to the
President and it expressly states that such declaration is deemed “final and conclusive
upon the courts and all other persons”
・ August 30: the president issued proclamation 889-A, amending the previous
proclamation.
・ September 18: proclamation 889-B issued; lifting the suspension on selected
provinces/cities.
・ September 25: proclamation 889-C issued; lifting the suspension on selected
provinces/cities.
・ October 4: proclamation 889-D issued; same as 889-C on selected areas.
In view thereof, 18 provinces, 2 sub-provinces and 18 cities are still under the suspension
of writ of habeas corpus
Issue: Whether the court would adhere to its previous decision in Barcelon vs. Baker and
Montenegro vs. Castaneda?
Held: First, Proclamation 889-A superseded the original proclamation and that flaws
attributed thereto are formal in nature. Which actually emphasize the actuality of the
intent to rise in arms. Second, The court intervention: In Sterling vs. Constantin, Chief
Justice Hughes declared that “when there is a substantial showing that the exertion of
state power has overridden private rights secured by the Constitution, the subject is
necessarily one for judicial review”. Thus, the grant of power to suspend the privilege of
writ is neither absolute or unqualified
The declaration of a rebellion as argued by the petitioners need not to be a wide-scale
event, it may be declared even if it only involves a small part of the country. The president
decision to suspend the writ was by fact constitutional hence VALID, as he has three
available courses to suppress rebellion. First, to call out the military, second to suspend
the privilege of writ and lastly to declare martial law.
Petitions DENIED; the CFI is directed to conduct preliminary investigations
G.R. No. L-33964 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG
RODOLFO DEL ROSARIO, and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine
Constabulary, respondent.
G.R. No. L-33965 December 11, 1971
ROGELIO V. ARIENDA, petitioner,
vs.
SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL.
CONSTABULARY, respondents.
G.R. No. L-33973 December 11, 1971
LUZVIMINDA DAVID, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N.
C. CAMELLO, in his capacity as Chief of Staff, Philippine Constabulary and HON.
JUAN PONCE ENRILE in his capacity as Secretary, Department of National
defense, respondents.
G.R. No. L-33982 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E.
PRUDENTE FELICIDAD G. PRUDENTE, petitioners,
vs.
GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents.
G.R. No. L-34004 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF
GERARDO TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF
DOCUMENTS ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as
Chairman, Committee on Legal Assistance, Philippine Bar Association, petitioner,
vs.
BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE
CONSTABULARY, respondent.
G.R. No. L-34013 December 11, 1971
REYNALDO RIMANDO, petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine
Constabulary, respondent.
G.R. No. L-34039 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF SGT.
FILOMENO M. DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE CASTRO.
CARLOS C. RABAGO, in his capacity as President of the Conference Delegates
Association of the Philippines (CONDA),petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.
G.R. No. L-34265 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA, JR.
ANTOLIN ORETA, JR., petitioner,
vs.
GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, respondents.
G.R. No. L-34339 December 11, 1971
GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et
al., respondents.
CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the
Philippines was holding a public meeting at Plaza Miranda, Manila, for the presentation of
its candidates in the general elections scheduled for November 8, 1971, two (2) hand
grenades were thrown, one after the other, at the platform where said candidates and
other persons were. As a consequence, eight (8) persons were killed and many more
132 | P a g e
injured, including practically all of the aforementioned candidates, some of whom
sustained extensive, as well as serious, injuries which could have been fatal had it not
been for the timely medical assistance given to them.
On August 23, soon after noontime, the President of the Philippines announced the
issuance of Proclamation No. 889, dated August 21, 1971, reading as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely
established that lawless elements in the country, which are moved by
common or similar ideological conviction, design and goal and enjoying the
active moral and material support of a foreign power and being guided and
directed by a well trained, determined and ruthless group of men and
taking advantage of our constitutional liberties to promote and attain their
ends, have entered into a conspiracy and have in fact joined and banded
their forces together for the avowed purpose of actually staging,
undertaking and waging an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the duly constituted
government, and supplant our existing political social, economic and legal
order with an entirely new one whose form of government, whose system
of laws, whose conception of God and religion, whose notion of individual
rights and family relations, and whose political, social and economic
precepts are based on the Marxist-Leninist-Maoist teachings and beliefs;
WHEREAS, these lawless elements, acting in concert through front
organizations that are seemingly innocent and harmless, have
continuously and systematically strengthened and broadened their
memberships through sustained and careful recruiting and enlistment of
new adherents from among our peasantry, laborers, professionals,
intellectuals, students, and mass media personnel, and through such
sustained and careful recruitment and enlistment have succeeded in
infiltrating almost every segment of our society in their ceaseless
determination to erode and weaken the political, social, economic and
moral foundations of our existing government and to influence many
peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations against our duly
constituted authorities, against the members of our law enforcement
agencies, and worst of all, against the peaceful members of our society;
WHEREAS, these lawless elements have created a state of lawlessness and
disorder affecting public safety and the security of the State, the latest
manifestation of which has been the dastardly attack on the Liberal Party
rally in Manila on August 21, 1971, which has resulted in the death and
serious injury of scores of persons;
WHEREAS, public safety requires that immediate and effective action be
taken in order to maintain peace and order, secure the safety of the
people and preserve the authority of the State;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby suspend the privilege of the
writ of habeas corpus, for the persons presently detained, as well as
others who may be hereafter similarly detained for the crimes of
insurrection or rebellion, and all other crimes and offenses committed by
them in furtherance or on the occasion thereof, or incident thereto, or in
connection therewith.
Presently, petitions for writ of habeas corpus were filed, in the above-entitled cases, by
the following persons, who, having been arrested without a warrant therefor and then
detained, upon the authority of said proclamation, assail its validity, as well as that of
their detention, namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI ALCALA, the
petitioners in Case No. L-33964 — filed on August 24, 1971 — who, on August 22, 1971,
between 8 a.m. and 6 p.m., were "invited" by agents of the Philippine Constabulary —
which is under the command of respondent Brig. Gen. Eduardo M. Garcia — to go and did
go to the headquarters of the Philippine Constabulary, at Camp Crame, Quezon City, for
interrogation, and thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 — filed, also, on
August 24, 1971 — who was picked up in his residence, at No. 55 Road, 3, Urduja Village,
Quezon City, by members of the Metrocom and then detained;
3. Soon after the filing of the petition in Case No. L-33965 — or on August 28,
1971 — the same was amended to include VICENTE ILAO and JUAN CARANDANG, as
petitioners therein, although, apart from stating that these additional petitioners are
temporarily residing with the original petitioner, Rogelio V. Arienda, the amended petition
alleged nothing whatsoever as regards the circumstances under which said Vicente Ilao
and Juan Carandang are said to be illegally deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 — filed on August 25, 1971
— who was similarly arrested in his residence, at No. 131-B Kamias Road, Quezon City,
and detained by the Constabulary;
5. Felicidad G. Prudente, who filed the petition in Case No. L-33982 — on August
27, 1971 — upon the ground that her father, Dr. NEMESIO E. PRUDENTE, had, on August
22, 1971, at about 8 p.m., been apprehended by Constabulary agents in his house, at St.
Ignatius Village, Quezon City, and then detained at the Camp Crame stockade, Quezon
City;
6. ANGELO DE LOS REYES, who was allowed — on August 30, 1971 — to intervene
as one of the petitioners in Cases Nos. L-33964, L-33965 and L-33973, he having been
arrested by members of the Constabulary on August 22, 1971, between 6:30 and 7:30
p.m., in his residence, at 86 Don Manuel Street, Sta. Mesa Heights, Quezon City, and
brought to Camp Crame, Quezon City, where he is detained and restrained of liberty;
7. VICTOR FELIPE, who was similarly allowed to intervene as one of the petitioners
in said three (3) cases, upon the ground that, on August 23, 1971, at about 8 a.m., he
was, likewise, apprehended at Sta. Rosa, Laguna, by members of the Philippine
Constabulary and brought, first to the Constabulary headquarters at Canlubang, Laguna,
and, then, to Camp Crame, Quezon City, where he is detained and restrained of liberty;
8. TERESITO SISON, who was, also, allowed to intervene as one of the petitioners
in the same three (3) cases, he having been arrested in his residence, at 318 Lakandula
St., Angeles City, on August 22, 1971, between 6 and 7 p.m., and taken to the PC offices
133 | P a g e
at Sto. Domingo, Angeles City, then to Camp Olivas, San Fernando, Pampanga, and
eventually to Camp Crame, Quezon City, where he is restrained and deprived of liberty;
9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second year college
students of St. Louis University, Baguio City, on whose behalf, Domingo E. de Lara — in
his capacity as Chairman, Committee on Legal Assistance, Philippine Bar Association —
filed on September 3, 1971, the petition in Case No. L-34004, upon the ground that said
Gerardo Tomas had, on August 23, 1971, at about 6 a.m., been arrested by Constabulary
agents, while on his way to school in the City of Baguio, then brought to the Constabulary
premises therein at Camp Holmes, and, thereafter, taken, on August 24, 1971, to Camp
Olivas, Pampanga, and thence, on August 25, 1971, to the Constabulary headquarters at
Camp Crame, Quezon City, where he is detained;
10. REYNALDO RIMANDO, petitioner in Case No. L-34013 — filed on September 7,
1971 — a 19-year old student of the U.P. College in Baguio city — who, while allegedly on
his way home, at Lukban Road, Baguio, on August 23, 1971, at about 1 a.m., was joined
by three (3) men who brought him to the Burnham Park, thence, to Camp Olivas at San
Fernando, Pampanga, and, thereafter, to Camp Crame, Quezon City, where he is
detained;
11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs. BARCELISA C. DE CASTRO,
on whose behalf Carlos C. Rabago — as President of the Conference Delegates Association
of the Philippines (CONDA) — filed the petition in Case No. L-34039 — on September 14,
1971 — against Gen. Eduardo M. Garcia, alleging that, on August 27, 1971, at about 3
p.m., Mrs. De Castro was arrested, while at Liamzon Subdivision, Rosario, Pasig, Rizal, by
agents of the Constabulary, and taken to the PC headquarters at Camp Crame, where,
later, that same afternoon, her husband was brought, also, by PC agents and both are
detained;
12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-34265 — on October
26, 1971 — against said Gen. Garcia, as Chief of the Constabulary, and Col. Prospero
Olivas, Chief of the Central Intelligence Service (CIS), Philippine Constabulary, alleging
that, upon invitation from said CIS, he went, on October 20, 1971, to Camp Aguinaldo,
Quezon City, to see Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines,
who referred petitioner to Col. Laroya of the CIS; that the latter, in turn, referred him to
CIS Investigator Atty. Berlin Castillo and another CIS against, whose name is unknown to
the petitioner; and that, after being interrogated by the two (2), petitioner was detained
illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 — filed on November 10, 1971
— who was apprehended, by agents of the Constabulary, in the evening of November 8,
1941, in Quezon City, and then detained at Camp Crame, in the same City.
Upon the filing of the aforementioned cases, the respondents were forthwith required to
answer the petitions therein, which they did. The return and answer in L-33964 — which
was, mutatis mutandis, reproduced substantially or by reference in the other cases, except
L-34265 — alleges, inter alia, that the petitioners had been apprehended and detained "on
reasonable belief" that they had "participated in the crime of insurrection or rebellion;"
that "their continued detention is justified due to the suspension of the privilege of the writ
of habeas corpus pursuant to Proclamation No. 889 of the President of the Philippines;"
that there is "a state of insurrection or rebellion" in this country, and that "public safety
and the security of the State required the suspension of the privilege of the writ of habeas
corpus," as "declared by the President of the Philippines in Proclamation No. 889; that in
making said declaration, the "President of the Philippines acted on relevant facts gathered
thru the coordinated efforts of the various intelligence agents of our government but (of)
which the Chief Executive could not at the moment give a full account and disclosure
without risking revelation of highly classified state secrets vital to its safely and security";
that the determination thus made by the President is "final and conclusive upon the court
and upon all other persons" and "partake(s) of the nature of political question(s) which
cannot be the subject of judicial inquiry," pursuant to Barcelon v. Baker, 5 Phil. 87,
and Montenegro v. Castañeda, 91 Phil. 882; that petitioners "are under detention pending
investigation and evaluation of culpabilities on the reasonable belief" that they "have
committed, and are still committing, individually or in conspiracy with others, engaged in
armed struggle, insurgency and other subversive activities for the overthrow of the
Government; that petitioners cannot raise, in these proceedings for habeas corpus, "the
question of their guilt or innocence"; that the "Chief of Constabulary had petitioners taken
into custody on the basis of the existence of evidence sufficient to afford a reasonable
ground to believe that petitioners come within the coverage of persons to whom the
privilege of the writ of habeas corpus has been suspended"; that the "continuing detention
of the petitioners as an urgent bona fide precautionary and preventive measure demanded
by the necessities of public safety, public welfare and public interest"; that the President of
the Philippines has "undertaken concrete and abundant steps to insure that the
constitutional rights and privileges of the petitioners as well as of the other persons in
current confinement pursuant to Proclamation 889 remain unimpaired and unhampered";
and that "opportunities or occasions for abuses by peace officers in the implementation of
the proclamation have been greatly minimized, if not completely curtailed, by various
safeguards contained in directives issued by proper authority."
These safeguards are set forth in:
1. A letter of the President to the Secretary of National Defense, dated August 21,
1971, directing, inter alia, in connection with the arrest or detention of suspects pursuant
to Proclamation No. 889, that, except when caught inflagrante delicto, no arrest shall be
made without warrant authorized in writing by the Secretary of National Defense; that
such authority shall not be granted unless, "on the basis of records and other evidences,"
it appears satisfactorily, in accordance with Rule 113, section 6(b), of the Rules of Court,
that the person to be arrested is probably guilty of the acts mentioned in the
proclamation; that, if such person will be charged with a crime subject to an afflictive
penalty under the Anti-Subversion Act, the authorization for his arrest shall not be issued
unless supported by signed intelligence reports citing at least one reliable witness to the
same overt act; that no unnecessary or unreasonable force shall be used in effecting
arrests; and that arrested persons shall not be subject to greater restraint than is
necessary for their detention;
2. Communications of the Chief of the Constabulary, dated August 23, 27, and 30,
1971, to all units of his command, stating that the privilege of the writ is suspended for no
other persons than those specified in the proclamation; that the same does not involve
material law; that precautionary measures should be taken to forestall violence that may
be precipitated by improper behavior of military personnel; that authority to cause arrest
under the proclamation will be exercised only by the Metrocom, CMA, CIS, and "officers
occupying position in the provinces down to provincial commanders"; that there shall be
no indiscriminate or mass arrests; that arrested persons shall not be harmed and shall be
134 | P a g e
accorded fair and humane treatment; and that members of the detainee's immediate
family shall be allowed to visit him twice a week;
3. A memorandum of the Department of National Defense, dated September 2,
1971, directing the Chief of the Constabulary to establish appropriate Complaints and
Action Bodies/Groups to prevent and/or check any abuses in connection with the
suspension of the privilege of the writ; and
4. Executive Order No. 333, dated August 26, 1971, creating a Presidential
Administrative Assistance Committee to hear complaints regarding abuses committed in
connection with the implementation of Proclamation No. 889.
Respondents in L-33965 further alleged that therein petitioners Vicente Ilao and Juan
Carandang had been released from custody on August 31, 1971, "after it had been found
that the evidence against them was insufficient."
In L-34265, the "Answer and Return" filed by respondents therein traversed some
allegations of fact and conclusions of law made in the petition therein and averred that
Antolin Oreta, Jr., the petitioner therein, had been and is detained "on the basis of a
reasonable ground to believe that he has committed overt acts in furtherance of rebellion
or insurrection against the government" and, accordingly, "comes within the class of
persons as to whom the privilege of the writ of habeas corpus has been suspended by
Proclamation No. 889, as amended," the validity of which is not contested by him.
On August 30, 1971, the President issued Proclamation No. 889-A, amending Proclamation
No. 889, so as to read as follows:
WHEREAS, on the basis of carefully evaluated information, it is definitely
established that lawless elements in the country, which are moved by
common or similar ideological conviction, design and goal and enjoying the
active moral and material support of a foreign power and being guided and
directed by a well-trained, determined and ruthless group of men and
taking advantage of our constitutional liberties to promote and attain their
ends, have entered into a conspiracy and have in fact joined and banded
their forces together for the avowed purpose of [actually] staging,
undertaking, [and] wagging and are actually engaged in an armed
insurrection and rebellion in order to forcibly seize political power in this
country, overthrow the duly constituted government, and supplant our
existing political, social, economic and legal order with an entirely new one
whose form of government, whose system of laws, whose conception of
God and religion, whose notion of individual rights and family relations,
and whose political, social and economic precepts are based on the
Marxist-Leninist-Maoist teaching and beliefs;
WHEREAS, these lawless elements, acting in concert through front
organizations that are seemingly innocent and harmless, have
continuously and systematically strengthened and broadened their
memberships through sustained and careful recruiting and enlistment of
new adherents from among our peasantly, laborers, professionals,
intellectuals, students, and mass media personnel, and through such
sustained and careful recruitment and enlistment have succeeded in
infiltrating almost every segment of our society in their ceaseless
determination to erode and weaken the political, social, economic and
moral foundations of our existing government and influence many
peasant, labor, professional, intellectual, student and mass media
organizations to commit acts of violence and depredations against our duly
constituted authorities, against the members of our law enforcement
agencies, and worst of all, against the peaceful members of our society;
WHEREAS, these lawless elements, by their acts of rebellion and
insurrection, have created a state of lawlessness and disorder affecting
public safety and security of the State, the latest manifestation of which
has been the dastardly attack on the Liberal Party rally in Manila on
August 21, 1971, which has resulted in the death and serious injury of
scores of persons;
WHEREAS, public safety requires that immediate and effective action be
taken in order to maintain peace and order, secure the safety of the
people and preserve the authority of the State;
NOW THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby suspend the privilege of the
writ of habeas corpus for the persons presently detained, as well as all
others who may be hereafter similarly detained for the crimes of
insurrection or rebellion [,] and [all] other [crimes and offenses] overt acts
committed by them in furtherance [or on the occasion] thereof[,]. [or
incident thereto, or in connection therewith.]1
On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 and L-33982 were jointly
heard and then the parties therein were allowed to file memoranda, which were submitted
from September 3 to September 9, 1971.
Soon thereafter, or on September 18, 1971, Proclamation No. 889 was further amended
by Proclamation No. 889-B, lifting the suspension of the privilege of the writ of habeas
corpus in the following provinces, sub-provinces and cities of the Philippine, namely:
A. PROVINCES:
1. Batanes 15. Negros Occ.
2. Ilocos Norte 16. Negros Or.
3. Ilocos Sur 17. Cebu
4. Abra 18. Bohol
5. Abra 19. Capiz
6. Pangasinan 20. Aklan
7. Batangas 21. Antique
8. Catanduanes 22. Iloilo
9. Masbate 23. Leyte
10. Romblon 24. Leyte del Sur
11. Marinduque 25. Northern Samar
12. Or. Mindoro 26. Eastern Samar
135 | P a g e
 13. Occ. Mindoro 27. Western Samar As a consequences, the privilege of the writ of habeas corpus is still suspended in the
14. Palawan. following eighteen (18) provinces, two (2) sub-provinces and eighteen (18) cities, to wit:
B. SUB-PROVINCES: A. PROVINCE:
1. Guimaras 3. Siquior 1. Bataan 10. North Cotabato
2. Biliran 2. Benguet 11. Nueva Ecija
C. CITIES: 3. Bulacan 13. Pampanga
1. Laog 10. Bacolod 4. Camarines Sur 14. Quezon
2. Dagupan 11. Bago 5. Ifugao 15. Rizal
3. San Carlos 12. Canlaon 6. Isabela 16. South Cotabato
4. Batangas 13. La Carlota 7. Laguna 17. Tarlac
5. Lipa 14. Bais 8. Lanao del Norte 18. Zambales
6. Puerto Princesa 15. Dumaguete 9. Lanao del Norte
7. San Carlos (Negros 16. Iloilo B. SUB-PROVINCES:
Occ.) 17. Roxas 1. Aurora 2. Quirino
8. Cadiz 18. Tagbilaran C. CITIES:
9. Silay 19. Lapu-lapu 1. Angeles 10. Manila
2. Baguio 11. Marawi
20. Cebu 24. Tacloban 3. Cabanatuan 12. Naga
21. Mandaue 25. Ormoc 4. Caloocan 13. Olongapo
22. Danao 26. Calbayog 5. Cotabato 14. Palayan
23. Toledo 6. General Santos 15. Pasay
On September 25, 1971, the President issued Proclamation No. 889-C, restoring the 7. Iligan 16. Quezon
privilege of the writ in the following provinces and cities: 8 Iriga 17. San Jose
A. PROVINCES: 9 Lucena 18. San Pablo
1. Surigao del Norte 8. Agusan del Sur
2. Surigao del Sur 9. Misamis Or. The first major question that the Court had to consider was whether it would adhere to the
3. Davao del Norte 10. Misamis Occ. view taken in Barcelon v. Baker,2 and reiterated in Montenegro v. Castañeda,3 pursuant to
4. Davao del Sur 11. Zamboanga del Norte which, "the authority to decide whether the exigency has arisen requiring suspension (of
5. Davao Oriental 12. Basilan the privilege of the writ of habeas corpus) belongs to the President and his 'decision is
6. Bukidnon 13. Pagadian final and conclusive' upon the courts and upon all other persons." Indeed, had said
7. Agusan del Norte question been decided in the affirmative the main issue in all of these cases, except
B. CITIES: L-34339, would have been settled, and, since the other issues were relatively of minor
1. Surigao 8. Tangub importance, said cases could have been readily disposed of. Upon mature deliberation, a
2. Davao 9. Dapitan majority of the Members of the Court had, however, reached, although tentatively, a
3. Butuan 10. Dipolog consensus to the contrary, and decided that the Court had authority to and should inquire
4. Cagayan 11. Zamboanga into the existence of the factual bases required by the Constitution for the suspension of
5. Gingoong 12. Basilan the privilege of the writ; but before proceeding to do so, the Court deemed it necessary to
6. Ozamiz 13. Pagadian. hear the parties on the nature and extent of the inquiry to be undertaken, none of them
7. Oroquieta having previously expressed their views thereof. Accordingly, on October 5, 1971, the
On October 4, 1971, the suspension of the privilege was further lifted by Proclamation No. Court issued, in L-33964, L-33965, L-33973 and L-33982, a resolution stating in part that
889-D, in the following places: —
A. PROVINCES:
1. Cagayan 5. Camarines
... a majority of the Court having tentatively arrived at a consensus that it
2. Cavite 6. Albay
may inquire in order to satisfy itself of the existence of the factual bases
3. Mountain Province 7. Sorsogon
for the issuance of Presidential Proclamations Nos. 889 and 889-A
4. Kalinga-Apayao
(suspending the privilege of the writ of habeas corpus for all persons
B. CITIES:
detained or to be detained for the crimes of rebellion or insurrection
1. Cavite City 3. Trece Martires
throughout the Philippines, which area has lately been reduced to some
2. Tagaytay 4. Legaspi

136 | P a g e
 eighteen provinces, two subprovinces and eighteen cities with the partial
lifting of the suspension of the privilege effected by Presidential
Proclamations Nos. 889-B, 889-C and 889-D) and thus determine the
constitutional sufficiency of such bases in the light of the requirements of
Article III, sec. 1, par. 14, and Article VII, sec. 10, par. 2, of the Philippine
Constitution; and considering that the members of the Court are not
agreed on the precise scope and nature of the inquiry to be made in the
premises, even as all of them are agreed that the Presidential findings are
entitled to great respect, the Court RESOLVED that these cases be set for
rehearing on October 8, 1971 at 9:30 A.M.
On October 8, 1971, said four cases were, therefore, heard, once again, but, this time
jointly with cases Nos. L-34004, L-34013, and L-34039, and the parties were then granted
a period to file memoranda, in amplification of their respective oral arguments, which
memoranda were submitted from October 12 to October 21, 1971.
Respondents having expressed, during the oral arguments, on September 1 and October
8, 1971, their willingness to impart to the Court classified information relevant to these
cases, subject to appropriate security measures, the Court met at closed doors, on
October 28 and 29, 1971, and, in the presence of three (3) attorneys for the petitioners,
chosen by the latter, namely, Senator Jose W. Diokno, Senator Salvador H. Laurel, and
Atty. Leopoldo Africa, as well as of the Solicitor General and two (2) members of his staff,
was briefed, by Gen. Manuel Yan, Chief of Staff of the Armed Forces of the Philippines,
Gen. Fidel Ramos, Deputy Chief of Staff, Gen. Felizardo Tanabe, Col. Tagumpay
Nanadiego, Judge Advocate General, JAGS (GSC), and other ranking officers of said Armed
Forces, on said classified information, most of which was contained in reports and other
documents already attached to the records. During the proceedings, the members of the
Court, and, occassionally, counsel for the petitioners, propounded pertinent questions to
said officers of the Armed Forces. Both parties were then granted a period of time within
which to submit their respective observations, which were filed on November 3, 1971, and
complemented by some documents attached to the records on November 6, 1971, and a
summary, submitted on November 15, 1971, of the aforesaid classified information.
In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar) had been filed and the
parties therein were heard in oral argument on November 4, and 16, 1971, respectively.
On November 15, 1971, the Solicitor General filed manifestations — motions stating that
on November 13, 1971, the following petitioners were:
(a) released from custody:
(1) Teodosio Lansang -- G.R. No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013
(7) Filomeno M. de Castro -- " " L-34039
(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.
(b) charged, together with other persons named in the criminal complaint filed therefor,
with a violation of Republic Act No. 1700 (Anti-Subversion Act), in the City Fiscal's Office
of Quezon City:
(1) Angelo de los Reyes -- G.R. No. L-22982 *
(2) Teresito Sison -- " " L-33982 *
(c) accused, together with many others named in the criminal complaint filed therefor, of a
violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act), in the Court of First
Instance of Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No. 889, as amended, and praying
that the petitions in G.R. Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and L-34039
be dismissed, without prejudice to the resolution of the remaining cases. Copy of the
criminal complaint filed, as above stated, with the Court of First Instance of Rizal and
docketed therein as Criminal Case No. Q-1623 of said court — which was appended to said
manifestations-motions of the respondent as Annex 2 thereof — shows that Gary Olivar,
the petitioner in L-34339, is one of the defendants in said case.
Required to comment on said manifestations-motions, Luzvimindo David, petitioner in L-
33973, in his comment dated November 23, 1971, urged the Court to rule on the merits of
the petitions in all of these cases, particularly on the constitutionality of Presidential
Proclamation No. 889, as amended, upon the ground that he is still detained and that the
main issue is one of public interest involving as it does the civil liberties of the people.
Angelo de los Reyes, one of the petitioners in L-33964, L-33965 and L-33973, Nemesio E.
Prudente and Gerardo Tomas, for whose respective benefit the petitions in L-33982 and L-
34004 have been filed, maintained that the issue in these cases is not moot, not even for
the detainees who have been released, for, as long as the privilege of the writ remains
suspended, they are in danger of being arrested and detained again without just cause or
valid reason. In his reply, dated and filed on November 29, 1971, the Solicitor General
insisted that the release of the above-named petitioners rendered their respective
petitions moot and academic.
I.Petitioners herein, except Antolin Oreta, Jr. in L-34265, question the formal validity of
the proclamation suspending the privilege of the writ of habeas corpus. In this connection,
it should be noted that, as originally formulated, Proclamation No. 889 was contested upon
the ground that it did not comply with the pertinent constitutional provisions, namely,
paragraph (14) of section 1, Article III of our Constitution, reading:
The privilege of the writ of habeas corpus shall not be suspended except in
cases of invasion, insurrection, or rebellion, when the public safety
requires it, in any way of which events the same may be suspended
wherever during such period the necessity for such suspension shall exist.
137 | P a g e
and paragraph (2), section 10, Article VII of the same instrument, which provides that:
The President shall be commander-in-chief of all armed forces of the
Philippines, and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion,
insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or
imminent danger thereof when the public safety requires it, he may
suspend the privileges of the writ of habeas corpus, or place the
Philippines or any part thereof under martial law.
Regardless of whether or not the President may suspend the privilege of the writ
of habeas corpus in case of "imminent danger" of invasion, insurrection or rebellion —
which is one of the grounds stated in said paragraph (2), section 10 of Art. VII of the
Constitution, but not mentioned in paragraph (14), section 1 of its Bill of Rights —
petitioners maintained that Proclamation No. 889 did not declare the existence
of actual "invasion insurrection or rebellion or imminent danger thereof," and that,
consequently, said Proclamation was invalid. This contention was predicated upon the fact
that, although the first "whereas" in Proclamation No. 889 stated that "lawless elements"
had "entered into a conspiracy and have in fact joined and banded their forces together for
the avowed purpose of actually staging, undertaking and waging an armed insurrection
and rebellion," the actuality so alleged refers to the existence, not of an uprising that
constitutes the essence of a rebellion or insurrection, but of the conspiracy and
the intent to rise in arms.
Whatever may be the merit of this claim, the same has been rendered moot and academic
by Proclamation No. 889-A, issued nine (9) days after the promulgation of the original
proclamation, or on August 30, 1971. Indeed, said Proclamation No. 889-A amended, inter
alia, the first "whereas" of the original proclamation by postulating the said lawless
elements "have entered into a conspiracy and have in fact joined and banded their forces
together for the avowed purpose of staging, undertaking, waging and are actually
engaged in an armed insurrection and rebellion in order to forcibly seize political power in
this country, overthrow the duly constituted government, and supplant our existing
political, social, economic and legal order with an entirely new one ...." Moreover, the third
"whereas" in the original proclamation was, likewise, amended by alleging therein that
said lawless elements, "by their acts of rebellion and insurrection," have created a state of
lawlessness and disorder affecting public safety and the security of the State. In other
words, apart from adverting to the existence of actual conspiracy and of the intent to rise
in arms to overthrow the government, Proclamation No. 889-A asserts that the lawless
elements "are actually engaged in an armed insurrection and rebellion" to accomplish their
purpose.
It may not be amiss to note, at this juncture, that the very tenor of the original
proclamation and particularly, the circumstances under which it had been issued, clearly
suggest the intent to aver that there was and is, actually, a state of rebellion in the
Philippines, although the language of said proclamation was hardly a felicitous one, it
having in effect, stressed the actuality of the intent to rise in arms, rather than of the
factual existence of the rebellion itself. The pleadings, the oral arguments and the
memoranda of respondents herein have consistently and abundantly emphasized — to
justify the suspension of the privilege of the writ of habeas corpus — the acts of violence
and subversion committed prior to August 21, 1971, by the lawless elements above
referred to, and the conditions obtaining at the time of the issuance of the original
proclamation. In short, We hold that Proclamation No. 889-A has superseded the original
proclamation and that the flaws attributed thereto are purely formal in nature.
II.Let us now consider the substantive validity of the proclamation, as amended. Pursuant
to the above-quoted provisions of the Constitution, two (2) conditions must concur for the
valid exercise of the authority to suspend the privilege to the writ, to wit: (a) there must
be "invasion, insurrection, or rebellion" or — pursuant to paragraph (2), section 10 of Art.
VII of the Constitution — "imminent danger thereof," and (b) "public safety" must require
the suspension of the privilege. The Presidential Proclamation under consideration declares
that there has been and there is actually a state of rebellion and
that4 "public safety requires that immediate and effective action be taken in order to
maintain peace and order, secure the safety of the people and preserve the authority of
the State."
Are these findings conclusive upon the Court? Respondents maintain that they are, upon
the authority of Barcelon v. Baker5 and Montenegro v. Castañeda.6 Upon the other hand,
petitioners press the negative view and urge a reexamination of the position taken in said
two (2) cases, as well as a reversal thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a)
it relied heavily upon Martin v. Mott7 involving the U.S. President's power to call out the
militia, which — he being the commander-in-chief of all the armed forces — may be
exercised to suppress or prevent any lawless violence, even without invasion, insurrection
or rebellion, or imminent danger thereof, and is, accordingly, much broader than his
authority to suspend the privilege of the writ of habeas corpus, jeopardizing as the latter
does individual liberty; and (b) the privilege had been suspended by the American
Governor-General, whose act, as representative of the Sovereign, affecting the freedom of
its subjects, can hardly be equated with that of the President of the Philippines dealing
with the freedom of the Filipino people, in whom sovereignty resides, and from whom all
government authority emanates. The pertinent ruling in the Montenegro case was based
mainly upon the Barcelon case, and hence, cannot have more weight than the same.
Moreover, in the Barcelon case, the Court held that it could go into the question: "Did the
Governor-General" — acting under the authority vested in him by the Congress of the
United States, to suspend the privilege of the writ of habeas corpus under certain
conditions — "act in conformance with such authority?" In other words, it did determine
whether or not the Chief Executive had acted in accordance with law. Similarly, in the
Montenegro case, the Court held that petitioner therein had "failed to overcome the
presumption of correctness which the judiciary accords to acts of the Executive ...." In
short, the Court considered the question whether or not there really was are rebellion, as
stated in the proclamation therein contested.
Incidentally, even the American jurisprudence is neither explicit nor clear on the point
under consideration. Although some cases8 purport to deny the judicial power to "review"
the findings made in the proclamations assailed in said cases, the tenor of the opinions
therein given, considered as a whole, strongly suggests the court's conviction that the
138 | P a g e
conditions essential for the validity of said proclamations or orders were, in fact, present
therein, just as the opposite view taken in other cases9 had a backdrop permeated or
characterized by the belief that said conditions were absent. Hence, the dictum of Chief
Justice Taney to the effect that "(e)very case must depend on its own
circumstances." 10 One of the important, if not dominant, factors, in connection therewith,
was intimated in Sterling v. Constantin, 11 in which the Supreme Court of the United
States, speaking through Chief Justice Hughes, declared that:
.... When there is a substantial showing that the exertion of state power
has overridden private rights secured by that Constitution, the subject
is necessarily one for judicial inquiry in an appropriate proceeding directed
against the individuals charged with the transgression. To such a case the
Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority
appropriate to its
exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority of the Court" had
"tentatively arrived at a consensus that it may inquire in order to satisfy itself of the
existence of the factual bases for the issuance of Presidential Proclamations Nos. 889 and
889-A ... and thus determine the constitutional sufficiency of such bases in the light of the
requirements of Article III, sec. 1, par. 14, and Article VII, sec. 10, par 2, of the Philippine
Constitution...." Upon further deliberation, the members of the Court are
now unanimous in the conviction that it has the authority to inquire into the existence of
said factual bases in order to determine the constitutional sufficiency thereof.
Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified.
The authority conferred by the Constitution, both under the Bill of Rights and under the
Executive Department, is limited and conditional. The precept in the Bill of Rights
establishes a general rule, as well as an exception thereto. What is more, it postulates the
former in the negative, evidently to stress its importance, by providing that "(t)he
privilege of the writ of habeas corpus shall not be suspended ...." It is only by way
of exception that it permits the suspension of the privilege "in cases of invasion,
insurrection, or rebellion" — or, under Art VII of the Constitution, "imminent danger
thereof" — "when the public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such suspension shall
exist." 13 For from being full and plenary, the authority to suspend the privilege of the writ
is thus circumscribed, confined and restricted, not only by the prescribed setting or the
conditions essential to its existence, but, also, as regards the time when and the place
where it may be exercised. These factors and the aforementioned setting or conditions
mark, establish and define the extent, the confines and the limits of said power, beyond
which it does not exist. And, like the limitations and restrictions imposed by the
Fundamental Law upon the legislative department, adherence thereto and compliance
therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the
explicit constitutional provisions thereon would be meaningless. Surely, the framers of our
Constitution could not have intended to engage in such a wasteful exercise in futility.
Much less may the assumption be indulged in when we bear in mind that our political
system is essentially democratic and republican in character and that the suspension of
the privilege affects the most fundamental element of that system, namely, individual
freedom. Indeed, such freedom includes and connotes, as well as demands, the right of
every single member of our citizenry to freely discuss and dissent from, as well as criticize
and denounce, the views, the policies and the practices of the government and the party
in power that he deems unwise, improper or inimical to the commonwealth, regardless of
whether his own opinion is objectively correct or not. The untrammelled enjoyment and
exercise of such right — which, under certain conditions, may be a civic duty of the
highest order — is vital to the democratic system and essential to its successful operation
and wholesome growth and development.
Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed
and exercised, not in derogation thereof, but consistently therewith, and, hence, within
the framework of the social order established by the Constitution and the context of the
Rule of Law. Accordingly, when individual freedom is used to destroy that social order, by
means of force and violence, in defiance of the Rule of Law — such as by rising publicly
and taking arms against the government to overthrow the same, thereby committing the
crime of rebellion — there emerges a circumstance that may warrant a limited withdrawal
of the aforementioned guarantee or protection, by suspending the privilege of the writ
of habeas corpus, when public safety requires it. Although we must be forewarned against
mistaking mere dissent — no matter how emphatic or intemperate it may be — for
dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less
refuse — when the existence of such rebellion or insurrection has been fairly established
or cannot reasonably be denied — to uphold the finding of the Executive thereon, without,
in effect, encroaching upon a power vested in him by the Supreme Law of the land and
depriving him, to this extent, of such power, and, therefore, without violating the
Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension of the privilege of the writ: (a) there
must be "invasion, insurrection or rebellion" or — pursuant to paragraph (2), section 10 of
Art. VII of the Constitution — "imminent danger thereof"; and (b) public safety must
require the aforementioned suspension. The President declared in Proclamation No. 889,
as amended, that both conditions are present.
As regards the first condition, our jurisprudence 14 attests abundantly to the Communist
activities in the Philippines, especially in Manila, from the late twenties to the early
thirties, then aimed principally at incitement to sedition or rebellion, as the immediate
objective. Upon the establishment of the Commonwealth of the Philippines, the movement
seemed to have waned notably; but, the outbreak of World War II in the Pacific and the
miseries, the devastation and havoc, and the proliferation of unlicensed firearms
concomitant with the military occupation of the Philippines and its subsequent liberation,
brought about, in the late forties, a resurgence of the Communist threat, with such vigor
as to be able to organize and operate in Central Luzon an army — called HUKBALAHAP,
during the occupation, and renamed Hukbong Mapagpalaya ng Bayan (HMP) after
liberation — which clashed several times with the armed forces of the Republic. This
prompted then President Quirino to issue Proclamation No. 210, dated October 22, 1950,
suspending the privilege of the writ of habeas corpus, the validity of which was upheld
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in Montenegro v. Castañeda. 15 Days before the promulgation of said Proclamation, or on
October 18, 1950, members of the Communist Politburo in the Philippines were
apprehended in Manila. Subsequently accused and convicted of the crime of rebellion, they
served their respective sentences. 16
The fifties saw a comparative lull in Communist activities, insofar as peace and order were
concerned. Still, on June 20, 1957, Rep. Act No. 1700, otherwise known as the Anti-
Subversion Act, was approved, upon the ground — stated in the very preamble of said
statute — that.
... the Communist Party of the Philippines, although purportedly a political
party, is in fact an organized conspiracy to overthrow the Government of
the Republic of the Philippines, not only by force and violence but also by
deceit, subversion and other illegal means, for the purpose of establishing
in the Philippines a totalitarian regime subject to alien domination and
control;
... the continued existence and activities of the Communist Party of the
Philippines constitutes a clear, present and grave danger to the security of
the Philippines; 17 and
... in the face of the organized, systematic and persistent subversion,
national in scope but international in direction, posed by the Communist
Party of the Philippines and its activities, there is urgent need for special
legislation to cope with this continuing menace to the freedom and security
of the country....
In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the
Senate Ad Hoc Committee of Seven — copy of which Report was filed in these cases by
the petitioners herein —
The years following 1963 saw the successive emergence in the country of
several mass organizations, notably the Lapiang Manggagawa (now the
Socialist Party of the Philippines) among the workers; the Malayang
Samahan ng mga Magsasaka (MASAKA) among the peasantry; the
Kabataang Makabayan (KM) among the youth/students; and the
Movement for the Advancement of Nationalism (MAN) among the
intellectuals/professionals. The PKP has exerted all-out effort to infiltrate,
influence and utilize these organizations in promoting its radical brand of
nationalism. 18
Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups,
one of which — composed mainly of young radicals, constituting the Maoist faction —
reorganized the Communist Party of the Philippines early in 1969 and established a New
People's Army. This faction adheres to the Maoist concept of the "Protracted People's War"
or "War of National Liberation." Its "Programme for a People's Democratic Revolution"
states, inter alia:
The Communist Party of the Philippines is determined to implement its
general programme for a people's democratic revolution. All Filipino
communists are ready to sacrifice their lives for the worthy cause of
achieving the new type of democracy, of building a new Philippines that is
genuinely and completely independent, democratic, united, just and
prosperous ...
The central task of any revolutionary movement is to seize political
power. The Communist Party of the Philippines assumes this task at a time
that both the international and national situations are favorable of asking
the road of armed
revolution ... 19
In the year 1969, the NPA had — according to the records of the Department of National
Defense — conducted raids, resorted to kidnappings and taken part in other violent
incidents numbering over 230, in which it inflicted 404 casualties, and, in turn, suffered
243 losses. In 1970, its records of violent incidents was about the same, but the NPA
casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists, whether they
belong to the traditional group or to the Maoist faction, believe that force and violence are
indispensable to the attainment of their main and ultimate objective, and act in
accordance with such belief, although they may disagree on the means to be used at a
given time and in a particular place; and (b) there is a New People's Army, other, of
course, that the arm forces of the Republic and antagonistic thereto. Such New People's
Army is per se proof of the existence of a rebellion, especially considering that its
establishment was announced publicly by the reorganized CPP. Such announcement is in
the nature of a public challenge to the duly constituted authorities and may be likened to a
declaration of war, sufficient to establish a war status or a condition of belligerency, even
before the actual commencement of hostilities.
We entertain, therefore, no doubts about the existence of a sizeable group of men
who have publicly risen in arms to overthrow the government and have thus been and still
are engaged in rebellion against the Government of the Philippines.
In fact, the thrust of petitioners' argument is that the New People's Army proper is
too small, compared with the size of the armed forces of the Government, that the
Communist rebellion or insurrection cannot so endanger public safety as to require the
suspension of the privilege of the writ of habeas corpus. This argument does not negate,
however, the existence of a rebellion, which, from the constitutional and statutory
viewpoint, need not be widespread or attain the magnitude of a civil war. This is apparent
from the very provision of the Revised Penal Code defining the crime of rebellion, 20 which
may be limited in its scope to "any part" of the Philippines, and, also, from paragraph (14)
of section 1, Article III of the Constitution, authorizing the suspension of the privilege of
the writ "wherever" — in case of rebellion — "the necessity for such suspension shall
exist." In fact, the case of Barcelon v. Baker referred to a proclamation suspending the
privilege in the provinces of Cavite and Batangas only. The case of In re Boyle 21involved a
valid proclamation suspending the privilege in a smaller area — a country of the state of
Idaho.
The magnitude of the rebellion has a bearing on the second condition essential to
the validity of the suspension of the privilege — namely, that the suspension be required
by public safety. Before delving, however, into the factual bases of the presidential
findings thereon, let us consider the precise nature of the Court's function in passing upon
the validity of Proclamation No. 889, as amended.
Article VII of the Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle
of separation of powers underlying our system of government, the Executive is supreme
within his own sphere. However, the separation of powers, under the Constitution, is not
140 | P a g e
absolute. What is more, it goes hand in hand with the system of checks and balances,
under which the Executive is supreme, as regards the suspension of the privilege, but
only if and when he acts within the sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested in the Judicial
Department, which, in this respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely to check — not
to supplant 22 — the Executive, or to ascertain merely whether he had gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. To be sure, the power of the Court to determine the
validity of the contested proclamation is far from being identical to, or even comparable
with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal
from inferior courts, in which cases the appellate court has all of the powers of the court of
origin.
Under the principle of separation of powers and the system of checks and balances, the
judicial authority to review decisions of administrative bodies or agencies is much more
limited, as regards findings of fact made in said decisions. Under the English law, the
reviewing court determines only whether there is some evidentiary basis for the contested
administrative findings; no quantitative examination of the supporting evidence is
undertaken. The administrative findings can be interfered with only if there is no evidence
whatsoever in support thereof, and said finding is, accordingly, arbitrary, capricious and
obviously unauthorized. This view has been adopted by some American courts. It has,
likewise, been adhered to in a number of Philippine cases. Other cases,
in bothjurisdictions, have applied the "substantial evidence" rule, which has been
construed to mean "more than a mere scintilla" or "relevant evidence as a reasonable
mind might accept as adequate to support a conclusion," 23 even if other minds equally
reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of administrative determinations
involving the exercise of quasi-judicial functions calling for or entailing the reception of
evidence. It does not and cannot be applied, in its aforesaid form, in testing the validity of
an act of Congress or of the Executive, such as the suspension of the privilege of the writ
of habeas corpus, for, as a general rule, neither body takes evidence — in the sense in
which the term is used in judicial proceedings — before enacting a legislation or
suspending the writ. Referring to the test of the validity of a statute, the Supreme Court of
the United States, speaking through Mr. Justice Roberts, expressed, in the leading case of
Nebbia v. New York, 24 the view that:
... If the laws passed are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of due process are satisfied, and judicial determination to
that effect renders a court functus officio ... With the wisdom of the policy
adopted, with the adequacy or practically of the law enacted to forward it,
the courts are both incompetent and unauthorized to deal ...
Relying upon this view, it is urged by the Solicitor General —
... that judicial inquiry into the basis of the questioned proclamation
can go no further than to satisfy the Court not that the President's decision
is correct and that public safety was endanger by the rebellion and
justified the suspension of the writ, but that in suspending the writ, the
President did not act arbitrarily.
No cogent reason has been submitted to warrant the rejection of such test. Indeed, the
co-equality of coordinate branches of the Government, under our constitutional system,
seems to demand that the test of the validity of acts of Congress and of those of the
Executive be, mutatis mutandis, fundamentally the same. Hence, counsel for petitioner
Rogelio Arienda admits that the proper standard is not correctness, but arbitrariness.
Did public safety require the suspension of the privilege of the writ of habeas
corpus decreed in Proclamation No. 889, as amended? Petitioners submit a negative
answer upon the ground: (a) that there is no rebellion; (b) that, prior to and at the time of
the suspension of the privilege, the Government was functioning normally, as were the
courts; (c) that no untoward incident, confirmatory of an alleged July-August Plan, has
actually taken place after August 21, 1971; (d) that the President's alleged apprehension,
because of said plan, is non-existent and unjustified; and (e) that the Communist forces in
the Philippines are too small and weak to jeopardize public safety to such extent as to
require the suspension of the privilege of the writ of habeas corpus.
As above indicated, however, the existence of a rebellion is obvious, so much so that
counsel for several petitioners herein have admitted it.
With respect to the normal operation of government, including courts, prior to and at the
time of the suspension of the privilege, suffice it to say that, if the conditions were such
that courts of justice no longer functioned, a suspension of the privilege would have been
unnecessary, there being no courts to issue the writ of habeas corpus. Indeed, petitioners'
reference to the normal operation of courts as a factor indicative of the illegality of the
contested act of the Executive stems, perhaps, from the fact that this circumstance was
adverted to in some American cases to justify the invalidation therein decreed of said act
of the Executive. Said cases involved, however, the conviction by military courts of
members of the civilian population charged with common crimes. It was manifestly, illegal
for military courts to assume jurisdiction over civilians so charged, when civil courts were
functioning normally.
Then, too, the alleged absence of any untoward incident after August 21, 1971, does not
necessarily bear out petitioners' view. What is more, it may have been due precisely to the
suspension of the privilege. To be sure, one of its logical effects is to compel those
connected with the insurrection or rebellion to go into hiding. In fact, most of them could
not be located by the authorities, after August 21, 1971.
The alleged July-August Plan to terrorize Manila is branded as incredible, upon the theory
that, according to Professor Egbal Ahman of Cornell University, "guerrilla use of terror ... is
sociological and psychologically selective," and that the indiscriminate resort to terrorism
is bound to boomerang, for it tends to alienate the people's symphaty and to deprive the
141 | P a g e
dissidents of much needed mass support. The fact, however, is that the violence used is
some demonstrations held in Manila in 1970 and 1971 tended to terrorize the bulk of its
inhabitants. It would have been highly imprudent, therefore, for the Executive to discard
the possibility of a resort to terrorism, on a much bigger scale, under the July-August Plan.
We will now address our attention to petitioners' theory to the effect that the New People's
Army of the Communist Party of the Philippines is too small to pose a danger to public
safety of such magnitude as to require the suspension of the privilege of the writ
of habeas corpus. The flaw in petitioners' stand becomes apparent when we consider that
it assumes that the Armed Forces of the Philippines have no other task than to fight the
New People's Army, and that the latter is the only threat — and a minor one — to our
security. Such assumption is manifestly erroneous.
The records before Us show that, on or before August 21, 1971, the Executive had
information and reports — subsequently confirmed, in many respects, by the
abovementioned Report of the Senate Ad-Hoc Committee of Seven 25 — to the effect that
the Communist Party of the Philippines does not merely adhere to Lenin's idea of a swift
armed uprising; that it has, also, adopted Ho Chi Minh's terrorist tactics and resorted to
the assassination of uncooperative local official; that, in line with this policy, the
insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of police; that there were
fourteen (14) meaningful bombing incidents in the Greater Manila Area in 1970; that the
Constitutional Convention Hall was bombed on June 12, 1971; that, soon after the Plaza
Miranda incident, the NAWASA main pipe, at the Quezon City-San Juan boundary, was
bombed; that this was followed closely by the bombing of the Manila City Hall, the
COMELEC building, the Congress Building and the MERALCO substation at Cubao, Quezon
City; and that the respective residences of Senator Jose J. Roy and Congressman Eduardo
Cojuangco were, likewise, bombed, as were the MERALCO main office premises, along
Ortigas Avenue, and the Doctor's Pharmaceuticals, Inc. Building, in Caloocan City.
Petitioners, similarly, fail to take into account that — as per said information and reports
— the reorganized Communist Party of the Philippines has, moreover, adopted Mao's
concept of protracted people's war, aimed at the paralyzation of the will to resist of the
government, of the political, economic and intellectual leadership, and of the people
themselves; that conformably to such concept, the Party has placed special emphasis
upon a most extensive and intensive program of subversion by the establishment of front
organizations in urban centers, the organization of armed city partisans and the infiltration
in student groups, labor unions, and farmer and professional groups; that the CPP has
managed to infiltrate or establish and control nine (9) major labor organizations; that it
has exploited the youth movement and succeeded in making Communist fronts of eleven
(11) major student or youth organizations; that there are, accordingly, about thirty (30)
mass organizations actively advancing the CPP interests, among which are the Malayang
Samahan ng Magsasaka (MASAKA), the Kabataang Makabayan (KM), the Movement for
the Advancement of Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK),
the Samahang Molave (SM) and the Malayang Pagkakaisa ng Kabataang Pilipino(MPKP);
that, as of August, 1971, the KM had two hundred forty-five (245) operational chapters
throughout the Philippines, of which seventy-three (73) were in the Greater Manila Area,
sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon, forty-two (42) in the
Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had recorded
two hundred fifty-eight (258) major demonstrations, of which about thirty-three (33)
ended in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that
most of these actions were organized, coordinated or led by the aforementioned front
organizations; that the violent demonstrations were generally instigated by a small, but
well-trained group of armed agitators; that the number of demonstrations heretofore
staged in 1971 has already exceeded those of 1970; and that twenty-four (24) of these
demonstrations were violent, and resulted in the death of fifteen (15) persons and the
injury of many more.
Subsequent events — as reported — have also proven that petitioners' counsel have
underestimated the threat to public safety posed by the New People's Army. Indeed, it
appears that, since August 21, 1971, it had in Northern Luzon six (6) encounters and
staged one (1) raid, in consequence of which seven (7) soldiers lost their lives and two
(2)others were wounded, whereas the insurgents suffered five (5) casualties; that on
August 26, 1971, a well-armed group of NPA, trained by defector Lt. Victor Corpus,
attacked the very command port of TF LAWIN in Isabela, destroying two (2) helicopters
and one (1) plane, and wounding one (1) soldier; that the NPA had in Central Luzon a
total of four (4) encounters, with two (2) killed and three (3) wounded on the side of the
Government, one (1) BSDU killed and three (3) NPA casualties; that in an encounter at
Botolan, Zambales, one (1) KM-SDK leader, an unidentified dissident, and Commander
Panchito, leader of the dissident group were killed; that on August 26, 1971, there was an
encounter in the barrio of San Pedro. Iriga City, Camarines Sur, between the PC and the
NPA, in which a PC and two (2) KM members were killed; that the current disturbances in
Cotabato and the Lanao provinces have been rendered more complex by the involvement
of the CPP/NPA, for, in mid-1971, a KM group, headed by Jovencio Esparagoza, contacted
the Higa-onan tribes, in their settlement in Magsaysay, Misamis Oriental, and offered them
books, pamphlets and brochures of Mao Tse Tung, as well as conducted teach-ins in the
reservation; that Esparagoza an operation of the PC in said reservation; and that there are
now two (2) NPA cadres in Mindanao.
It should, also, be noted that adherents of the CPP and its front organizations are,
according to intelligence findings, definitely capable of preparing powerful explosives out
of locally available materials; that the bomb used in the Constitutional Convention Hall
was a "clay-more" mine, a powerful explosive device used by the U.S. Army, believed to
have been one of many pilfered from the Subic Naval Base a few days before; that the
President had received intelligence information to the effect that there was a July-August
Plan involving a wave of assassinations, kidnappings, terrorism and mass destruction of
property and that an extraordinary occurence would signal the beginning of said event;
that the rather serious condition of peace and order in Mindanao, particularly in Cotabato
and Lanao, demanded the presence therein of forces sufficient to cope with the situation;
that a sizeable part of our armed forces discharge other functions; and that the expansion
of the CPP activities from Central Luzon to other parts of the country, particularly Manila
and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region,
required that the rest of our armed forces be spread thin over a wide area.
Considering that the President was in possession of the above data — except those related
to events that happened after August 21, 1971 — when the Plaza Miranda bombing took
place, the Court is not prepared to hold that the Executive had acted arbitrarily or gravely
142 | P a g e
abused his discretion when he then concluded that public safety and national security
required the suspension of the privilege of the writ, particularly if the NPA were to strike
simultaneously with violent demonstrations staged by the two hundred forty-five (245) KM
chapters, all over the Philippines, with the assistance and cooperation of the dozens of CPP
front organizations, and the bombing or water mains and conduits, as well as electric
power plants and installations — a possibility which, no matter how remote, he was bound
to forestall, and a danger he was under obligation to anticipate and arrest.
He had consulted his advisers and sought their views. He had reason to feel that the
situation was critical — as, indeed, it was — and demanded immediate action. This he took
believing in good faith that public safety required it. And, in the light of the circumstances
adverted to above, he had substantial grounds to entertain such belief.
Petitioners insist that, nevertheless, the President had no authority to suspend the
privilege in the entire Philippines, even if he may have been justified in doing so in some
provinces or cities thereof. At the time of the issuance of Proclamation No. 889, he could
not be reasonably certain, however, about the placed to be excluded from the operation of
the proclamation. He needed some time to find out how it worked, and as he did so, he
caused the suspension to be gradually lifted, first, on September 18, 1971, in twenty-
seven (27) provinces, three (3) sub-provinces and twenty six (26) cities; then, on
September 25, 1971, in order fourteen (14) provinces and thirteen (13) cities; and, still
later, on October 4, 1971, in seven (7) additional provinces and four (4) cities, or a total
of forty-eight (48) provinces, three (3) sub-provinces and forth-three (43) cities, within a
period of forty-five (45) days from August 21, 1971.
Neither should We overlook the significance of another fact. The President could have
declared a general suspension of the privilege. Instead, Proclamation No. 889 limited the
suspension to persons detained "for crimes of insurrection or rebellion, and all other
crimes and offenses committed by them in furtherance or on the occasion thereof, or
incident thereto, or in connection therewith." Even this was further limited by Proclamation
No. 889-A, which withdrew from the coverage of the suspension persons detained for
other crimes and offenses committed "on the occasion" of the insurrection or rebellion, or
"incident thereto, in or connection therewith." In fact, the petitioners in L-33964, L-33982
and L-34004 concede that the President had acted in good faith.
In case of invasion, insurrection or rebellion or imminent danger thereof, the President
has, under the Constitution, three (3) courses of action open to him, namely: (a) to call
out the armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to
place the Philippines or any part thereof under martial law. He had, already, called out the
armed forces, which measure, however, proved inadequate to attain the desired result. Of
the two (2)other alternatives, the suspension of the privilege is the least harsh.
In view of the foregoing, it does not appear that the President has acted arbitrary in
issuing Proclamation No. 889, as amended, nor that the same is unconstitutional.
III. The next question for determination is whether petitioners herein are covered by said
Proclamation, as amended. In other words, do petitioners herein belong to the class of
persons as to whom privilege of the writ of habeas corpus has been suspended?
In this connection, it appears that Bayani Alcala, one of the petitioners in L-33964,
Gerardo Tomas, petitioner in L-34004, and Reynaldo Rimando, petitioner in L-34013,
were, on November 13, 1971, released "permanently" — meaning, perhaps, without any
intention to prosecute them — upon the ground that, although there was reasonable
ground to believe that they had committed an offense related to subversion, the evidence
against them is insufficient to warrant their prosecution; that Teodosio Lansang, one of the
petitioners in L-33964, Rogelio Arienda, petitioner in L-33965, Nemesio Prudente,
petitioner in L-33982, Filomeno de Castro and Barcelisa C. de Castro, for whose benefit
the petition in L-34039 was filed, and Antolin Oreta, Jr., petitioner in L-34265, were, on
said date, "temporarily released"; that Rodolfo del Rosario, one of the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-33973, as well as
Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner in L-34339, are still
under detention and, hence, deprived of their liberty, they — together with over forty (40)
other persons, who are at large — having been accused, in the Court of First Instance of
Rizal, of a violation of section 4 of Republic Act No. 1700 (Anti-Subversion Act); and that
Angelo delos Reyes and Teresito Sison, intervenors in said L-33964, L-33965 and
L-33973, are, likewise, still detained and have been charged — together with over fifteen
(15) other persons, who are, also, at large — with another violation of said Act, in a
criminal complaint filed with the City Fiscal's Office of Quezon City.
With respect to Vicente Ilao and Juan Carandang — petitioners in L-33965 — who were
released as early as August 31, 1971, as well as to petitioners Nemesio Prudente,
Teodosio Lansang, Rogelio Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa C. de
Castro, Reynaldo Rimando, Gerardo Tomas and Bayani Alcala, who were released on
November 13, 1971, and are no longer deprived of their liberty, their respective petitions
have, thereby, become moot and academic, as far as their prayer for release is concerned,
and should, accordingly, be dismissed, despite the opposition thereto of counsel for
Nemesio Prudente and Gerardo Tomas who maintain that, as long as the privilege of the
writ remains suspended, these petitioners might be arrested and detained again, without
just cause, and that, accordingly, the issue raised in their respective petitions is not moot.
In any event, the common constitutional and legal issues raised in these cases have, in
fact, been decided in this joint decision.
Must we order the release of Rodolfo del Rosario, one of the petitioners in
L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison, intervenors in L-33964, L-
33965 and L-33973, Luzvimindo David, petitioner in L-33973, and Gary Olivar, petitioner
in L-34339, who are still detained? The suspension of the privilege of the writ was decreed
by Proclamation No. 889, as amended, for persons detained "for the crimes of insurrection
or rebellion and other overt acts committed by them in furtherance thereof."
The records shows that petitioners Luzvimindo David, Rodolfo del Rosario, Victor Felipe,
Angelo de los Reyes, Teresito Sison and Gary Olivar are accused in Criminal Case No. Q-
1623 of the Court of First Instance of Rizal with a violation of the Anti-Subversion Act and
that the similar charge against petitioners Angelo de los Reyes and Teresito Sison in a
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criminal complaint, originally filed with the City Fiscal of Quezon City, has, also, been filed That the following aggravating circumstances attended the commission of the offense:
with said court. Do the offenses so charged constitute one of the crimes or overt acts
mentioned in Proclamation No. 889, as amended? a. That the offense was committed in contempt of and with insult to the public authorities;

In the complaint in said Criminal Case No. 1623, it is alleged:
That in or about the year 1968 and for sometime prior thereto and
thereafter up to and including August 21, 1971, in the city of Quezon,
Philippines, and elsewhere in the Philippines, within the jurisdiction of this
Honorable Court, the above-named accused knowingly, wilfully and by
overt acts became officers and/or ranking leaders of the Communist Party
of the Philippines, a subversive association as defined by Republic Act No.
1700, which is an organized conspiracy to overthrow the government of
the Republic of the Philippines by force, violence, deceit, subversion and
other illegal means, for the purpose of establishing in the Philippines a
communist totalitarian regime subject to alien domination and control;
That all the above-named accused, as such officers and/or ranking leaders
of the Communist Party of the Philippines conspiring, confederating and
mutual helping one another, did then and there knowingly, wilfully, and
feloniously and by overt acts committed subversive acts all intended to
overthrow the government of the Republic of the Philippines, as follows:
b. That some of the overt acts were committed in the Palace of the Chief Executive;
c. That craft, fraud, or disguise was employed;
d. That the offense was committed with the aid of armed men;
e. That the offense was committed with the aid of persons under fifteen(15) years old.
Identical allegations are made in the complaint filed with the City Fiscal of Quezon City,
except that the second paragraph thereof is slightly more elaborate than that of the
complaint filed with the CFI, although substantially the same. 26
In both complaints, the acts imputed to the defendants herein constitute rebellion and
subversion, of — in the language of the proclamation — "other overt acts committed ... in
furtherance" of said rebellion, both of which are covered by the proclamation suspending
the privilege of the writ. It is clear, therefore, that the crime for which the detained
petitioners are held and deprived of their liberty are among those for which the privilege of
the writ of habeas corpus has been suspended.
Up to this point, the Members of the Court are unanimous on the legal principles
enunciated.

1. By rising publicly and taking arms against the forces of the government, engaging in
After finding that Proclamation No. 889, as amended, is not invalid and that petitioners
war against the forces of the government, destroying property or committing serious
Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and
violence, exacting contributions or diverting public lands or property from the law
Teresito Sison are detained for and actually accused of an offense for which the privilege
purposes for which they have been appropriated;
of the writ has been suspended by said proclamation, our next step would have been the
following: The Court, or a commissioner designated by it, would have received evidence
2. By engaging by subversion thru expansion and requirement activities not only of the on whether — as stated in respondents' "Answer and Return" — said petitioners had been
Communist Party of the Philippines but also of the united front organizations of the apprehended and detained "on reasonable belief" that they had "participated in the crime
Communist Party of the Philippines as the Kabataang Makabayan (KM), Movement for the of insurrection or rebellion."
Democratic Philippines (MDP), Samahang Demokratikong Kabataan (SDK), Students'
Alliance for National Democracy (STAND), MASAKA Olalia-faction, Student Cultural
It is so happened, however, that on November 13, 1971 — or two (2) days before the
Association of the University of the Philippines (SCAUP), KASAMA, Pagkakaisa ng
proceedings relative to the briefing held on October 28 and 29, 1971, had been completed
Magbubukid ng Pilipinas (PMP) and many others; thru agitation promoted by rallies,
by the filing 27 of the summary of the matters then taken up — the aforementioned
demonstration and strikes some of them violent in nature, intended to create social
criminal complaints were filed against said petitioners. What is more, the preliminary
discontent, discredit those in power and weaken the people's confidence in the
examination and/or investigation of the charges contained in said complaints has already
government; thru consistent propaganda by publications, writing, posters, leaflets of
begun. The next question, therefore, is: Shall We now order, in the cases at hand, the
similar means; speeches, teach-ins, messages, lectures or other similar means; or thru
release of said petitioners herein, despite the formal and substantial validity of the
the media as the TV, radio or newspapers, all intended to promote the Communist pattern
proclamation suspending the privilege, despite the fact that they are actually charged with
of subversion;
offenses covered by said proclamation and despite the aforementioned criminal complaints
against them and the preliminary examination and/or investigations being conducted
3. Thru urban guerilla warfare characterized by assassinations, bombings, sabotage, therein?
kidnapping and arson, intended to advertise the movement, build up its morale and
prestige, discredit and demoralize the authorities to use harsh and repressive measures,
The Members of the Court, with the exception of Mr. Justice Fernando, are of the opinion,
demoralize the people and weaken their confidence in the government and to weaken the
and, so hold, that, instead of this Court or its Commissioner taking the evidence adverted
will of the government to resist.
to above, it is best to let said preliminary examination and/or investigation to be

144 | P a g e
completed, so that petitioners' released could be ordered by the court of first instance,
should it find that there is no probable cause against them, or a warrant for their arrest
could be issued, should a probable cause be established against them. Such course of
action is more favorable to the petitioners, inasmuch as the preliminary examination or
investigation requires a greater quantum of proof than that needed to establish that the
Executive had not acted arbitrary in causing the petitioners to be apprehended and
detained upon the ground that they had participated in the commission of the crime of
insurrection or rebellion. And, it is mainly for the reason that the Court has opted to allow
the Court of First Instance of Rizal to proceed with the determination of the existence of
probable cause, although ordinarily the Court would have merely determined the existence
of the substantial evidence of petitioners' connection with the crime of rebellion. Besides,
the latter alternative would require the reception of evidence by this Court and thus
duplicate the proceedings now taking place in the court of first instance. What is more,
since the evidence involved in the same proceedings would be substantially the same and
the presentation of such evidence cannot be made simultaneously, each proceeding would
tend to delay the other.
Mr. Justice Fernando is of the opinion — in line with the view of Mr. Justice Tuason,
in Nava v. Gatmaitan, 28 to the effect that "... if and when formal complaint is presented,
the court steps in and the executive steps out. The detention ceases to be an executive
and becomes a judicial concern ..." — that the filing of the above-mentioned complaint
against the six (6) detained petitioners herein, has the effect of the Executive giving up his
authority to continue holding them pursuant to Proclamation No. 889, as amended, even if
he did not so intend, and to place them fully under the authority of courts of justice, just
like any other person, who, as such, cannot be deprived of his liberty without lawful
warrant, which has not, as yet, been issued against anyone of them, and that,
accordingly, We should order their immediate release. Despite the humanitarian and
libertarian spirit with which this view had been espoused, the other Members of the Court
are unable to accept it because:
(a) If the proclamation suspending the privilege of the writ of habeas corpus is valid —
and We so hold it to be — and the detainee is covered by the proclamation, the filing of a
complaint or information against him does not affect the suspension of said privilege, and,
consequently, his release may not be ordered by Us;
(b) Inasmuch as the filing of a formal complaint or information does not detract from the
validity and efficacy of the suspension of the privilege, it would be more reasonable to
construe the filing of said formal charges with the court of first instance as an expression
of the President's belief that there are sufficient evidence to convict the petitioners so
charged and that hey should not be released, therefore, unless and until said court — after
conducting the corresponding preliminary examination and/or investigation — shall find
that the prosecution has not established the existence of a probable cause. Otherwise, the
Executive would have released said accused, as were the other petitioners herein;
(c) From a long-range viewpoint, this interpretation — of the act of the President in having
said formal charges filed — is, We believe, more beneficial to the detainees than that
favored by Mr. Justice Fernando. His view — particularly the theory that the detainees
should be released immediately, without bail, even before the completion of said
preliminary examination and/or investigation — would tend to induce the Executive to
refrain from filing formal charges as long as it may be possible. Manifestly, We should
encourage the early filing of said charges, so that courts of justice could assume
jurisdiction over the detainees and extend to them effective protection.
Although some of the petitioners in these cases pray that the Court decide whether the
constitutional right to bail is affected by the suspension of the privilege of the writ
of habeas corpus, We do not deem it proper to pass upon such question, the same not
having been sufficiently discussed by the parties herein. Besides, there is no point in
settling said question with respect to petitioners herein who have been released. Neither is
necessary to express our view thereon, as regards those still detained, inasmuch as their
release without bail might still be decreed by the court of first instance, should it hold that
there is no probable cause against them. At any rate, should an actual issue on the right
to bail arise later, the same may be brought up in appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act arbitrarily in issuing Proclamation No. 889, as
amended, and that, accordingly, the same is not unconstitutional;
2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004, L-34013, L-34039 and
L-34265, insofar as petitioners Teodosio Lansang, Bayani Alcala, Rogelio Arienda,
Vicentellao, Juan Carandang, Nemesio E. Prudente, Gerardo Tomas, Reynaldo Rimando,
Filomeno M. de Castro, Barcelisa C. de Castro and Antolin Oreta, Jr. are concerned;
3. The Court of First Instance of Rizal is hereby directed to act with utmost dispatch in
conducting the preliminary examination and/or investigation of the charges for violation of
the Anti-Subversion Act filed against herein petitioners Luzvimindo David, Victor Felipe,
Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison, and to issue the
corresponding warrants of arrest, if probable cause is found to exist against them, or,
otherwise, to order their release; and
4. Should there be undue delay, for any reason whatsoever, either in the completion of
the aforementioned preliminary examination and/or investigation, or in the issuance of the
proper orders or resolution in connection therewith, the parties may by motion seek in
these proceedings the proper relief.
5. Without special pronouncement as to costs. It is so ordered.
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 G.R. No. L-61388 July 19, 1985
IN THE MATTER OF THE PETITION FOR THE ISSUANCE OF THE WRIT OF HABEAS
CORPUS FOR DR. AURORA PARONG, NORBERTO PORTUGUESE, SABINO PADILLA,
FRANCIS DIVINA GRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA,
ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN,
BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM
VASQUEZ, JOSEFINA GARCIA PADILLA, petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GENERAL FABIAN C. VER GENERAL FIDEL V.
RAMOS, and LT. COL. MIGUEL CORONEL, respondents.
RESOLUTION
PER CURIAM:
Garcia Padilla v. Minister Enrile, 1 is an application for the issuance of the writ of habeas
corpus on behalf of fourteen detainees, nine of whom were arrested on July 6,
1982, 2 another four on July 7, 1982, 3 and the last one on July 15, 1982. 4 The writ was
issued, respondents were required to make a return, and the case heard on August 26,
1982. 5
In such return, it was alleged: "The detainees mentioned in the petition, with the
exception of Tom Vasquez, who was temporarily released on July 17, 1982, after his arrest
on July 15, 1982, are all being detained by virtue of a Presidential Commitment Order
(PCO) issued on July 12, 1982, pursuant to LOI No. 1211 dated March 9, 1982, in relation
to Presidential Proclamation No. 2045 dated January 17, 1981. The said PCO was issued
by President Ferdinand E. Marcos for violation of P.D. No. 885 ... ." 6
The facts were set forth thus in the opinion of the Court penned by retired Justice Pacifico
de Castro: "At the time of the arrest of the nine (9) of the fourteen (14) detainees herein
on July 6, 1982, records reveal that they were then having conference in the dining room
of Dr. Parong's residence from 10:00 a.m. of that same day. Prior thereto, all the fourteen
(14) detainees were under surveillance as they were then Identified as members of the
Communist Party of the Philippines (CPP) engaging in subversive activities and using the
house of detainee Dr. Aurora Parong in Bayombong, Nueva Vizcaya, as their headquarters.
Caught in flagrante delicto, the nine (9) detainees mentioned scampered towards different
directions leaving on top of their conference table numerous subversive documents,
periodicals, pamphlets, books, correspondence, stationeries, and other papers, including a
plan on how they would infiltrate the youth and student sector (code-named YORK). Also
found were one (1) .38 cal. revolver with eight (8) live bullets, nineteen (19) rounds of
ammunition for M16 armalite, eighteen thousand six hundred fifty pesos P l8,650.00) cash
believed to be CPP/NPA funds, assorted medicine packed and ready for distribution, a
sizeable quantity of printing paraphernalia, which were then seized. 7
According to the main opinion of the Court, concurred in full by six other members: 8 "The
function of the PCO is to validate, on constitutional ground, the detention of a person for
any of the offenses covered by Proclamation No. 2045 which continues in force the
suspension of the privilege of the writ of habeas corpus, if the arrest has been made
initially without any warrant. Its legal effect is to render the writ unavailing as a means of
judicially inquiring into the legality of the detention in view of the suspension of the
privilege of the writ. The grant of the power to suspend the said privilege provides the
basis for continuing with perfect legality the detention as long as the invasion or rebellion
has not been repelled or quelled and the need therefor in the interest of public safety
continues." 9 Further: "The significance of the confernment of this power, constitutionally
upon the President as Commander-in-Chief, is that the exercise thereof is not subject to
judicial inquiry, with a view to determining its legality in the light of the bill of rights
guarantee to individual freedom." 10
The opinion then went on to reiterate the doctrine that with the suspension of the privilege
of the writ of habeas corpus, the right to bail is likewise suspended and to hold "that under
LOI 1211, a Presidential Commitment Order, the issuance of which is the executive
prerogative of the President under the Constitution, may not be declared void by the
Courts, under the doctrine of 'political question,' as has been applied in the Baker and
Castañeda cases, on any ground, let alone its supposed violation of the provision of LOI
1211, thus diluting, if not abandoning, the doctrine of the Lansang case." 11 Finally, the
Court held "that upon the issuance of the Presidential Commitment Order against herein
petitioners, their continued detention is rendered valid and legal, and their right to be
released even after the filing of charges against them in court, to depend on the President,
who may order the release of a detainee or his being placed under house arrest, as he has
done in meritorious cases." 12
The dispositive portion of the decision promulgated on April 20, 1983 reads as follows:
"[Wherefore], the instant petition should be, as it is hereby dismissed." 13
Thereafter, on June 6, 1983, a motion for reconsideration was filed by petitioner Garcia
Padilla. The stress is on the continuing validity of Garcia v. Lansang 14 as well as the
existence of the right to bail even with the suspension of the privilege of the writ of
habeas corpus. The motion asserted further that the suspension of the privilege of the writ
of habeas corpus does not vest the President with the power to issue warrants of arrest or
presidential commitment orders, and that even it be assumed that he has such a power,
the Supreme Court may review its issuance when challenged. It was finally alleged that
since petitioners were not caught in flagrante delicto, their arrest was illegal and void.
In the comment of respondents on the motion for reconsideration, it was the submission
of Solicitor General Estelito P. Mendoza that the suspension of the privilege of the writ of
habeas corpus raises a political, not a judicial, question and that the right to bail cannot be
invoked during such a period. On the question of whether or not the suspension of the
privilege of the writ of habeas corpus vests the President with the power to issue warrants
of arrest or presidential commitment orders, this is what the Comment stated: "It is to be
pointed out that this argument was not raised in the petition. Nonetheless, suffice it to
point out that an arrest order by the President incident to the suspension of the privilege
of the writ of habeas corpus is essentially preventive in nature." 15 It added: "Besides, PD
No. 1836 and LOI 1211 have vested, assuming a law is necessary, in the President the
power of preventive arrest incident to the suspension of the privilege of the writ of habeas
corpus. In addition, however, it should be noted that the PCO has been replaced by
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Preventive Detention Action (PDA), pursuant to PD No. 1877 dated July 21, 1983. As There is no question, therefore, that the force and effectivity of a presidential commitment
provided for in the said decree, a PDA constitute an authority to arrest and preventively order issued as far back as July 12, 1982 had ceased to have any force or effect.
detain persons committing the aforementioned crimes, for a period not exceeding one (1)
year, with the cause or causes of their arrest subjected to review by the President or by WHEREFORE, pursuant to Section 8 of Presidential Decree No. 1877 and Section 8 of the
the Review Committee created for that purpose." 16 The last argument of petitioner, Rules and Regulations Implementing Presidential Decree No. 1877-A, the motion for
namely that the detainees were not caught in flagrante delicto and therefore the arrest reconsideration should have been granted, and the writ of habeas corpus ordering the
was illegal was refuted in the Comment thus: "Again petitioner simply misses the point. As release of the detainees covered by such Section 8 issued, but in the light of the foregoing
this Court correctly observed, the crimes of subversion and rebellion are continuing manifestation as to Norberto Portuguese, Sabino Padilla, Francis Divina gracia, Imelda de
offenses. Besides this point involves an issue of fact. 17 los Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty
Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito Granada, and Tom Vasquez,
It suffices to refer to the above Comment for the resolution of the motion for having been released, the petition as to them has been declared moot and academic. As to
reconsideration. As therein noted, Presidential Decree No. 1877 dated July 21, 1983 limits Dr. Aurora Parong, since a warrant of arrest against her was issued by the municipal court
the duration of the preventive detention action for the period not exceeding one year. In of Bayombong on August 4, 1982, for illegal possession of firearm and ammunitions, the
the language of such Decree: "When issued, the preventive detention action shall petition is likewise declared moot and academic. No costs.
constitute authority to arrest the subject person or persons, and to preventively detain
him or them for a period not exceeding one year and sequester all arms, equipment or
properly used or to be used in the commission of the crime or crimes." 18 There is no need
to mention the amendments as there is no change as to the preventive detention period
remaining at "not exceeding one year." This Presidential Decree No. 1877 explicitly
provides in its Section 8: "The Minister of Defense shall promulgate the rules and
regulations to implement this Decree." 19 Such implementing rules and regulations were
issued on September 7, 1983 by Minister of National Defense, respondent Juan Ponce
Enrile and duly approved by the President of the Philippines. One of its Sections deals with
the period of detention under a presidential commitment order thus: "The period of
detention of all persons presently detained by virtue of a Presidential Commitment Order
or its derivatives shall not extend beyond one (1) year from and after the date of
effectivity of Presidential Decree No. 1877, as amended. Upon the effectivity of these rules
and regulations, all cases of persons presently detained under a presidential commitment
order or its derivatives shall be governed by Presidential Decree No. 1877, as amended,
and its implementing rules and regulations." 20

Subsequently, on May 28, 1985, respondents filed the following Manifestation: "1. The
persons listed below who were detained by virtue of Presidential Commitment Order (PCO)
issued on July 12, 1982, and in whose behalf the above-captioned cases was filed have
been released detention by the military authorities concerned on the dates appearing
opposite their names, to wit: Names of Detainees — Dates of Release: a. Dr. Aurora
Parong-December 12, 1983: b. Norberto Portuguese- January 31, 1985; c. Sabino Padilla
— January 31, 1985; d. Francis Divinagracia — January 31, 1985; e. Imelda delos Santos
— October 20, 1983; f. Benjamin Pineda — January 3l 1985; g. Zenaida Mallari — January
31, 1985 h. Tito Tanguilig — October 21, 1983; i. Letty Ballogan — March 4, 1983; j.
Bienvenida Garcia — October 20, 1983; k Eufronio Ortiz, Jr. January 31, 1985; 1. Juanito
Granada — October 20, 1983. 2. The foregoing information was received from the Off ice
of Civil Relations, Ministry of National Defense, through Major Felizardo O. Montero, JAGS-
GHO 3. As regards Tom Vasquez, who was included in the instant petition, he was
released on July 17, 1982, after his arrest on July 15, 1982, since he was not named in
the PCO 4. Anent Mariano Soriano, the undersigned have been informed by the Office of
Civil Relations that the subject escaped from detention two (2) years ago and as of date
hereof is still at large." 21

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