G.R. Nos. L-8895 and L-9191             April 30, 1957SALVADOR A. ARANETA, ETC., ET AL., petitioners, vs.THE HON. MAGNO S. GATMAITAN, ETC., ET AL., respondents.EXEQUIEL SORIANO, ET AL., petitioners-appellees, vs.SALVADOR ARANETA, ETC., ET AL., respondents-appellants.

Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose G. Bautista and Solicitor Troadio T. Quiazon for petitioners.San Juan, Africa and Benedicto for respondents.

FELIX, J.:

San Miguel Bay, located between the provinces of Camarines Norte and Camarines Sur, a part of the National waters of the Philippines with an extension of about 250 square miles and an average depth of approximately 6 fathoms (Otter trawl explorations in Philippine waters p. 21, Exh. B), is considered as the most important fishing area in the Pacific side of the Bicol region. Sometime in 1950, trawl1 operators from Malabon, Navotas and other places migrated to this region most of them settling at Sabang, Calabanga, Camarines Sur, for the purpose of using this particular method of fishing in said bay. On account of the belief of sustenance fishermen that the operation of this kind of gear caused the depletion of the marine resources of that area, there arose a general clamor among the majority of the inhabitants of coastal towns to prohibit the operation of trawls in San Miguel Bay. This move was manifested in the resolution of December 18, 1953 (Exh. F), passed by the Municipal Mayors' League condemning the operation of trawls as the cause of the wanton destruction of the shrimp specie and resolving to petition the President of the Philippines to regulate fishing in San Miguel Bay by declaring it closed for trawl fishing at a certain period of the year. In another resolution dated March 27, 1954, the same League of Municipal Mayor, prayed the President to protect them and the fish resources of San Miguel Bay by banning the operation of trawls therein (Exh. 4). The Provincial Governor also made proper presentations to this effect and petitions in behalf of the non-trawl fishermen were likewise presented to the President by social and civic organizations as the NAMFREL (National Movement for Free Elections) and the COMPADRE (Committee for Philippine Action in Development, Reconstruction and Education), recommending the cancellation of the licenses of trawl operators after investigation, if such inquiry would substantiate the charges that the operation of said fishing method was detrimental to the welfare of the majority of the inhabitants (Exh. 2).

In response to these pleas, the President issued on April 5, 1954, Executive Order No. 22 (50 Off. Gaz., 1421) prohibiting the use of trawls in San Miguel Bay, but said executive order was amended by Executive Order No. 66, issued on September 23, 1954 (50 Off. Gaz., 4037), apparently in answer to a resolution of the Provincial Board of Camarines Sur recommending the allowance of trawl fishing during the typhoon season only. On November 2, 1954, however, Executive Order No. 80 (50 Off. Gaz., 5198) was issued reviving Executive Order No. 22, to take effect after December 31, 1954.

A group of Otter trawl operators took the matter to the court by filing a complaint for injunction and/or declaratory relief with preliminary injunction with the Court of First Instance of Manila, docketed as Civil Case No. 24867, praying that a writ of preliminary injunction be issued to restrain the Secretary of Agriculture and Natural Resources and the Director of Fisheries from enforcing said executive order; to declare the same null and void, and for such other relief as may be just and equitable in the premises.

The Secretary of Agriculture and Natural Resources and the Director of Fisheries, represented by the Legal Adviser of said Department and a Special Attorney of the Office of the Solicitor General, answered the complaint alleging, among other things, that of the 18 plaintiff (Exequiel Soriano, Teodora Donato, Felipe Concepcion, Venancio Correa, Santo Gaviana, Alfredo General, Constancio Gutierrez, Arsenio de Guzman, Pedro Lazaro, Porfirio Lazaro, Deljie de Leon, Jose Nepomuceno, Bayani Pingol, Claudio Salgado, Porfirio, San Juan, Luis Sioco, Casimiro Villar and Enrique Voluntad), only 11 were issued license to operate fishing boats for the year 1954 (Annex B, petition — L-8895); that the executive orders in question were issued accordance with law; that the encouragement by the Bureau of Fisheries of the use of Otter trawls should not be construed to mean that the general welfare of the public could be disregarded, and set up the defenses that since plaintiffs question the validity of the executive orders issued by the President, then the Secretary of Agriculture and Natural Resources and the Director of Fisheries were not the real parties in interest; that said executive orders do not constitute a deprivation of property without due process of law, and therefore prayed that the complaint be dismissed (Exh. B, petition, L-8895).

During the trial of the case, the Governor of Camarines Sur appearing for the municipalities of Siruma, Tinambac, Calabanga, Cabusao and Sipocot, in said province, called the attention of the Court that the Solicitor General had not been notified of the proceeding. To this manifestation, the Court ruled that in view of the circumstances of the case, and

as the Solicitor General would only be interested in maintaining the legality of the executive orders sought to be impugned, section 4 of Rule 66 could be interpreted to mean that the trial could go on and the Solicitor General could be notified before judgement is entered.

After the evidence for both parties was submitted and the Solicitor General was allowed to file his memorandum, the Court rendered decision on February 2, 1955, the last part of which reads as follows:

The power to close any definite area of the Philippine waters, from the fact that Congress has seen fit to define under what conditions it may be done by the enactment of the sections cited, in the mind of Congress must be of transcendental significance. It is primarily within the fields of legislation not of execution: for it goes far and says who can and who can not fish in definite territorial waters. The court can not accept that Congress had intended to abdicate its inherent right to legislate on this matter of national importance. To accept respondents' view would be to sanction the exercise of legislative power by executive decrees. If it is San Miguel Bay now, it may be Davao Gulf tomorrow, and so on. That may be done only by Congress. This being the conclusion, there is hardly need to go any further. Until the trawler is outlawed by legislative enactment, it cannot be banned from San Miguel Bay by executive proclamation. The remedy for respondents and population of the coastal towns of Camarines Sur is to go to the Legislature. The result will be to issue the writ prayed for, even though this be to strike at public clamor and to annul the orders of the President issued in response therefor. This is a task unwelcome and unpleasant; unfortunately, courts of justice use only one measure for both the rich and poor, and are not bound by the more popular cause when they give judgments.

IN VIEW WHEREOF, granted; Executive Order Nos. 22, 66 and 80 are declared invalid; the injunction prayed for is ordered to issue; no pronouncement as to costs.

Petitioners immediately filed an ex-parte motion for the issuance of a writ of injunction which was opposed by the Solicitor General and after the parties had filed their respective memoranda, the Court issued an order dated February 19, 1955, denying respondents' motion to set aside judgement and ordering them to file a bond in the sum of P30,000 on or before March 1, 1955, as a condition for the non-issuance of the injunction prayed for by petitioners pending appeal. The Solicitor General filed a motion for reconsideration which was denied for lack of merit, and the Court, acting upon the motion for new trial filed by respondents, issued another order on March 3, 1965, denying said motion and granting the injunction prayed for by petitioners upon the latter's filing a bond for P30,000 unless respondents could secure a writ of preliminary injunction from the Supreme Court on or before March 15, 1955. Respondents, therefore, brought the matter to this Court in a petition for prohibition and certiorariwith preliminary injunction, docketed as G.R. No. L-8895, and on the same day filed a notice to appeal from the order of the lower court dated February 2, 1955, which appeal was docketed in this Court as G.R. No. L-9191.

In the petition for prohibition and certiorari, petitioners (respondents therein) contended among other things, that the order of, the respondent Judge requiring petitioners Secretary of Agriculture and Natural Resources and the Director of Fisheries to post a bond in the sum of P30,000 on or before March 1, 1955, had been issued without jurisdiction or in excess thereof, or at the very least with grave abuse of discretion, because by requiring the bond, the Republic of the Philippines was in effect made a party defendant and therefore transformed the suit into one against the Government which is beyond the jurisdiction of the respondent Judge to entertain; that the failure to give the Solicitor General the opportunity to defend the validity of the challenged executive orders resulted in the receipt of objectionable matters at the hearing; that Rule 66 of the Rules of Court does not empower a court of law to pass upon the validity of an executive order in a declaratory relief proceeding; that the respondent Judge did not have the power to grant the injunction as Section 4 of Rule 39 does not apply to declaratory relief proceedings but only to injunction, receivership and patent accounting proceedings; and prayed that a writ of preliminary injunction be issued to enjoin the respondent Judge from enforcing its order of March 3, 1955, and for such other relief as may be deem just and equitable in the premises. This petition was given due course and the hearing on the merits was set by this Court for April 12, 1955, but no writ of preliminary injunction was issued.

Meanwhile, the appeal (G.R. No. L-9191) was heard on October 3, 1956, wherein respondents-appellants ascribed to the lower court the commission of the following errors:

1. In ruling that the President has no authority to issue Executive Orders Nos. 22, 66 and 80 banning the operation of trawls in San Miguel Bay;

2. In holding that the power to declare a closed area for fishing purposes has not been delegated to the President of the Philippines under the Fisheries Act;

3. In not considering Executive Orders Nos. 22, 66 and 80 as declaring a closed season pursuant to Section 7, Act 4003, as amended, otherwise known as the Fisheries Act;

4. In holding that to uphold the validity of Executive Orders Nos. 22 and 80 would be to sanction the exercise of legislative power by executive decrees;

5. In its suggestion that the only remedy for respondents and the people of the coastal towns of Camarines Sur and Camarines Norte is to go to the Legislature; and

6. In declaring Executive Orders Nos. 22, 66 and 80 invalid and in ordering the injunction prayed for to issue.

As Our decision in the prohibition and certiorari case (G.R. No. L-8895) would depend, in the last analysis, on Our ruling in the appeal of the respondents in case G.R. No. L-9191, We shall first proceed to dispose of the latter case.

It is indisputable that the President issued Executive Orders Nos. 22, 66 and 80 in response to the clamor of the inhabitants of the municipalities along the coastline of San Miguel Bay. They read as follows:

EXECUTIVE ORDER No. 22

PROHIBITING THE USE OF TRAWLS IN SAN MIGUEL BAY

In order to effectively protect the municipal fisheries of San Miguel Bay, Camarines Norte and Camarines Sur, and to conserve fish and other aquatic resources of the area, I, RAMON MAGSAYSAY, President of the Philippines, by virtue of the powers vested in me by law, do hereby order that:

1. Fishing by means of trawls (utase, otter and/or perenzella) of any kind, in the waters comprised within San Miguel Bay, is hereby prohibited.

2. Trawl shall mean, for the purpose of this Order, a fishing net made in the form of a bag with the mouth kept open by a device, the whole affair being towed, dragged, trailed or trawled on the bottom of the sea to capture demersal, ground or bottom species.

3. Violation of the provisions of this Order shall subject the offender to the penalty provided under Section 83 of Act 4993, or more than six months, or both, in the discretion of the Court.

Done in the City of Manila, this 5th day of April, nineteen hundred and fifty-four and of the Independence of the Philippines, the eighth. (50 Off. Gaz. 1421)

EXECUTIVE ORDER No. 66

AMENDING EXECUTIVE ORDER No. 22, DATED APRIL 5, 1954, ENTITLED "PROHIBITING THE USE OF TRAWLS IN SAN MIGUEL BAY"

By virtue of the powers voted in me by law, I, RAMON MAGSAYSAY, President of the Philippines, do hereby amend Executive Order No. 22, dated April 5, 1954, so as to allow fishing by means of trawls, as defined in said Executive Order, within that portion of San Miguel Bay north of a straight line drawn from Tacubtacuban Hill in the Municipality of Tinambac, Province of Camarines Sur. Fishing by means of trawls south of said line shall still be absolutely prohibited.

Done in the City of Manila, this 23rd day of September, in the year of our Lord, nineteen hundred and fifty-four, and of the Independence of the Philippines, the ninth." (50 Off. Gaz. 4037).

EXECUTIVE ORDER No. 80.

FURTHER AMENDING EXECUTIVE ORDER No. 22, DATED APRIL 5, 1954, AS AMENDED BY EXECUTIVE ORDER No. 66, DATED SEPTEMBER 23, 1954.

By virtue of the powers vested in me by law, I, RAMON MAGSAYSAY, President of the Philippines, do hereby amend Executive Order No. 66 dated September 23, 1954, so as to allow fishing by means of trawls, as defined in Executive Order No. 22, dated April 5, 1954, within the portion of San Miguel Bay North of a straight line drawn from Tacubtacuban Hill in the Municipality of Mercedes, Province of Camarines Norte to Balocbaloc Point in the Municipality of Tinambac, Province of Camarines Sur, until December 31, 1954, only.

Thereafter, the provisions of said Executive Order No. 22 absolutely prohibiting fishing by means of trawls in all the waters comprised within the San Miguel Bay shall be revived and given full force and effect as originally provided therein.

Done in the City of Manila, this 2nd day of November, in the year of Our Lord, nineteen hundred and fifty-four and of the Independence of the Philippines, the ninth. (50 Off. Gaz. 5198)

It is likewise admitted that petitioners assailed the validity of said executive orders in their petition for a writ of injunction and/or declaratory relief filed with the Court of First Instance of Manila, and that the lower court, upon declaring Executive Orders Nos. 22, 66 and 80 invalid, issued an order requiring the Secretary of Agriculture and Natural Resources and the Director of Fisheries to post a bond for P30,000 if the writ of injunction restraining them from enforcing the executive orders in question must be stayed.

The Solicitor General avers that the constitutionality of an executive order cannot be ventilated in a declaratory relief proceeding. We find this untenable, for this Court taking cognizance of an appeal from the decision of the lower court in the case of Hilado vs. De la Costa, et al., 83 Phil., 471, which involves the constitutionality of another executive order presented in an action for declaratory relief, in effect accepted the propriety of such action.

This question being eliminated, the main issues left for Our determination with respect to defendants' appeal (G.R. No. L-9191), are:

(1) Whether the Secretary of an Executive Department and the Director of a Bureau, acting in their capacities as such Government officials, could lawfully be required to post a bond in an action against them;

(2) Whether the President of the Philippines has authority to issue Executive Orders Nos. 22, 66 and 80, banning the operation of trawls in San Miguel Bay, or, said in other words, whether said Executive Orders Nos. 22, 66 and 80 were issued in accordance with law; and.

(3) Whether Executive Orders Nos. 22, 66 and 80 were valid, for the issuance thereof was not in the exercise of legislative powers unduly delegated to the President.

Counsel for both parties presented commendable exhaustive defenses in support of their respective stands. Certainly, these cases deserve such efforts, not only because the constitutionality of an act of a coordinate branch in our tripartite system of Government is in issue, but also because of the number of inhabitants, admittedly classified as "subsistence fishermen", that may be affected by any ruling that We may promulgate herein.

I. As to the first proposition, it is an elementary rule of procedure that an appeal stays the execution of a judgment. An exception is offered by section 4 of Rule 39 of the Rules of Court which provides that:

SEC. 4. INJUNCTION, RECEIVERSHIP AND PATENT ACCOUNTING, NOT STAYED. — Unless otherwise ordered by the court, a judgment in an action for injunction or in a receivership action, or a judgment or order directing an accounting in an action for infringement of letter patent, shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal. The trial court, however, in its discretion, when an appeal is taken from a judgement granting, dissolving or denying an injunction, may make an order suspending, modifying, restoring, or granting such injunction during the pendency of an appeal, upon such terms as to bond or otherwise as it may consider proper for the security of the rights of the adverse party.

This provision was the basis of the order of the lower court dated February 19, 1955, requiring the filing by the respondents of a bond for P30,000 as a condition for the non-issuance of the injunction prayed for by plaintiffs therein, and which the Solicitor General charged to have been issued in excess of jurisdiction. The State's counsel, however, alleges that while judgment could be stayed in injunction, receivership and patent accounting cases and although the complaint was styled "Injunction, and/or Declaratory Relief with Preliminary Injunction", the case is necessarily one for declaratory relief, there being no allegation sufficient to convince the Court that the plaintiffs intended it to be one for injunction. But aside from the title of the complaint, We find that plaintiffs pray for the declaration of the nullity of Executive

Order Nos. 22, 66 and 80; the issuance of a writ of preliminary injunction, and for such other relief as may be deemed just and equitable. This Court has already held that there are only two requisites to be satisfied if an injunction is to issue, namely, the existence of the right sought to be protected, and that the acts against which the injunction is to be directed are violative of said right (North Negros Sugar Co., Inc.vs. Serafin Hidalgo, 63 Phil., 664). There is no question that at least 11 of the complaining trawl operators were duly licensed to operate in any of the national waters of the Philippines, and it is undeniable that the executive enactment's sought to be annulled are detrimental to their interests. And considering further that the granting or refusal of an injunction, whether temporary or permanent, rests in the sound discretion of the Court, taking into account the circumstances and the facts of the particular case (Rodulfa vs. Alfonso, 76 Phil,, 225, 42 Off. Gaz., 2439), We find no abuse of discretion when the trial Court treated the complaint as one for injunction and declaratory relief and executed the judgment pursuant to the provisions of section 4 of Rule 39 of the Rules of Court.

On the other hand, it shall be remembered that the party defendants in Civil Case No. 24867 of the Court of First Instance of Manila are Salvador Araneta, as Secretary of Agriculture and Natural Resources, and, Deogracias Villadolid, as Director of Fisheries, and were sued in such capacities because they were the officers charged with duty of carrying out the statutes, orders and regulations on fishing and fisheries. In its order of February 19, 1955, the trial court denied defendants' motion to set aside judgment and they were required to file a bond for P30,000 to answer for damages that plaintiffs were allegedly suffering at that time, as otherwise the injunction prayed for by the latter would be issued.

Because of these facts, We agree with the Solicitor General when he says that the action, being one against herein petitioners as such Government officials, is essentially one against the Government, and to require these officials to file a bond would be indirectly a requirement against the Government for as regards bonds or damages that may be proved, if any, the real party in interest would be the Republic of the Philippines (L. S. Moon and Co.vs. Harrison, 43 Phi., 39; Salgado vs. Ramos, 64 Phil., 724-727, and others). The reason for this pronouncement is understandable; the State undoubtedly is always solvent (Tolentino vs. Carlos 66 Phil., 140; Government of the P. I. vs. Judge of the Court of First Instance of Iloilo, 34 Phil., 167, cited in Joaquin Gutierrez et al. vs. Camus et al. * G.R. No. L-6725, promulgated October 30, 1954). However, as the records show that herein petitioners failed to put up the bond required by the lower court, allegedly due to difficulties encountered with the Auditor General's Office (giving the impression that they were willing to put up said bond but failed to do so for reasons beyond their control), and that the orders subjects of the prohibition and certiorari proceedings in G.R. No. L-8895, were enforced, if at all,2 in accordance with section 4 of Rule 39, which We hold to be applicable to the case at bar, the issue as to the regularity or adequacy of requiring herein petitioners to post a bond, becomes moot and academic.

II. Passing upon the question involved in the second proposition, the trial judge extending the controversy to the determination of which between the Legislative, and Executive Departments of the Government had "the power to close any definite area of the Philippine waters" instead of limiting the same to the real issue raised by the enactment of Executive Orders No. 22, 26 and 80, especially the first and the last "absolutely prohibiting fishing by means trawls in all the waters comprised within the San Miguel Bay", ruled in favor of Congress had not intended to abdicate its power to legislate on the matter, he maintained as stated before, that "until the trawler is outlawed by legislative enactment, it cannot be banned from San Miguel Bay by executive proclamation", and that "the remedy for respondents and population of the coastal towns of Camarines Sur is to go to Legislature," and thus declared said Executive Orders Nos. 22, 66 and 80 invalid".

The Solicitor General, on the contrary, asserts that the President is empowered by law to issue the executive enactment's in question.

Sections 6, 13 and 75 of Act No. 4003, known as the Fisheries Law, the latter two sections as amended by section 1 of Commonwealth Act No. 471, read as follows:

SEC. 6. WORDS AND PHRASES DEFINED. —Words and terms used in this Act shall be construed as follows:

x x x           x x x           x x x

TAKE or TAKING includes pursuing, shooting, killing, capturing, trapping, snaring, and netting fish and other aquatic animals, and all lesser acts, such as disturbing, wounding, stupefying; or placing, setting, drawing, or using any net or other device commonly used to take or collect fish and other aquatic animals, whether they result in taking or not, and includes every attempt to take and every act of assistance to every other person in taking or attempting to take or collect fish and other aquatic animals: PROVIDED, That whenever taking is allowed by law, reference is had to taking by lawful means and in lawful manner.

x x x           x x x           x x x

SEC. 13. PROTECTION OF FRY OR FISH EGGS. — Except for scientific or educational purpose or for propagation, it shall be unlawful to take or catch fry or fish eggs and the small fish, not more than three (3) centimeters long, known as siliniasi, in the territorial waters of the Philippines. Towards this end, the Secretary of Agriculture and Commerce shall be authorized to provide by regulations such restrictions as may be deemed necessary to be imposed on THE USE OF ANY FISHING NET OR FISHING DEVICE FOR THE PROTECTION OF FRY OR FISH EGGS; Provided, however, That the Secretary of Agriculture and Commerce shall permit the taking of young of certain species of fish known as hipon under such restrictions as may be deemed necessary.

SEC. 75. FISH REFUGEES AND SANCTUARIES. — Upon the recommendation of the officer or chief of the bureau, office or service concerned, the Secretary of Agriculture and Commerce may set aside and establish fishery reservation or fish refuges and sanctuaries to be administered in the manner to be prescribed by him. All streams, ponds and waters within the game refuge, birds, sanctuaries, national parks, botanical gardens, communal forest and communal pastures are hereby declared fishing refuges and sanctuaries. It shall be unlawful for any person, to take, destroy or kill in any of the places aforementioned, or in any manner disturb or drive away or take therefrom, any fish fry or fish eggs.

Act No. 4003 further provides as follows:

SEC. 83. OTHER VIOLATIONS. — Any other violation of the provisions of this Act or any rules and regulations promulgated thereunder shall subject the offender to a fine of not more than two hundred pesos, or imprisonment for not more than six months, or both, in the discretion of the Court.

As may be seen from the just quoted provisions, the law declares unlawful and fixes the penalty for the taking (except for scientific or educational purposes or for propagation), destroying or killing of any fish fry or fish eggs, and the Secretary of Agriculture and Commerce (now the Secretary of Agriculture and Natural Resources) is authorized to promulgate regulations restricting the use of any fish net or fishing device (which includes the net used by trawl fishermen) for the protection of fry or fish eggs, as well as to set aside and establish fishery reservations or fish refuges and sanctuaries to be administered in the manner prescribed by him, from which no person could lawfully take, destroy or kill in any of the places aforementioned, or in any manner disturb or drive away or take therefrom any small or immature fish, fry or fish eggs. It is true that said section 75 mentions certain streams, ponds and waters within the game refuges, . . . communal forest, etc., which the law itself declares fish refuges and sanctuaries, but this enumeration of places does not curtail the general and unlimited power of the Secretary of Agriculture and Natural Resources in the first part of section 75, to set aside and establish fishery reservations or fish refuges and sanctuaries, which naturally include seas or bays, like the San Miguel Bay in Camarines.

From the resolution passed at the Conference of Municipal Mayors held at Tinambac, Camarines Sur, on December 18, 1953 (Exh. F), the following manifestation is made:

WHEREAS, the continuous operation of said trawls even during the close season as specified in said Executive Order No. 20 caused the wanton destruction of the mother shrimps laying their eggs and the millions of eggs laid and the inevitable extermination of the shrimps specie; in order to save the shrimps specie from eventual extermination and in order to conserve the shrimps specie for posterity;

In the brief submitted by the NAMFREL and addressed to the President of the Philippines (Exh. 2), in support of the petition of San Miguel Bay fishermen (allegedly 6, 175 in number), praying that trawlers be banned from operating in San Miguel Bay, it is stated that:

The trawls ram and destroy the fish corrals. The heavy trawl nets dig deep into the ocean bed. They destroy the fish foods which lies below the ocean floor. Their daytime catches net millions of shrimps scooped up from the mud. In their nets they bring up the life of the sea: algea, shell fish and star fish . . .

The absence of some species or the apparent decline in the catch of some fishermen operating in the bay may be due to several factors, namely: the indiscriminate catching of fry and immature sizes of fishes, the wide-spread use of explosives inside as well as at the mouth and approaches of the bay, and the extensive operation of the trawls. (p.9, Report of Santos B. Rasalan, Exh. A)

Extensive Operation of Trawls: — The strenuous effect of the operations of the 17 TRAWLS of the demersal fisheries of San Miguel Bay is better appreciated when we consider the fact that out of its about 850 square

kilometers area, only about 350 square kilometers of 5 fathoms up could be trawled. With their continuous operation, is greatly strained. This is shown by the fact that in view of the non-observance of the close season from May to October, each year, majority of their catch are immature. If their operation would continue unrestricted, the supply would be greatly depleted. (p. 11), Report of Santos B. Rasalan, Exh. A)

San Miguel Bay — can sustain 3 to 4 small trawlers (Otter Trawl Explorations in Philippine Waters, Research Report 25 of the Fish and Wildlife Service, United States Department of the Interior, p. 9 Exhibit B).

According to Annex A of the complaint filed in the lower court in Civil Case No. 24867 — G.R. No. L-9191 (Exh. D, p. 53 of the folder of Exhibits), the 18 plaintiffs-appellees operate 29 trawling boats, and their operation must be in a big scale considering the investments plaintiffs have made therefore, amounting to P387,000 (Record on Appeal, p. 16-17).

In virtue of the aforementioned provisions of law and the manifestation just copied, We are of the opinion that with or without said Executive Orders, the restriction and banning of trawl fishing from all Philippine waters come, under the law, within the powers of the Secretary of Agriculture and Natural Resources, who in compliance with his duties may even cause the criminal prosecution of those who in violation of his instructions, regulations or orders are caught fishing with trawls in the Philippine waters.

Now, if under the law the Secretary of Agriculture and Natural Resources has authority to regulate or ban the fishing by trawl which, it is claimed, obnoxious for it carries away fish eggs and fry's which should be preserved, can the President of the Philippines exercise that same power and authority? Section 10(1), Article VII of the Constitution of the Philippines prescribes:

SEC. 10 (1). The President shall have control of all the executive departments, bureaus or offices, exercises general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed.

Section 63 of the Revised Administrative Code reads as follows:

SEC. 63. EXECUTIVE ORDERS AND EXECUTIVE PROCLAMATION. — Administrative acts and commands of the President of the Philippines touching the organization or mode of operation of the Government or rearranging or readjusting any of the district, divisions, parts or ports of the Philippines, and all acts and commands governing the general performance of duties by public employees or disposing of issues of general concern shall be made in executive orders.

x x x           x x x           x x x

Regarding department organization Section 74 of the Revised Administrative Code also provides that:

All executive functions of the government of the Republic of the Philippines shall be directly under the Executive Departments subject to the supervision and control of the President of the Philippines in matters of general policy. The Departments are established for the proper distribution of the work of the Executive, for the performance of the functions expressly assigned to them by law, and in order that each branch of the administration may have a chief responsible for its direction and policy. Each Department Secretary shall assume the burden of, and responsibility for, all activities of the Government under his control and supervision.

For administrative purposes the President of the Philippines shall be considered the Department Head of the Executive Office.

One of the executive departments is that of Agriculture and Natural Resources which by law is placed under the direction and control of the Secretary, who exercises its functions subject to the general supervision and control of the President of the Philippines (Sec. 75, R. A. C.). Moreover, "executive orders, regulations, decrees and proclamations relative to matters under the supervision or jurisdiction of a Department, the promulgation whereof is expressly assigned by law to the President of the Philippines, shall as a general rule, be issued upon proposition and recommendation of the respective Department" (Sec. 79-A, R.A.C.), and there can be no doubt that the promulgation of the questioned Executive Orders was upon the proposition and recommendation of the Secretary of Agriculture and Natural Resources and that is why said Secretary, who was and is called upon to enforce said executive Orders, was made a party defendant in one of the cases at bar (G.R. No. L-9191).

For the foregoing reasons We do hesitate to declare that Executive Orders Nos. 22, 66 and 80, series of 1954, of the President, are valid and issued by authority of law.

III. But does the exercise of such authority by the President constitute and undue delegation of the powers of Congress?

As already held by this Court, the true distinction between delegation of the power to legislate and the conferring of authority or discretion as to the execution of law consists in that the former necessary involves a discretion as to what the law shall be, wile in the latter the authority or discretion as to its execution has to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made (Cruz vs.Youngberg, 56 Phil., 234, 239. See also Rubi, et al. vs. The Provincial Board of Mindoro, 39 Phil., 660).

In the case of U. S. vs. Ang Tang Ho, 43 Phil. 1, We also held:

THE POWER TO DELEGATE. — The Legislature cannot delegate legislative power to enact any law. If Act No. 2868 is a law unto itself, and it does nothing more than to authorize the Governor-General to make rules and regulations to carry it into effect, then the Legislature created the law. There is no delegation of power and it is valid. On the other hand, if the act within itself does not define a crime and is not complete, and some legislative act remains to be done to make it a law or a crime, the doing of which is vested in the Governor-General, the act is delegation of legislative power, is unconstitutional and void.

From the provisions of Act No. 4003 of the Legislature, as amended by Commonwealth Act No. 471, which have been aforequoted, We find that Congress (a) declared it unlawful "to take or catch fry or fish eggs in the territorial waters of the Philippines; (b) towards this end, it authorized the Secretary of Agriculture and Natural Resources to provide by the regulations such restrictions as may be deemed necessary to be imposed on the use of any fishing net or fishing device for the protection of fish fry or fish eggs (Sec. 13); (c) it authorized the Secretary of Agriculture and Natural Resources to set aside and establish fishery reservations or fish refuges and sanctuaries to be administered in the manner to be prescribed by him and declared it unlawful for any person to take, destroy or kill in any of said places, or, in any manner disturb or drive away or take therefrom, any fish fry or fish eggs(See. 75); and (d) it penalizes the execution of such acts declared unlawful and in violation of this Act (No. 4003) or of any rules and regulations promulgated thereunder, making the offender subject to a fine of not more than P200, or imprisonment for not more than 6 months, or both, in the discretion of the court (Sec. 83).

From the foregoing it may be seen that in so far as the protection of fish fry or fish egg is concerned, the Fisheries Act is complete in itself, leaving to the Secretary of Agriculture and Natural Resources the promulgation of rules and regulations to carry into effect the legislative intent. It also appears from the exhibits on record in these cases that fishing with trawls causes "a wanton destruction of the mother shrimps laying their eggs and the millions of eggs laid and the inevitable extermination of the shrimps specie" (Exh. F), and that, "the trawls ram and destroy the fish corrals. The heavy trawl nets dig deep into the ocean bed. They destroy the fish food which lies below the ocean floor. Their daytime catches net millions of shrimps scooped up from the mud. In their nets they bring up the life of the sea" (Exh- 2).

In the light of these facts it is clear to Our mind that for the protection of fry or fish eggs and small and immature fishes, Congress intended with the promulgation of Act No. 4003, to prohibit the use of any fish net or fishing device like trawl nets that could endanger and deplete our supply of sea food, and to that end authorized the Secretary of Agriculture and Natural Resources to provide by regulations such restrictions as he deemed necessary in order to preserve the aquatic resources of the land. Consequently, when the President, in response to the clamor of the people and authorities of Camarines Sur issued Executive Order No. 80 absolutely prohibiting fishing by means of trawls in all waters comprised within the San Miguel Bay, he did nothing but show an anxious regard for the welfare of the inhabitants of said coastal province and dispose of issues of general concern (Sec. 63, R.A.C.) which were in consonance and strict conformity with the law.

Wherefore, and on the strength of the foregoing considerations We render judgement, as follows:(a) Declaring that the issues involved in case G.R. No. L-8895 have become moot, as no writ of preliminary injunction has been issued by this Court the respondent Judge of the Court of First Instance of Manila Branch XIV, from enforcing his order of March 3, 1955; and(b) Reversing the decision appealed from in case G. R. No. L-9191; dissolving the writ of injunction prayed for in the lower court by plaintiffs, if any has been actually issued by the court a quo; and declaring Executive Orders Nos. 22, 66 and 80, series of 1954, valid for having been issued by authority of the Constitution, the Revised Administrative Code and the Fisheries Act.Without pronouncement as to costs. It is so ordered.Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.

THIRD DIVISION[G.R. No. 139813.  January 31, 2001]

JOELBITO-ONON, petitioner, vs. HON. JUDGE NELIA YAP FERNANDEZ, R.T.C. Br. 50 – Puerto Princesa City and Palawan, and ELEGIO QUEJANO, JR., respondents.

D E C I S I O N

GONZAGA-REYES, J.:

This Petition for Certiorari and Prohibition with prayer for the issuance of a temporary restraining order and writ of injunction seeks the reversal of the Order of the Regional Trial Court of Palawan and Puerto Princesa City, [1] Branch 50 in SPL. PROC. NO. 1056 entitled “Elegio F. Quejano, Jr., petitioner vs. Joel Bito-Onon, et. al., respondents” which denied herein petitioner’s motion to dismiss the Petition for Review of the Resolution of the Board of Election Supervisors dated August 25, 1997 in case number L-10-97 filed by herein private respondent with said court.

It appears from the records that the petitioner, Joel Bito-Onon is the duly elected Barangay Chairman of Barangay Tacras, Narra, Palawan and is the Municipal Liga Chapter President for the Municipality of Narra, Palawan.  The private respondent, Elegio Quejano, Jr. on the other hand, is the duly elected Barangay Chairman of Barangay Rizal, Magsaysay, Palawan and is the Municipal Liga Chapter President for the Municipality of Magsaysay, Palawan.  Both Onon and Quejano were candidates for the position of Executive Vice-President in the August 23, 1997 election for the Liga ng Barangay Provincial Chapter of the province of Palawan. Onon was proclaimed the winning candidate in the said election prompting Quejano to file a post proclamation protest with the Board of Election Supervisors (BES), which was decided against him on August 25, 1997.

Not satisfied with the decision of the BES, Quejano filed a Petition for Review of the decision of the BES with the Regional Trial Court of Palawan and Puerto Princesa City (RTC).  On April 26, 1999, Onon filed a motion to dismiss the Petition for Review raising the issue of jurisdiction.  Onon claimed that the RTC had no jurisdiction to review the decisions rendered by the BES in any post proclamation electoral protest in connection with the 1997 Liga ng mga Barangay election of officers and directors.  In his motion to dismiss, Onon claimed that the Supplemental Guidelines for the 1997 Liga ng mga Barangay election issued by the DILG on August 11, 1997 in its Memorandum Circular No. 97-193, providing for review of decisions or resolutions of the BES by the regular courts of law is an ultra viresact and is void for being issued without or in excess of jurisdiction, as its issuance is not a mere act of supervision but rather an exercise of control over the Liga’s internal organization.

On June 22, 1999, the RTC denied Onon’s motion to dismiss.  In its order, the RTC ratiocinated that the Secretary of the Department of Interior and Local Government[2] is vested with the power “to establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and the promotion of local autonomy and monitor compliance thereof by said units.”[3] The RTC added that DILG Circular No. 97-193 was issued by the DILG Secretary pursuant to his rule-making power as provided for under Section 7, Chapter II, Book IV of the Administrative Code.[4] Consequently, the RTC ruled that it had jurisdiction over the petition for review filed by Quejada.[5]

Motion for reconsideration of the aforesaid Order was denied[6] prompting the petitioner to file the present petition wherein the following issues are raised:

A. WHETHER OR NOT THE QUESTIONED PROVISION IN MEMORANDUM CIRCULAR 97-193 WAS ISSUED BY THE DILG SECRETARY IN EXCESS OF HIS AUTHORITY.

B. WHETHER OR NOT THE RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING THE QUESTIONED ORDERS.[7]

In support of his petition, Onon argues that the “Supplemental Guidelines for the 1997 Synchronized Election of the Provincial and Metropolitan Chapters and for the Election of the National Chapter of the Liga ng mga Barangay” contradicts the “Implementing Rules and Guidelines for the 1997 General Elections of the Liga ng mga Barangay Officers and Directors” and is therefore invalid.  Onon alleges that the Liga ng mga Barangay (LIGA) is not a local government unit considering that a local government unit must have its own source of income, a certain number of population, and a specific land area in order to exist or be created as such. Consequently, the DILG only has a limited supervisory authority over the LIGA.  Moreover, Onon argues that even if the DILG has supervisory authority over the LIGA, the act of the DILG in issuing Memorandum Circular No. 97-193 or the supplemental rules and guidelines for the conduct of the 1997 LIGA elections had the effect of modifying, altering and nullifying the rules prescribed by the National Liga Board.  Onon posits that the issuance of said guidelines allowing an appeal of the decision of the BES to the regular courts rather than to the National Liga Board is no longer an exercise of supervision but an exercise of control.[8]

In his comment to the petition, private respondent Quejano argues that the Secretary of the DILG has competent authority to issue rules and regulations like Memorandum Circular No. 97-893.  The Secretary of DILG’s rule-making

power is conferred by the Administrative Code.  Considering that the Memorandum Circular was issued pursuant to his rule making power, Quejano insists that the lower court did not commit any reversible error when it denied Onon’s motion to dismiss.[9]

On the other hand, the public respondent represented herein by the Solicitor General, filed a separate Manifestation and Motion in Lieu of Comment agreeing with the position of petitioner Onon.  The Solicitor General affirms Onon’s claim that in issuing the questioned Memorandum Circular, the Secretary of the DILG effectively amended the rules and guidelines promulgated by National Liga Board.  This act was no longer a mere act of supervision but one of control.  The Solicitor General submits that the RTC committed grave abuse of discretion in not dismissing the petition for review of the BES decision filed before it for failure of the petitioner to exhaust the rightful remedy which was to appeal to the National Liga Board.[10]

On October 27, 1999, this Court denied petitioner Onon’s motion for the issuance of restraining order for lack of merit.After a careful review of the case, we sustain the position of the petitioner.

The resolution of the present controversy requires an examination of the questioned provision of Memorandum Circular No. 97-193 and the Implementing Rules and Guidelines for the 1997 General Elections of the Liga ng mga Barangay Officers and Directors (GUIDELINES). The memorandum circular reads, insofar as pertinent, as follows:

“Any post-proclamation protest must be filed with the BES within twenty-four (24) hours from the closing of the election.  The BES shall decide the same within forty-eight (48) hours from receipt thereof.  The decision of the BES shall be final and immediately executory without prejudice to the filing of a Petition for Review with the regular courts of law.”[11] (emphasis supplied)

On the other hand, the GUIDELINES provides that the BES shall have the following among its duties:

“To resolve any post-proclamation electoral protest which must be submitted in writing to this Board within twenty-four (24) hours from the close of election; provided said Board shall render its decision within forty-eight (48) hours from receipt hereof; and provided further that the decision must be submitted to the National Liga Headquarters within twenty-four (24) hours from the said decision.  The decision of the Board of Election Supervisors in this respect shall be subject to review by the National Liga Board the decision of which shall be final and executory.”[12] (emphasis supplied)

Memorandum Circular No. 97-193 was issued by the DILG Secretary pursuant to the power of general supervision of the President over all local government units which was delegated to the DILG Secretary by virtue of Administrative Order No. 267 dated February 18, 1992.[13] The President’s power of general supervision over local government units is conferred upon him by the Constitution.[14] The power of supervision is defined as “the power of a superior officer to see to it that lower officers perform their functions in accordance with law.”[15] This is distinguished from the power of control or “the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter.”[16]

On many occasions in the past, this court has had the opportunity to distinguish the power of supervision from the power of control.  In Taule vs. Santos,[17] we held that the Chief Executive wielded no more authority than that of checking whether a local government or the officers thereof perform their duties as provided by statutory enactments.  He cannot interfere with local governments provided that the same or its officers act within the scope of their authority.  Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.[18] Officers in control lay down the rules in the doing of an act.  If they are not followed, it is discretionary on his part to order the act undone or re-done by his subordinate or he may even decide to do it himself.  Supervision does not cover such authority.  Supervising officers merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them.  If the rules are not observed, he may order the work done or re-done to conform to the prescribed rules.  He cannot prescribe his own manner for the doing of the act.[19]

Does the President’s power of general supervision extend to the liga ng mga barangay, which is not a local government unit?[20]

We rule in the affirmative.  In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union created by law or by authority of law, whose members are either appointed or elected government officials.  The Local Government Code[21] defines the liga ng mga barangay as an organization of all barangays for the primary purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions thereto.[22] The liga shall have chapters at the municipal, city, provincial and metropolitan political subdivision levels.  The municipal and city chapters of the liga shall be composed of the barangay representatives of the municipal and city barangays respectively.  The duly elected presidents

of the component municipal and city chapters shall constitute the provincial chapter or the metropolitan political subdivision chapter.  The duly elected presidents of highly urbanized cities, provincial chapters, the Metropolitan Manila chapter and metropolitan political subdivision chapters shall constitute the National Liga ng mga Barangay.[23]

The liga at the municipal, city, provincial, metropolitan political subdivision, and national levels directly elect a president, a vice-president and five (5) members of the board of directors.  The board shall appoint its secretary and treasurer and create such other positions as it may deem necessary for the management of the chapter.[24]

The ligas are primarily governed by the provisions of the Local Government Code.[25] However, their respective constitution and by-laws shall govern all other matters affecting the internal organization of the liga not otherwise provided for in the Local Government Code provided that the constitution and by-laws shall be suppletory to the provisions of Book III, Title VI of the Local Government Code and shall always conform to the provisions of the Constitution and existing laws.[26]

Having in mind the foregoing principles, we rule that Memorandum Circular No. 97-193 of the DILG insofar as it authorizes the filing a Petition for Review of the decision of the BES with the regular courts in a post proclamation electoral protest is of doubtful constitutionality.  We agree with both the petitioner and the Solicitor General that in authorizing the filing of the petition for review of the decision of the BES with the regular courts, the DILG Secretary in effect amended and modified the GUIDELINES promulgated by the National Liga Board and adopted by the LIGA which provides that the decision of the BES shall be subject to review by the National Liga Board.  The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of control, which the President does not have over the LIGA.  Although the DILG is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely “monitoring compliance” by local government units of such issuances.[27] To monitor means “to watch, observe or check” and is compatible with the power of supervision of the DILG Secretary over local governments, which is limited to checking whether the local government unit concerned or the officers thereof perform their duties as per statutory enactments.[28] Besides, any doubt as to the power of the DILG Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.[29]

The public respondent judge therefore committed grave abuse of discretion amounting to lack or excess of jurisdiction in not dismissing the respondent’s Petition for Review for failure to exhaust all administrative remedies and for lack of jurisdiction.

WHEREFORE, the instant petition is hereby GRANTED.  The Order of the Regional Trial Court dated June 22, 1999 is REVERSED and SET ASIDE.  The Petition for Review filed by the private respondent docketed as SPL. PROC. NO. 1056 is DISMISSED.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

G.R. No. L-34674             October 26, 1931MAURICIO CRUZ, petitioner-appellant, vs.STANTON YOUNGBERG, Director of the Bureau of Animal Industry, respondent-appellee.Jose Yulo for appellant.Office of the Solicitor-General Reyes for appellee. 

OSTRAND, J.:

          This is a petition brought originally before the Court of First Instance of Manila for the issuance of a writ of mandatory injunction against the respondent, Stanton Youngberg, as Director of the Bureau of Animal Industry, requiring him to issue a permit for the landing of ten large cattle imported by the petitioner and for the slaughter thereof. The petitioner attacked the constitutionality of Act No. 3155, which at present prohibits the importation of cattle from foreign countries into the Philippine Islands.

          Among other things in the allegation of the petition, it is asserted that "Act No. 3155 of the Philippine Legislature was enacted for the sole purpose of preventing the introduction of cattle diseases into the Philippine Islands from foreign countries, as shown by an explanatory note and text of Senate Bill No. 328 as introduced in the Philippine Legislature, ... ." The Act in question reads as follows:

          SECTION 1. After March thirty-first, nineteen hundred and twenty-five existing contracts for the importation of cattle into this country to the contrary notwithstanding, it shall be strictly prohibited to import, bring or introduce into the Philippine Islands any cattle from foreign countries: Provided, however, That at any time after said date, the Governor-General, with the concurrence of the presiding officers of both Houses, may raise such prohibition entirely or in part if the conditions of the country make this advisable or if decease among foreign cattle has ceased to be a menace to the agriculture and live stock of the lands.

          SEC. 2. All acts or parts of acts inconsistent with this Act are hereby repealed.

          SEC. 3. This Act shall take effect on its approval.

          Approved, March 8, 1924.

          The respondent demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was based on two reasons, namely, (1) that if Act No. 3155 were declared unconstitutional and void, the petitioner would not be entitled to the relief demanded because Act No. 3052 would automatically become effective and would prohibit the respondent from giving the permit prayed for; and (2) that Act No. 3155 was constitutional and, therefore, valid.

          The court sustained the demurrer and the complaint was dismissed by reason of the failure of the petitioner to file another complaint. From that order of dismissal, the petitioner appealed to this court.

          The appellee contends that even if Act No. 3155 be declared unconstitutional by the fact alleged by the petitioner in his complaint, still the petitioner can not be allowed to import cattle from Australia for the reason that, while Act No. 3155 were declared unconstitutional, Act No. 3052 would automatically become effective. Act No. 3052 reads as follows:

          SECTION 1. Section seventeen hundred and sixty-two of Act Numbered Twenty-seven hundred and eleven, known as the Administrative Code, is hereby amended to read as follows:

          "SEC. 1762. Bringing of animals imported from foreign countries into the Philippine Islands. — It shall be unlawful for any person or corporation to import, bring or introduce live cattle into the Philippine Islands from any foreign country. The Director of Agriculture may, with the approval of the head of the department first had, authorize the importation, bringing or introduction of various classes of thoroughbred cattle from foreign countries for breeding the same to the native cattle of these Islands, and such as may be necessary for the improvement of the breed, not to exceed five hundred head per annum: Provided, however, That the Director of Agriculture shall in all cases permit the importation, bringing or introduction of draft cattle and bovine cattle for the manufacture of serum:Provided, further, That all live cattle from foreign countries the importation, bringing or introduction of which into the Islands is authorized by this

Act, shall be submitted to regulations issued by the Director of Agriculture, with the approval of the head of the department, prior to authorizing its transfer to other provinces.

          "At the time of the approval of this Act, the Governor-General shall issue regulations and others to provide against a raising of the price of both fresh and refrigerated meat. The Governor-General also may, by executive order, suspend, this prohibition for a fixed period in case local conditions require it."

          SEC. 2. This Act shall take effect six months after approval. Approved, March 14, 1922.

          The petitioner does not present any allegations in regard to Act No. 3052 to show its nullity or unconstitutionality though it appears clearly that in the absence of Act No. 3155 the former act would make it impossible for the Director of the Bureau of Animal Industry to grant the petitioner a permit for the importation of the cattle without the approval of the head of the corresponding department.

          An unconstitutional statute can have no effect to repeal former laws or parts of laws by implication, since, being void, it is not inconsistent with such former laws. (I Lewis Sutherland, Statutory Construction 2nd ed., p. 458, citing McAllister vs. Hamlin, 83 Cal., 361; 23 Pac., 357; Orange Country vs. Harris, 97 Cal., 600; 32 Pac., 594; Carr vs. State, 127 Ind., 204; 11 L.R.A., 370, etc.)

          This court has several times declared that it will not pass upon the constitutionality of statutes unless it is necessary to do so (McGirr vs. Hamilton and Abreu, 30 Phil., 563, 568; Walter E. Olsen & Co. vs. Aldanese and Trinidad, 43 Phil., 259) but in this case it is not necessary to pass upon the validity of the statute attacked by the petitioner because even if it were declared unconstitutional, the petitioner would not be entitled to relief inasmuch as Act No. 3052 is not in issue.

          But aside from the provisions of Act No. 3052, we are of the opinion that Act No. 3155 is entirely valid. As shown in paragraph 8 of the amended petition, the Legislature passed Act No. 3155 to protect the cattle industry of the country and to prevent the introduction of cattle diseases through importation of foreign cattle. It is now generally recognized that the promotion of industries affecting the public welfare and the development of the resources of the country are objects within the scope of the police power (12 C.J., 927; 6 R.C.L., 203-206 and decisions cited therein; Reid vs. Colorado, 187 U.S., 137, 147, 152; Yeazel vs. Alexander, 58 Ill., 254). In this connection it is said in the case of Punzalan vs. Ferriols and Provincial Board of Batangas (19 Phil., 214), that the provisions of the Act of Congress of July 1, 1902, did not have the effect of denying to the Government of the Philippine Islands the right to the exercise of the sovereign police power in the promotion of the general welfare and the public interest. The facts recited in paragraph 8 of the amended petition shows that at the time the Act No. 3155 was promulgated there was reasonable necessity therefor and it cannot be said that the Legislature exceeded its power in passing the Act. That being so, it is not for this court to avoid or vacate the Act upon constitutional grounds nor will it assume to determine whether the measures are wise or the best that might have been adopted. (6 R.C.L., 243 and decisions cited therein.)1awphil.net

          In his third assignment of error the petitioner claims that "The lower court erred in not holding that the power given by Act No. 3155 to the Governor-General to suspend or not, at his discretion, the prohibition provided in the act constitutes an unlawful delegation of the legislative powers." We do not think that such is the case; as Judge Ranney of the Ohio Supreme Court in Cincinnati, Wilmington and Zanesville Railroad Co. vs. Commissioners of Clinton County (1 Ohio St., 77, 88) said in such case:

          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.

          Under his fourth assignment of error the appellant argues that Act No. 3155 amends section 3 of the Tariff Law, but it will be noted that Act No. 3155 is not an absolute prohibition of the importation of cattle and it does not add any provision to section 3 of the Tariff Law. As stated in the brief of the Attorney-General: "It is a complete statute in itself. It does not make any reference to the Tariff Law. It does not permit the importation of articles, whose importation is prohibited by the Tariff Law. It is not a tariff measure but a quarantine measure, a statute adopted under the police power of the Philippine Government. It is at most a `supplement' or an `addition' to the Tariff Law. (See MacLeary vs. Babcock, 82 N.E., 453, 455; 169 Ind., 228 for distinction between `supplemental' and `amendatory' and O'Pry vs. U.S., 249 U.S., 323; 63 Law. ed., 626, for distinction between `addition' and `amendment.')"

          The decision appealed from is affirmed with the costs against the appellant. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Romualdez, Villa-Real, and Imperial, JJ., concur.

G.R. No. L-50908 January 31, 1984MARY CONCEPCION BAUTISTA and ENRIQUE D. BAUTISTA, petitioners, vs.ALFREDO L. JUINIO, ROMEO F. EDU and FIDEL V. RAMOS, respondents.Mary Concepcion Bautista for and in his own behalf.The Solicitor General for respondents. 

FERNANDO, C.J.:

The validity of an energy conservation measure, Letter of Instruction No. 869, issued on May 31, 1979 — the response to the protracted oil crisis that dates back to 1974 — is put in issue in this prohibition proceeding filed by petitioners, spouses Mary Concepcion Bautista and Enrique D. Bautista, for being allegedly violative of the due process and equal protection guarantees 1 of the Constitution. The use of private motor vehicles with H and EH plates on week-ends and holidays was banned from "[12:00] a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the holiday." 2 Motor vehicles of the following classifications are exempted: (a) S (Service); (b) T (Truck); (e) DPL (Diplomatic); (d) CC (Consular Corps); (e) TC (Tourist Cars). 3 Pursuant thereto, respondent Alfredo L. Juinio, then Minister of Public Works, Transportation and Communications and respondent Romeo P. Edu, then Commissioner of Land Transportation Commission issued on June 11, 1979, Memorandum Circular No. 39, which imposed "the penalties of fine, confiscation of vehicle and cancellation of registration on owners of the above-specified vehicles" found violating such Letter of Instruction. 4It was then alleged by petitioners that "while the purpose for the issuance of the LOI 869 is laudable, to wit, energy conservation, the provision banning the use of H and EH [vehicles] is unfair, discriminatory, [amounting to an] arbitrary classification" and thus in contravention of the equal protection clause. 5 Moreover, for them, such Letter of Instruction is a denial of due process, more specifically, "of their right to use and enjoy their private property and of their freedom to travel and hold family gatherings, reunions and outings on week-ends and holidays," inviting attention to the fact that others not included in the ban enjoying "unrestricted freedom." 6 It would follow, so they contend that Memorandum Circular No. 39 imposing penalties of fine, confiscation of the vehicle and cancellation of license is likewise unconstitutional, for being violative of the doctrine of "undue delegation of legislative power." 7 It is to be noted that such Memorandum Circular does not impose the penalty of confiscation but merely that of impounding, fine, and for the third offense that of cancellation of certificate of registration and for the rest of the year or for ninety days whichever is longer.

This Court gave due course to the petition requiring respondent to answer. There was admission of the facts as substantially alleged except, as previously noted, that the ban starts at 12:00 a.m. rather than 1:00 a.m. of a Saturday or of a holiday and as to the mention of a Willy's Kaiser jeep being registered in the name of a certain Teresita Urbina, about which respondents had no knowledge. There was a denial of the allegations that the classification of vehicles into heavy H and extra heavy (EH) on the other hand and light and bantam on the other hand was violative of equal protection and the regulation as to the use of the former cars on the dates specified a transgression of due process. The answer likewise denied that there was an undue delegation of legislative power, reference being made to the Land Transportation and Traffic Code. 8 There was also a procedural objection raised, namely, that what is sought amounts at most to an advisory opinion rather than an ajudication of a case or controversy.

Petitioners filed a motion to be allowed to reply to the answer. It was granted. The reply, considering its exhaustive character serving as its memorandum, stressed anew what it emphasized as the arbitrary, unreasonable, and oppressive aspects of the challenged Letter of Instruction and Memorandum Circular No. 39. It disputed what it characterized as an "erroneous and arbitrary presumption that heavy car owners unnecessarily use and therefore waste gasoline whenever they drive their cars on week-ends and holidays;" 9 it stigmatized the ban as defeating its "avowed purpose in the case of the affluent who own not only heavy limousines but also many small cars [as] they may be compelled to use at least two small cars;" 10 referred to the high cost of taxis or other public transports for those "not able to afford expensive small cars [possibly] only one heavy and possible old model;" 11 cited the case of "many eight cylinder vehicles which because of their weight have been registered as light but in fact consume more or as much gasoline as the banned vehicles." 12 Their conclusion is that "the ban imposed, in result and effect is class legislation." 13

The parties were required to submit memoranda. Respondents did so but not petitioners. They relied on their reply to the answer — as noted, a rather comprehensive pleading. For reasons to be set forth, this Court holds that the petition cannot prosper.

1. First as to the procedural objection. In the memorandum for respondents, one of the issues raised was whether "the power of judicial review may be invoked considering the inadequacy of the record and the highly abstract and academic questions raised by the petitioners." 14 It is inaccurate to say that the record is inadequate. It does not admit of doubt that the ban applies to petitioners who are "the registered owners of an eight cylinder 1969 Buick, and the vendees of a six

cylinder Willy's kaiser jeep, which are both classified as heavy or H." 15 To that extent, therefore, the enforcement of the assailed Letter of Instruction will amount to a deprivation of what otherwise would be a valid exercise of a property right. Thus they fall squarely within "the unchallenged rule" as to who may raise a constitutional question, namely, to quote the language of Justice Laurel in the leading case of People v. Vera, 16"that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result of its enforcement. 17 Moreover, that rule has been considerably relaxed. 18 The question then is neither abstract nor academic as contended by respondents.

2. There is, however, this formidable obstacle that confronts petitioners. What they seek is for this Court to hold that a Letter of Instruction, a regulatory measure precisely enacted to cope with the serious and grave problem of energy conservation, is void on its face. Such a task is rendered unusually difficult by what has been referred to by Justice Laurel in the leading case of Angara v. Electoral Commission 19 as the "presumption of constitutionality" and by the same jurist in the case of People v. Vera 20 in slightly different words "a presumption that such an act falls within constitutional limitations." There is need then for a factual foundation of invalidity. In the language ofErmita-Malate Hotel & Motel Operations Association, Inc. v. City Mayor or Manila: "It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here. The principle has been nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co., where the American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter thus: 'The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute.' "21

3. It is true, of course, that there may be instances where a police power measure may, because of its arbitrary, oppressive or unjust character, be held offensive to the due process clause and, therefore, may, when challenged in an appropriate legal proceeding, be declared void on its face. This is not one of them. A recital of the whereas clauses of the Letter of Instruction makes it clear. Thus: "[Whereas], developments in the international petroleum supply situation continue to follow a trend of limited production and spiralling prices thereby precluding the possibility of immediate relief in supplies within the foreseeable future; [Whereas], the uncertainty of fuel supply availability underscores a compelling need for the adoption of positive measures designed to insure the viability of the country's economy and sustain its developmental growth; [Whereas], to cushion the effect of increasing oil prices and avoid fuel supply disruptions, it is imperative to adopt a program directed towards the judicious use of our energy resources complemented with intensified conservation efforts and efficient utilization thereof; * * *." 22That is undeniable is that the action taken is an appropriate response to a problem that presses urgently for solution. It may not be the only alternative, but its reasonableness is immediately apparent. Thus, to repeat, substantive due process, which is the epitome of reasonableness and fair play, is not ignored, much less infringed.

4. In the interplay between such a fundamental right and police power, especially so where the assailed governmental action deals with the use of one's property, the latter is accorded much leeway. That is settled law. What is more, it is good law. Due process, therefore, cannot be validly invoked. As stressed in the cited Ermita-Malate Hotel decision: "To hold otherwise would be to unduly restrict and narrow the scope of police power which has been properly characterized as the most essential, insistent and the least limitable of powers, extending as it does 'to all the great public needs.' It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to promote public health, public morals, public safety and the general welfare. Negatively put, police power is 'that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society.' " 23

5. The due process question having been disposed of, there is still the objection based on the equal protection clause to be considered. A governmental act may not be offensive to the due process clause, but may run counter to such a guarantee. Such is the case when there is no rational basis for the classification followed. That is the point raised by petitioners. For them, there is no rational justification for the ban being imposed on vehicles classified as heavy (H) and extra-heavy (EH), for precisely those owned by them fall within such category. Tested by the applicable standard that must be satisfied to avoid the charge of a denial of equal protection, the objection of petitioners is shown to be lacking in merit. Such a classification on its face cannot be characterized as an affront to reason. A legal norm according to J.M. Tuason & Co., Inc. vs. Land Tenure Administration, 24 "whether embodied in a rule, principle, or standard, constitutes a defense against anarchy at one extreme and tyranny at the other. Thereby, people living together in a community with its myriad and complex problems can minimize the friction and reduce the conflicts, to assure, at the very least, a peaceful ordering of existence. The Ideal situation is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity, which is of the very essence of the Idea of law. The actual, given things as they are and likely to

continue to be, cannot approximate the Ideal. Nor is the law susceptible to the reproach that it does not take into account the realties of the situation. * * * To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not Identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 25

6. Nor does it militate against the validity of the Letter of Instruction just because the ban imposed does not go as far as it could have and therefore could be less efficacious in character. That was the solution which for the President expressing a power validly lodged in him, recommended itself. There was a situation that called for a corrective measure. He decided that what was issued by him would do just that or, at the very least, help in easing the situation. That it did not cover other matters which could very well have been regulated does not call for a declaration of nullity. The President, to paraphrase Lutz v. Araneta, 26 "is not required by the Constitution to adhere to the policy of all or none." 27 It is quite obvious then that no equal protection question arises.

7. It may not be amiss to refer to a 1981 American Supreme Court decision, Minnesota v. Clover Leaf Creamery Company. 28 Respondent along with several other business corporations adversely affected involved in the manufacture and utilization of plastic milk containers filed suit in a Minnesota district court seeking to enjoin enforcement of a Minnesota statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard, milk cartons. After conducting extensive evidentiary hearings, the Minnesota court enjoined enforcement of the statute, finding that it violated among others the equal protection clause of the Fourteenth Amendment to the Federal Constitution. The Minnesota Supreme Court affirmed. On certiorari, the United States Supreme Court reversed, with only Justice Stevens dissenting. The opinion by Justice Brennan noted that "proponents of the legislation argued that it would promote resource conservation, ease solid waste disposal problems, and conserve energy."29 That sufficed for the Court to conclude "that the ban on plastic nonreturnable milk containers bears a rational relation to the State's objectives, and must be sustained under the Equal Protection Clause." 30 It does show that notwithstanding the "new equal protection approach" with its emphasis on "suspect classification" and "fundamental rights and interests standard," a concept so ably expounded by professor Gunther, the "rational relation test" 31 still retains its validity. Not that there could be any objection to the classification here followed as being in any way susceptible to such a pejorative expression as "suspect" or that the assailed Letter of Instruction does not qualify under "the fundamental rights and interests" standard

8. There was set forth in the petition what were referred to as "other reasonable measures which the authorities concerned with energy conservation can take immediately, which are in fact acceptable and obviously called for and should have been done long ago, to wit: 1. require and establish taxi stands equipped with efficient telephone and communication systems; 2. strict implementation and observance of cargo truck hours on main arteries; 3. strict observance of traffic rules; 4. effective solution of traffic problems and decongestion of traffic through rerouting and quick repair of roads and efficient operation of double decker buses; 5. rationing of gasoline to avoid panic buying and give the private car owner the option and responsibility of deciding on the use of his allocation; 6. allow neon and electrically devised advertising signs only from five o'clock p.m. to nine o'clock p.m. 7. prohibit immediately the importation of heavy and luxury cars and seriously re-examine the car manufacturing program." 32 Admittedly, such measures are conducive to energy conservation. The question before us however is limited to whether or not Letter of Instruction 869 as implemented by Memorandum Circular No. 39 is violative of certain constitutional rights. It goes no further than that. The determination of the mode and manner through which the objective of minimizing the consumption of oil products may be attained is left to the discretion of the political branches. 33 Absent therefore the alleged infringement of constitutional rights, more precisely the due process and equal protection guarantees, this Court cannot adjudge Letter of Instruction No. 869 as tainted by unconstitutionality.

9. It was likewise contended that Memorandum Circular No. 39, issued by the then respondent Minister of Public Works, Transportation and Communications, and then respondent Land Transportation Commissioner, imposing the penalties "of fine, confiscation of vehicle and cancellation of license is likewise unconstitutional," petitioners invoking the principle of non-delegation of legislative power. 34 To that extent that a Letter of Instruction may be viewed as an exercise of the decree-making power of the President, then such an argument is futile. If, however, viewed as a compliance with the duty to take care that the laws be faithfully executed, as a consequence of which subordinate executive officials may in turn issue implementing rules and regulations, then the objection would properly be considered as an ultra vires allegation. There is this relevant excerpt from Teoxon v. Member of the Board of Administrators: 35 "1. The recognition of the power of

administrative officials to promulgate rules in the implementation of the statute, necessarily limited to what is provided for in the legislative enactment, may be found in the early case of United States v. Barrias decided in 1908. Then came, in a 1914 decision, United States v. Tupasi Molina, a delineation of the scope of such competence. Thus: 'Of course the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect the provisions of the law, they are valid.' In 1936, in People v. Santos, this Court expressed its disapproval of an administrative order that would amount to an excess of the regulatory power vested in an administrative official. We reaffirmed such a doctrine in a 1951 decision, where we again made clear that where an administrative order betrays inconsistency or repugnancy to the provisions of the Act, 'the mandate of the Act must prevail and must be followed.' Justice Barrera, speaking for the Court in Victorias Milling Company, Inc. v. Social Security Commission, citing Parker as well as Davis did tersely sum up the matter thus: 'A rule is binding on tile courts so long as the procedure fixed for its promulgation is followed and its scope is within the statutory granted by the legislature, even if the courts are not in agreement with the policy stated therein or its innate wisdom * * *. On the other hand, administrative interpretation of the law is at best merely advisory, for it is the courts that finally determine what the law means.' It cannot be otherwise as the Constitution limits the authority of the President, in whom all executive power resides, to take care that the laws be faithfully executed. No lesser administrative executive office or agency then can, contrary to the express language of the Constitution, assert for itself a more extensive prerogative." 36 It was alleged in the Answer of Solicitor General Estelito P. Mendoza that Letter of Instruction 869 and Memorandum Circular No. 39 were adopted pursuant to the Land Transportation and Traffic Code. 37 It contains a specific provision as to penalties. 38 Thus: "For violation of any provisions of this Act or regulations promulgated pursuant hereto, not hereinbefore specifically punished, a fine of not less than ten nor more than fifty pesos shall be imposed." 39 Memorandum Circular No. 39 cannot be held to be ultra vires as long as the fine imposed is not less than ten nor more than fifty pesos. As to suspension of registration, 40 the Code, insofar as applicable, provides: "Whenever it shall appear from the records of the Commission that during any twelve-month period more than three warnings for violations of this Act have been given to the owner of a motor vehicle, or that the said owner has been convicted by a competent court more than once for violation of such laws, the Commissioner may, in his discretion, suspend the certificate of registration for a period not exceeding ninety days and, thereupon, shall require the immediate surrender of the number plates * * *." 41 It follows that while the imposition of a fine or the suspension of registration under the conditions therein set forth is valid under the Land Transportation and Traffic Code, the impounding of a vehicle finds no statutory justification. To apply that portion of Memorandum Circular No. 39 would be ultra vires. It must likewise be made clear that a penalty even if warranted can only be imposed in accordance with the procedure required by law. 42

WHEREFORE, the petition is dismissed.

Aquino, Guerrero, De Castro, Melencio-Herrera, Escolin, Relova and Gutierrez, Jr., JJ., concur. Makasiar and Concepcion J., took no part.

G.R. No. 156559RODOLFO S. DE JESUS, EDELWINA DG. PARUNGAO, and REBECCA A. BARBO,                                                                                                                                                                         Petitioners,                                                                        versus -                                             CIVIL SERVICE COMMISSION(CSC) and LWUA EMPLOYEES ASSOCIATION FOR PROGRESS,(LEAP) Represented by Its Chairman,          LEONARDO C. CRUZ,                                                                                           Respondents.          September 30, 2005 

DECISION 

 

PANGANIBAN, J.: 

ords and phrases in a statute must be given their natural, ordinary, and commonly accepted meaning.  Due regard should be given to the context in which they are used.  Settled is the rule that under Section 13 of Presidential Decree (PD) 198, per diem is precisely intended to be the compensation of members of the board of directors of water districts.  By specifying the compensation they are entitled to receive, limiting the amount they are allowed to receive each month, and stating in the same paragraph that they shall receive no compensation other than the specified per diems, the law quite clearly mandates that directors of water districts be authorized to receive only those per diems.  No other compensation or allowance in whatever form shall be given to or received by them.

 The Case

           Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, challenging the July 10, 2001 Decision [2] of the Court of Appeals (CA) in CA-GR SP No. 40613, as well as the December 11, 2002 CA Resolution [3]denying petitioners’ Motion for Reconsideration.  The decretal portion of the assailed Decision reads:

 “WHEREFORE, premises considered, the petition is partially granted and the assailed

Resolution of the Civil Service Commission dated 11 July 1995 is hereby MODIFIED in accordance with the foregoing disquisition.”[4]

            On the other hand, the July 11, 1995 Resolution[5] of the Civil Service Commission (CSC) mentioned above disposed as follows:

 “WHEREFORE, the Commission hereby rules that it is illegal for any LWUA officer or employee

who sits as member of the board of directors of a water district to receive and collect any additional, double, or indirect compensation from said water district, except per diems pursuant to Section 13 of PD 198, as amended.”[6]

   

The Facts 

          The facts are narrated by the CA as follows:           “The LWUA Employees Association for Progress (LEAP), through its Chairman, Leonardo C. Cruz, filed with the CSC a complaint against Camilo P. Cabili and Antonio R. De Vera, Chairman of the Board of Trustees and Administrator, respectively, of the Local Water Utilities Administration (LWUA) for alleged violation of RA 6713, otherwise known as the ‘Code of Conduct and Ethical Standards for Public Officials and Employees’.           “The complaint stemmed from the alleged failure or refusal of Cabili and De Vera to give due course or respond to the Memorandum dated 26 August 1994 of LEAP requesting investigation on the allegation of columnist Lito A. Catapusan in the ‘Beatwatch’ column of the 23 August 1994 issue of the Manila Bulletin that Water Districts are ‘milking cows’ of certain LWUA officials. LEAP likewise questioned the propriety and legality of the act of LWUA Deputy Administrator Rodolfo de Jesus in collecting/receiving per diems, RATA, discretionary fund, and other extraordinary and miscellaneous expenses from the Olongapo City Water District where he was designated as member of the board of directors, aside from what he was already receiving from his present position. 

W

          “In his comment to LEAP’s complaint, LWUA Administrator De Vera claimed, inter alia, that under the LWUA Charter (PD 198 as amended), LWUA is vested with corporate authority to take over the policy-making and management functions of defaulting water districts in order to protect its financial investment. Section 8 of the Decree authorizes LWUA to appoint any of its personnel to sit in the board of directors of a water district that has availed financial assistance from LWUA and any such personnel so appointed is entitled to enjoy the rights and privileges pertaining to a regular director. Administrator De Vera thus contended, in essence, that sans any specific guidelines on remuneration, any LWUA personnel who sits as a member of the board of directors of a water district is entitled to receive the same compensation and benefits which other members enjoy, in addition to what he regularly and normally receives as a personnel of LWUA.           “In Resolution No. 95-4073 dated 11 July 1995, the CSC dismissed the charge for violation of RA 6713 against LWUA Chairman Cabili and Administrator De Vera. The CSC however ruled that ‘it is illegal for any LWUA officer or employee who sits as a member of the board of directors of a water district to receive and collect any additional, double or indirect compensation from said water district except per diems pursuant to Section 13 of PD 198, as amended’. The CSC based its ruling on Section 8, Article IX (B) of the 1987 Constitution.           “LWUA Chairman Cabili and Administrator De Vera moved for reconsideration of Resolution No. 95-4073, contending that the CSC erroneously and short-sightedly interpreted the provision of the Constitution relative to additional, double or indirect compensation. Cabili and De Vera likewise questioned the authority of the CSC to act upon the complaint filed by LEAP on the ground that the complaint was not under oath, hence, violative of CSC Resolution No. 94-0521 prescribing the Uniform Rules of Procedure in the Conduct of Administrative Investigation.           “In Resolution No. 96-2079 dated 21 March 1996, the CSC denied the motion for reconsideration and affirmed Resolution No. 95-4073.          “Unsatisfied, LWUA Chairman Cabili and Administrator De Vera elevated the case to [the CA] x x x. 

x x x                       x x x                       x x x           “During the pendency of the x x x petition [with the CA], two (2) separate motions for intervention were filed by Abundio L. Okit on the one hand, and Rodolfo S. de Jesus, Edelwina DG. Parungao and Rebecca A. Barbo, on the other. Movants allege personal and legal interest in the legal issues and subject matter of the instant petition for being members of the board of directors, either as interim director or LWUA-appointed 6th member of water districts.           “There being no opposition from [the parties], the [CA] granted the motions for intervention and allowed intervenors-movants to file their respective petitions-in-intervention.           “Intervenors, in their separate petitions-in-intervention, essentially support the legality of the benefits granted to them by law and/or pertinent LWUA Resolutions in their capacity as members of the board of directors of water districts. These benefits include Representation and Transportation Allowance (RATA), Travel Allowance, Extra-ordinary Miscellaneous Expenses (EME), Christmas Bonus, Cash Gift, Uniform Allowance, Rice Allowance, Medical/Dental Benefit and Productivity Incentive Pay.”[7]          

  

Ruling of the Court of Appeals 

          Tackling the procedural issue first, the CA said that the provision requiring an administrative complaint to be in writing, verified and sworn to by the complainant, is not jurisdictional in nature.  Strict compliance with these formal requisites may be dispensed with in order to serve the ends of substantial justice.  Furthermore, the present petitioners were deemed to have waived their objection to the procedural defect when they failed to raise it seasonably.           Modifying the Resolution of the CSC, the CA gave the qualification that, in view of the proscription on double compensation, the LWUA-designated 6th members of the boards of defaulting water districts were not automatically entitled to the same compensation and benefit package ordinarily granted to regular members of the board of directors.  Allowing those benefits would depend on the following: (1) whether they were expressly allowed by law; (2) their nature; and (3) whether the 6th board members already enjoyed the same benefits as those received by the regular employees of the LWUA. 

          The CA held that Section 13 of PD 198 expressly allowed the directors of water districts to be granted per diems,which thereby constituted an exception to the constitutional prohibition on double compensation.           Representation and Transportation Allowances (RATA) and travel allowances were found to be, by their nature, remunerative; hence, they were not deemed included in the prohibition, unless the LWUA had already granted the same benefits to its employees tasked to sit as the 6th members of the boards of directors.  Found to be non-remunerative in character and thus constitutionally infirm was the grant to the directors of Extraordinary Miscellaneous Expenses (EME) and rice allowances, as well as medical and dental benefits.  The grant of a uniform allowance might have been allowed if the directors ordinarily wore uniforms in the discharge of their functions.            Lastly, the grant of Christmas bonuses, cash gifts and productivity incentive bonuses were described by the CA as essentially gratuitous in nature.  It ruled that the grant of Christmas bonuses and cash gifts to the appointed 6thmembers of the boards of directors must be disallowed, since they were already receiving those benefits as regular employees of the LWUA.  On the other hand, the grant of productivity incentive bonuses was allowed, in view of the directors’ role in helping the financially strapped water district regain its losses.           Hence, this Petition.[8]

 Issues

           Petitioners raise the following issues for our consideration:

 I. 

“Whether or not Public Respondent Civil Service Commission has plenary jurisdiction to motu proprio construe P.D. 198, as amended. 

II. 

“Whether or not Sec. 13 of P.D. 198, as amended, prohibits LWUA-designated representatives to the Boards of WDs to receive certain allowances and benefits on top of regular per diems. 

III. 

“Whether or not the designated representatives of LWUA to the Boards of WDs are liable to refund certain allowances and bonuses which are found in violation of Sec. 13 of PD 198, as amended.”[9]

 The Court’s Ruling

           The Petition is partly meritorious. 

First Issue:Jurisdiction of the CSC

            Petitioners argue that the CSC had no plenary jurisdiction to construe any provision of PD 198, as amended, on matters pertaining to compensation and other benefits of water district directors.           Relying on Marilao Water Consumers Association v. Intermediate Appellate Court,[10] petitioners contend that it is the LWUA, not the CSC, that has the power to issue rules and regulations for the effective implementation of the law under which water districts operate and function.  We disagree.  In the cited case, this Court held that proceedings for the dissolution of water districts should be lodged with the regular courts.  In reaching this conclusion, it thus discussed the functions and powers of the LWUA as follows:

           “The LWUA does not appear to have any adjudicatory functions. It is, as already pointed out, ‘primarily a specialized lending institution for the promotion, development and financing of local water utilities,’ with power to prescribe minimum standards and regulations regarding maintenance, operation, personnel training, accounting and fiscal practices for local water utilities, to furnish technical assistance and personnel training programs therefor; monitor and evaluate local water standards; and effect systems integration, joint investment and operations, district annexation and deannexation whenever economically warranted. The LWUA has quasi-judicial power only as regards rates or charges fixed by water districts, which it may review to establish compliance with the provisions of PD 198 x x x.”[11]

            Clearly, that case is not in point and will not convince this Court to sustain the claim of petitioners.  They allege that the CSC usurped the functions of the LWUA in exercising, motu proprio, plenary jurisdiction to construe Section 13 of PD 198.  For the Court to sustain them would be to allow the board of an administrative agency, by merely issuing a resolution, to derogate the broad and extensive powers granted by the Constitution to a constitutional commission like the CSC.[12]

           Parenthetically, the task of safeguarding the proper use of government funds rests primarily with the Commission on Audit (COA).  In De Jesus v. Commission on Audit,[13] this Court ruled that it was the COA that had the power to determine the legality and regularity of the grant of allowances and benefits to LWUA-designated members of the boards of water districts.           Mandated by the Constitution[14] to audit all government agencies, including government-owned and -controlled corporations with original charters, the COA is vested with “the authority to determine whether government entities comply with laws and regulations in disbursing government funds, and to disallow illegal or irregular disbursements of government funds.”[15]

           In Civil Service Commission v. Pobre,[16] however, the Court recognized an instance in which the COA had concurrent jurisdiction with the CSC.  The Court ruled as follows:

           “The COA, the CSC and the Commission on Elections are equally pre-eminent in their respective spheres. Neither one may claim dominance over the others. In case of conflicting rulings, it is the Judiciary which interprets the meaning of the law and ascertains which view shall prevail.”[17]

           The present case involves the acts of LWUA officials who are concurrently designated as members of the boards of directors of water districts.  This Court has consistently ruled that water districts are government-owned and -controlled corporations with original charters, since they have been created pursuant to PD 198.  Hence, they are under the jurisdiction of the CSC.[18]

           Article IX-B of the 1987 Constitution provides as follows:

           “SEC. 2. (1)  The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.           “SEC. 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs.”

             Section 3 is deemed to include the power to “promulgate and enforce policies on personnel actions.”[19]           It must be pointed out that the present controversy originated from an administrative case filed with the CSC for violations of the Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713).  Necessarily, it was incumbent on the CSC to construe, in relation to that case pending before it, the provisions of PD 198.  Settled is the rule that when a law confers jurisdiction, all the incidental powers necessary for its effective[20] exercise are included in the conferment.

  

Second Issue:Allowances and Benefits

Other Than   Per Diems   Prohibited    

          The compensation of directors of water districts is governed by Section 13 of PD 198, as amended, which reads:           “Sec. 13. Compensation. - Each director shall receive a per diem, to be determined by the board, for each meeting of the board actually attended by him, but no director shall receive per diems in any

given month in excess of the equivalent of the total per diems of four meetings in any given month. No director shall receive other compensation for services to the district.           “Any per diem in excess of P50 shall be subject to approval of the Administration.” (Emphasis supplied)

          Contrary to the interpretation of the CSC, petitioners argue that the term “compensation” as used in Section 13 of PD 198 does not include RATA, EME, bonuses and other benefits.           Whether the per diem is the only compensation allowed for directors of water districts is a question that has already been settled in Baybay Water District v. Commission on Audit,[21] which we quote in part, as follows:

           “Under §13 of this Decree, per diem is precisely intended to be the compensation of members of [the] board of directors of water districts. Indeed, words and phrases in a statute must be given their natural, ordinary, and commonly-accepted meaning, due regard being given to the context in which the words and phrases are used. By specifying the compensation which a director is entitled to receive and by limiting the amount he/she is allowed to receive in a month, and, in the same paragraph, providing ‘No director shall receive other compensation’ than the amount provided for per diems, the law quite clearly indicates that directors of water districts are authorized to receive only the per diem authorized by law and no other compensation or allowance in whatever form.”[22]

   

Third Issue:Refund of Allowances and Benefits

            Although neither the CSC nor the CA ordered them to refund the monetary allowances and benefits found to be in violation of Section 13 of PD 198, petitioners assert that they should not be required to do so, because they had received those benefits in good faith.  This issue has been settled in several other cases[23] beginning with De Jesus v. Commission on Audit,[24] in which this Court pronounced thus:

           “x x x. Petitioners here received the additional allowances and bonuses in good faith under the honest belief that LWUA Board Resolution No. 313 authorized such payment. At the time petitioners received the additional allowances and bonuses, the Court had not yet decided Baybay Water District. Petitioners had no knowledge that such payment was without legal basis. Thus, being in good faith, petitioners need not refund the allowances and bonuses they received but disallowed by the COA.”[25]

             Considering that the instant controversy had also arisen prior to the promulgation of Baybay Water District v. Commission on Audit,[26] the present petitioners need not refund the allowances and bonuses they have already received in good faith.           WHEREFORE, the Petition is PARTLY GRANTED.  The July 11, 1995 Resolution of the CSC isREINSTATED, with the MODIFICATION that petitioners need not refund the Representation and Transportation Allowances (RATA), Travel Allowances, Extraordinary and Miscellaneous Expenses (EME), Christmas bonuses and cash gifts, uniform allowances, rice allowances, medical and dental benefits, and productivity incentive bonuses already received by them in good faith as members of the boards of directors of water districts.  No pronouncements as to costs.

 SO ORDERED.

EN BANC

[G.R. No. 125955.  June 19, 1997]WILMER GREGO, petitioner, vs. COMMISSION ON ELECTIONS and HUMBERTO BASCO, respondents.

D E C I S I O N

ROMERO, J.:

The instant special civil action for certiorari and prohibition impugns the resolution of the Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31, 1996, dismissing petitioner’s motion for reconsideration of an earlier resolution rendered by the COMELEC’s First Division on October 6, 1995, which also dismissed the petition for disqualification[1] filed by petitioner Wilmer Grego against private respondent Humberto Basco.

The essential and undisputed factual antecedents of the case are as follows:

On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than this Court upon a finding of serious misconduct in an administrative complaint lodged by a certain Nena Tordesillas.  The Court held:

“WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS MISCONDUCT IN OFFICE FOR THE SECOND TIME, HE IS HEREBY DISMISSED FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT BENEFITS AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.

x x x                                                                      x x x                                                                             x x x”[2]

Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila during the January 18, 1988, local elections.  He won and, accordingly, assumed office.

After his term, Basco sought re-election in the May 11, 1992 synchronized national elections.  Again, he succeeded in his bid and he was elected as one of the six (6) City Councilors.  However, his victory this time did not remain unchallenged.  In the midst of his successful re-election, he found himself besieged by lawsuits of his opponents in the polls who wanted to dislodge him from his position.

One such case was a petition for quo warranto[3] filed before the COMELEC by Cenon Ronquillo, another candidate for councilor in the same district, who alleged Basco’s ineligibility to be elected councilor on the basis of the Tordesillas ruling.  At about the same time, two more cases were also commenced by Honorio Lopez II in the Office of the Ombudsman and in the Department of Interior and Local Government. [4] All these challenges were, however, dismissed, thus, paving the way for Basco’s continued stay in office.

Despite the odds previously encountered, Basco remained undaunted and ran again for councilor in the May 8, 1995, local elections seeking a third and final term.    Once again, he beat the odds by emerging sixth in a battle for six councilor seats.  As in the past, however, his right to office was again contested.  On May 13, 1995, petitioner Grego, claiming to be a registered voter of Precinct No. 966, District II, City of Manila, filed with the COMELEC a petition for disqualification, praying for Basco’s disqualification, for the suspension of his proclamation, and for the declaration of Romualdo S. Maranan as the sixth duly elected Councilor of Manila’s Second District.

On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly furnished with a copy of the petition.  The other members of the BOC learned about this petition only two days later.

The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties to submit simultaneously their respective memoranda.

Before the parties could comply with this directive, however, the Manila City BOC proclaimed Basco on May 17, 1995, as a duly elected councilor for the Second District of Manila, placing sixth among several candidates who vied for the seats.[5] Basco immediately took his oath of office before the Honorable Ma. Ruby Bithao-Camarista, Presiding Judge, Metropolitan Trial Court, Branch I, Manila.

In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to annul what he considered to be an illegal and hasty proclamation made on May 17, 1995, by the Manila City BOC.  He reiterated Basco’s disqualification and prayed anew that candidate Romualdo S. Maranan be declared the winner.  As expected, Basco countered said motion by filing his Urgent Opposition to: Urgent Motion (with Reservation to Submit Answer and/or Motion to Dismiss Against Instant Petition for Disqualification with Temporary Restraining Order).

On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the reservation he made earlier, summarizing his contentions and praying as follows:

“Respondent thus now submits that the petitioner is not entitled to relief for the following reasons:

1.       The respondent cannot be disqualified on the ground of Section 40 paragraph b of the Local Government Code because the Tordesillas decision is barred by laches, prescription, res judicata, lis pendens, bar by prior judgment, law of the case and stare decisis;

2.       Section 4[0] par. B of the Local Government Code may not be validly applied to persons who were dismissed prior to its effectivity.  To do so would make it ex post facto, bill of attainder, and retroactive legislation which impairs vested rights.  It is also a class legislation and unconstitutional on the account.

3.       Respondent had already been proclaimed.  And the petition being a preproclamation contest under the Marquez v. Comelec Ruling, supra, it should be dismissed by virtue of said pronouncement.

4.       Respondent’s three-time election as candidate for councilor constitutes implied pardon by the people of previous misconduct (Aguinaldo v. Comelec G.R. 105128; Rice v. State 161 SCRA 401; Montgomery v. Newell 40 SW 2d 4181; People v. Bashaw 130 P. 2nd 237, etc.).

5.       As petition to nullify certificate of candidacy, the instant case has prescribed; it was premature as an election protest and it was not brought by a proper party in interest as such protest.:

PRAYER

WHEREFORE it is respectfully prayed that the instant case be dismissed on instant motion to dismiss the prayer for restraining order denied (sic).  If this Honorable Office is not minded to dismiss, it is respectfully prayed that instant motion be considered as respondent’s answer.  All other reliefs and remedies just and proper in the premises are likewise hereby prayed for.”

After the parties’ respective memoranda had been filed, the COMELEC’s First Division resolved to dismiss the petition for disqualification on October 6, 1995, ruling that “the administrative penalty imposed by the Supreme Court on respondent Basco on October 31, 1981 was wiped away and condoned by the electorate which elected him” and that on account of Basco’s proclamation on May 17, 1965, as the sixth duly elected councilor of the Second District of Manila, “the petition would no longer be viable.”[6]

Petitioner’s motion for reconsideration of said resolution was later denied by the COMELEC en banc in its assailed resolution promulgated on July 31, 1996.[7] Hence, this petition.

Petitioner argues that Basco should be disqualified from running for any elective position since he had been “removed from office as a result of an administrative case” pursuant to Section 40 (b) of Republic Act No. 7160, otherwise known as the Local Government Code (the Code), which took effect on January 1, 1992.[8]

Petitioner wants the Court to likewise resolve the following issues, namely:

1.  Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively to those removed from office before it took effect on January 1, 1992;

2.  Whether or not private respondent’s election in 1988, 1992 and in 1995 as City Councilor of Manila wiped away and condoned the administrative penalty against him;

3.  Whether or not private respondent’s proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, is void ab initio; and

4.  Whether or not Romualdo S. Maranan, who placed seventh among the candidates for City Councilor of Manila, may be declared a winner pursuant to Section 6 of Republic Act No. 6646.

While we do not necessarily agree with the conclusions and reasons of the COMELEC in the assailed resolution, nonetheless, we find no grave abuse of discretion on its part in dismissing the petition for disqualification.  The instant petition must, therefore, fail.

We shall discuss the issues raised by petitioner in seriatim.

I.          Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed from office before it took effect on January 1, 1992?

Section 40 (b) of the Local Government Code under which petitioner anchors Basco’s alleged disqualification to run as City Councilor states:

“SEC. 40.  Disqualifications. - The following persons are disqualified from running for any elective local position:

x x x                                                                      x x x                                                                             x x x

(b)     Those removed from office as a result of an administrative case;

x x x                                                                      x x x                                                                             x x x.”

In this regard, petitioner submits that although the Code took effect only on January 1, 1992, Section 40 (b) must nonetheless be given retroactive effect and applied to Basco’s dismissal from office which took place in 1981.  It is stressed that the provision of the law as worded does not mention or even qualify the date of removal from office of the candidate in order for disqualification thereunder to attach.  Hence, petitioner impresses upon the Court that as long as a candidate was once removed from office due to an administrative case, regardless of whether it took place during or prior to the effectivity of the Code, the disqualification applies.[9] To him, this interpretation is made more evident by the manner in which the provisions of Section 40 are couched.  Since the past tense is used in enumerating the grounds for disqualification, petitioner strongly contends that the provision must have also referred to removal from office occurring prior to the effectivity of the Code.[10]

We do not, however, subscribe to petitioner’s view.  Our refusal to give retroactive application to the provision of Section 40 (b) is already a settled issue and there exist no compelling reasons for us to depart therefrom.  Thus, in Aguinaldo vs. COMELEC,[11] reiterated in the more recent cases of Reyes vs. COMELEC [12]  and Salalima vs. Guingona, Jr.,[13] we ruled, thus:

“The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act 7160) which provides:

‘Sec. 40.  The following persons are disqualified from running for any elective local positions:

x x x                                                                      x x x                                                                             x x x

(b)          Those removed from office as a result of an administrative case.

Republic Act 7160 took effect only on January 1, 1992.

The rule is:

x x x                                                                      x x x                                                                             x x x

‘x x x  Well-settled is the principle that while the Legislature has the power to pass retroactive laws which do not impair the obligation of contracts, or affect injuriously vested rights, it is equally true that statutes are not to be construed as intended to have a retroactive effect so as to affect pending proceedings, unless such intent is expressly declared or clearly and necessarily implied from the language of the enactment. x x x’ (Jones vs. Summers, 105 Cal. App. 51, 286 Pac. 1093; U.S. vs. Whyel 28 (2d) 30; Espiritu v. Cipriano, 55 SCRA 533 [1974], cited in Nilo vs. Court of Appeals, 128 SCRA 519 [1974].  See also Puzon v. Abellera, 169 SCRA 789 [1989]; Al-Amanah Islamic Investment Bank of the Philippines v. Civil Service Commission, et al., G.R. No. 100599, April 8, 1992).

There is no provision in the statute which would clearly indicate that the same operates retroactively.

It, therefore, follows that [Section] 40 (b) of the Local Government Code is not applicable to the present case.” (Underscoring supplied).

That the provision of the Code in question does not qualify the date of a candidate’s removal from office and that it is couched in the past tense should not deter us from the applying the law prospectively.  The basic tenet in legal hermeneutics that laws operate only prospectively and not retroactively provides the qualification sought by petitioner.  A statute, despite the generality in its language, must not be so construed as to overreach acts, events or matters which transpired before its passage.  Lex prospicit, non respicit.  The law looks forward, not backward.[14]

II.          Did private respondent’s election to office as City Councilor of Manila in the 1988, 1992 and 1995 elections wipe away and condone the administrative penalty against him, thus restoring his eligibility for public office?

Petitioner maintains the negative.  He quotes the earlier ruling of the Court in Frivaldo v. COMELEC [15]  to the effect that a candidate’s disqualification cannot be erased by the electorate alone through the instrumentality of the ballot.  Thus:

“x x x (T)he qualifications prescribed for elective office cannot be erased by the electorate alone.  The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed,  as in this case,  that  the  candidate  was  qualified. x x x”

At first glance, there seems to be a prima facie semblance of merit to petitioner’s argument.  However, the issue of whether or not Basco’s triple election to office cured his alleged ineligibility is actually beside the point because the argument proceeds on the assumption that he was in the first place disqualified when he ran in the three previous elections.  This assumption, of course, is untenable considering that Basco was NOT subject to any disqualification at all under Section 40 (b) of the Local Government Code which, as we said earlier, applies only to those removed from office on or after January 1, 1992.  In view of the irrelevance of the issue posed by petitioner, there is no more reason for the Court to still dwell on the matter at length.

Anent Basco’s alleged circumvention of the prohibition in Tordesillas against reinstatement to any position in the national or local government, including its agencies and instrumentalities, as well as government-owned or controlled corporations, we are of the view that petitioner’s contention is baseless.  Neither does petitioner’s argument that the term “any position” is broad enough to cover without distinction both appointive and local positions merit any consideration.

Contrary to petitioner’s assertion, the Tordesillas decision did not bar Basco from running for any elective position.  As can be gleaned from the decretal portion of the said decision, the Court couched the prohibition in this wise:

“x x x  AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.”

In this regard, particular attention is directed to the use of the term “reinstatement.”  Under the former Civil Service Decree,[16] the law applicable at the time Basco, a public officer, was administratively dismissed from office, the term “reinstatement” had a technical meaning, referring only to an appointive position.  Thus:

“ARTICLE VIII. PERSONNEL POLICIES AND STANDARDS.

SEC. 24.  Personnel Actions. -

x x x                                                                      x x x                                                                             x x x

(d)     Reinstatement. - Any person who has been permanently APPOINTED to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified.

x x x                                                                      x x x                                                                             x x x.”

(Emphasis and underscoring supplied).

The Rules on Personnel Actions and Policies issued by the Civil Service Commission on November 10, 1975, [17] provides a clearer definition.  It reads:

“RULE VI.  OTHER PERSONNEL ACTIONS.

SEC. 7.  Reinstatement is the REAPPOINMENT of a person who was previously separated from the service through no delinquency or misconduct on his part from a position in the career service to which he was permanently appointed, to a position for which he is qualified.” (Emphasis and underscoring supplied).

In light of these definitions, there is, therefore, no basis for holding  that Basco is likewise barred from running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is reinstatement to an appointive position.

III.         Is private respondent’s proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, void ab initio?

To support its position, petitioner argues that Basco violated the provisions of Section 20, paragraph (i) of Republic Act No. 7166, Section 6 of Republic Act No. 6646, as well as our ruling in the cases of Duremdes v. COMELEC,[18] Benito v. COMELEC [19]  and Aguam v. COMELEC.[20]

We are not convinced.  The provisions and cases cited are all misplaced and quoted out of context.  For the sake of clarity, let us tackle each one by one.

Section 20, paragraph (i) of Rep. Act 7166 reads:

“SEC. 20.   Procedure in Disposition of Contested Election Returns.-

x x x                                                                      x x x                                                                             x x x

(i)      The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party.  Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.

x x x                                                                      x x x                                                                             x x x.”

The inapplicability of the abovementioned provision to the present case is very much patent on its face considering that the same refers only to a void proclamation in relation to contested returns and NOT to contested qualifications of a candidate.

Next, petitioner cites Section 6 of Rep. Act  6646 which states:

“SEC. 6.  Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.  If for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.” (Underscoring supplied).

This provision, however, does not support petitioner’s contention that the COMELEC, or more properly speaking, the Manila City BOC, should have suspended the proclamation.  The use of the word “may” indicates that the suspension of a proclamation is merely directory andpermissive in nature and operates to confer discretion.[21] What is merely made mandatory, according to the provision itself, is the continuation of the trial and hearing of the action, inquiry or protest.  Thus, in view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is so strong as to warrant suspension of proclamation must be left for its own determination and the Court cannot interfere therewith and substitute its own judgment unless such discretion  has been exercised whimsically and capriciously.[22] The COMELEC, as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall,[23] has more than enough expertise in its field that its findings or conclusions are generally respected and even given finality.[24] The COMELEC has not found any ground to suspend the proclamation and the records likewise fail to show any so as to warrant a different conclusion from this Court.  Hence, there is no ample justification to hold that the COMELEC gravely abused its discretion.

It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure[25] states that:

“SEC. 5.  Effect of petition if unresolved before completion of canvass. - x x x (H)is proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election.”

However, being merely an implementing rule, the same must not override, but instead remain consistent with and in harmony with the law it seeks to apply and implement.  Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law.[26] Thus, in Miners Association of the Philippines, Inc. v. Factoran, Jr.,[27] the Court ruled that:

“We reiterate the principle that the power of administrative officials to promulgate rules and regulations in the implementation of a statute is necessarily limited only to carrying into effect what is provided in the legislative enactment.  The principle was enunciated as early as 1908 in the case of United States v. Barrias.  The scope of the exercise of such rule-making power was clearly expressed in the case of United States v. Tupasi Molina, decided in 1914, thus:  ‘Of course, the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions.  By such regulations, of course, the law itself can not be extended.  So long, however, as the regulations relate solely to carrying into effect the provision of the law, they are valid.’

Recently, the case of People v. Maceren gave a brief delineation of the scope of said power of administrative officials:

Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions.  By such regulations, of course, the law itself cannot be extended (U.S. v. Tupasi Molina, supra).  An administrative agency cannot amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969, 29 SCRA 350).

The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted.  The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the  statute.  Rules that subvert the statute cannot be sanctioned (University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46.  As to invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v.  Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349).

x x x                                                                      x x x                                                                             x x x

x x x  The rule or regulations should be within the scope of the statutory authority granted by the legislature to the administrative agency (Davis, Administrative Law, p. 194, 197, cited in Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558).

In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulations cannot go beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091).”

Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of Procedure seeks to implement, employed the word “may,” it is, therefore, improper and highly irregular for the COMELEC to have used instead the word “shall” in its rules.

Moreover, there is no reason why the Manila City BOC should not have proclaimed Basco as the sixth winning City Councilor.  Absent any determination of irregularity in the election returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned to count the votes based on such returns and declare the result.  This has been the rule as early as in the case of Dizon v. Provincial Board of Canvassers of Laguna [28]  where we clarified the nature of the functions of the Board of Canvassers, viz.:

“The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting.  All other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings.”  (9 R.C.L., p. 1110)

To the same effect is the following quotation:

“x x x  Where there is no question as to the genuineness of the returns or that all the returns are before them, the powers and duties of canvassers  are limited to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown on the face of the returns before them, and then declaring or certifying the result so ascertained.  (20 C.J., 200-201)” [Underscoring supplied]

Finally,  the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant and inapplicable to the factual circumstances at bar and serve no other purpose than to muddle the real issue.  These three cases do not in any manner refer to void proclamations resulting from the mere pendency of a disqualification case.

In Duremdes, the proclamation was deemed void ab initio because the same was made contrary to the provisions of the Omnibus Election Code regarding the suspension of proclamation in cases of contested election returns.

In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of Canvassers’ violation of its ministerial duty to proclaim the candidate receiving the highest number of votes and pave the way to succession in office.  In said case, the candidate receiving the highest number of votes for the mayoralty position died but the Board of Canvassers, instead of proclaiming the deceased candidate winner, declared Benito, a mere second-placer, the mayor.

Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was based only on advanced copies of election returns which, under the law then prevailing, could not have been a proper and legal basis for proclamation.

With no precedent clearly in point, petitioner’s arguments must, therefore, be rejected.

IV.        May Romualdo S. Maranan, a seventh placer, be legally declared a winning candidate?

Obviously, he may not be declared a winner.  In the first place, Basco was a duly qualified candidate pursuant to our disquisition above. Furthermore, he clearly received the winning number of votes which put him in sixth place.  Thus, petitioner’s emphatic reference to Labo v. COMELEC,[29] where we laid down a possible exception to the rule that a second placer may be declared the winning candidate, finds no application in this case.  The exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate.  Both assumptions, however, are absent in this case.  Petitioner’s allegation that Basco was well-known to have been disqualified in the small community where he ran as a candidate is purely speculative and conjectural, unsupported as it is by any convincing facts of record to show notoriety of his alleged disqualification.[30]

In sum, we see the dismissal of the petition for disqualification as not having been attended by grave abuse of discretion.  There is then no more legal impediment for private respondent’s continuance in office as City Councilor for the Second District of Manila.

WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED for lack of merit.  The assailed resolution of respondent Commission on Elections (COMELEC) is SPA 95-212 dated July 31, 1996 is hereby AFFIRMED.  Costs against petitioner.

SO ORDERED.

Narvasa, CJ.,  Regalado, Davide, Jr.,  Melo, Puno, Vitug,  Mendoza,  Hermosisima, Jr., Panganiban, and Torres, Jr., J., concur.

Padilla, Bellosillo, Kapunan, and Francisco, JJ., On Leave.

G.R. No. L-58289 July 24, 1982

VALENTINO L. LEGASPI, petitioner, vs.THE HONORABLE MINISTER OF FINANCE and THE HONORABLE COMMISSIONER and/or THE BUREAU OF INTERNAL REVENUE; respondents.

 

BARREDO, J.:

Petition filed by the Honorable Valentino L. Legaspi, incumbent member of the interim Batasang Pambansa, praying that this Court declare Presidential Decree 1840 "granting tax amnesty and filing of statement of assets and liabilities and some other purposes" unconstitutional.

The petition contains the following allegations:

5. That said decree was issued by the President under supposed legislative powers granted him under Amendment No. 6 of the Constitution proclaimed in full force and effect as of October 27, 1976 pursuant to Proclamation No. 1595 and which is quoted as follows:

Whenever in the Judgment of the President, there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land.

6. That said decree was promulgated despite the fact that under the Constitution "(T)he legislative power shall be vested in a Batasang Pambansa" (Sec. 1, Article VIII) and the President may grant amnesty only with concurrence of the Batasang Pambansa (Sec. 11, Art. VII);

7. That Amendment No. 6 is not one of the powers granted the President by the Constitution as amended in the plebiscite of April 7, 1981; that while Section 16 of Art. VII of the Constitution provides:

All powers vested in the President of the Philippines under the 1935 Constitution and the laws of the land which are not herein provided for on conferred upon any official shall be deemed and are hereby vested in the President unless the Batasang Pambansa provides otherwise.

such re-confirmation of existing powers did not mean to include the President's legislative powers under Amendment No. 6: by "the laws of the land which are not herein provided for or conferred upon any official" only those laws that have been passed by the existing and/or prior legislature are intended;

8. That the Respondents are intending and in fact implementing the provisions of the questioned decree and the same tends to affect all taxpayers in the Philippines including herein Petitioner; that he is now in a quandary on whether to take advantage of the benefits of said decree since the same is of doubtful constitutionality leaving him no protection as guaranteed by the decree and thus subject him to prosecution for violation of which otherwise would have held him immune under said decree;

9. That as a member of the Batasang Pambansa he knows that the subject of the questioned decree has not been brought to the attention of the Batasang Pambansa requiring immediate attention, the fact being that the original tax amnesty decree which the questioned decree amended or modified has long been effective and implemented by the Respondents while the Batasang Pambansa was in session;

10. That Presidential Decree No. 1840 is patently null and void having been passed without the concurrence of the Batasang Pambansa and it is likewise of public interest and of the nation that the question of whether the President retained his legislative power after lifting Martial Law and after the Constitution was amended on April 7, 1981 be resolved;

11. That the questioned decree being the first dated after the lifting of Martial Law and the April 7 amendments brings to test the validity of the exercise of standby emergency powers invoked in Amendment No. 6. (Pp. 3-6, record.)

As the petitioner himself puts it in his memorandum, the issue is: Whether the 1973 Constitution as amended by Plebiscite-Referendum of 1976, retained the same amendments, more particularly Amendment No. 6, after it was again amended in the Plebiscite held on April 7, 1981?

On the issue thus formulated by petitioner, it is maintained that "Amendment No. 6 is rendered inoperable, deleted and/or repealed by the amendments of April 7, 1981". Opening his discussion of this proposition thus:

Amendment No. 6 as originally submitted to the people for ratification under Pres. Dec. No. 1033, and thereafter approved reads as follows:

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 reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land.

Whether the matter or that there was an exigency which required immediate action let it be conceded that in the judgment of the President such facts do exist. (Emphasis ours)

It is to be observed that the original text mentions President (Prime Minister). This is so because under No. 3 of the same amendment,

... 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 1935 Constitution and the powers vested in the President and the Prime Minister under this Constitution.

Parenthetically, the term "Incumbent President" employed in the transitory provisions could only refer to President Ferdinand E. Marcos (Aquino vs. Commission on Elections, 62 SCRA 275).

After the April 7 amendments there exists no longer "a President (Prime Minister)" but "A President"and "A Prime Minister." They are now two different offices which cannot be held by a single person — not a transitory one but a regular one provided for and governed by the main provisions of the newly amended Constitution. Subsequent events accept the reality that we are no longer governed by the transitory provisions of the Constitution. (Pp. 27-28, Record.)

petitioner rationalizes his affirmative position thereon this wise:

Is Amendment No. 6 of the 1973 Constitution as approved in 1976 reproduced or unaffected by the April 7, 1981 amendment? Or, is it considered repealed by Omission?

The Constitutional provisions of the Presidency do not restate the provisions of Amendment No. 6 which grants the President (Prime Minister) limited powers to legislate. This is tantamount to a withdrawal or deletion of such grant.

There is no way by which the incumbent President be referred to anymore as the "incumbent President" in the amendment of 1976. While it is true that Amendment No. 6 fails to distinguish between "incumbent" and "regular" all provisions with reference to the powers of the Presidency is deemed foreclosed by Article VII of the newly amended Constitution. Article VII enumerates presidential powers. To construe that the 1976 Amendments are still applicable, other than that referring to the Interim Batasang Pambansa would be an incompatibility to the application of the present constitutional provisions.

Generally taken, the 1976 amendments are amendments to the transitory provisions of the Constitution. Insofar as the office of the President or the Prime Minister is concerned they have ceased to be governed by the transitory provisions but under the newly amended Constitution.

Batas Pambansa Blg. 125 called for the election of a President under the newly amended Constitution. President Marcos ran as candidate and was proclaimed the duly elected President of the Philippines by resolution no. 2 of the Batasang Pambansa dated June 21, 1981. He took his oath of office as the duly elected President. The Prime Minister, the Members of the Cabinet and the Executive Committee took their oaths after having been appointed and are now exercising their functions pursuant to the new provisions. We even consider ourselves the Fourth Republic because of a new system of government. What particular part of the newly amended Constitution would Amendment No. 6 fit in?

President Ferdinand E. Marcos ceased to be the incumbent resident referred to in the transitory provisions or in the 1976 amendments. The Solicitor General argued that Amendment No. 6 provided for the contingency that the office would be separated consisting of a ceremonial President and a Prime Minister who will be he executive. Yet, without express constitutional grant the President now assumes a power intended to be that of the Prime Minister. The intent of the 1981 amendments could not be interpreted any other way except that after the amendment it would no longer be proper to exercise those reposed upon the Prime Minister. Powers previously reposed upon the Prime Minister were expressly removed from him and given to the President. Amendment No. 6 is not one of those.

The proposed amendments under Batasan . No. 104 became Question No. 1 in the ballot of April 7, 1981 plebiscite to which the voter was asked (B.P. Blg. 122):

Do you vote for the approval of an amendment to the Constitution and to Amendment No. 2, as proposed by the Batasang Pambansa in Resolution No. 2, which, in substance, calls for the establishment of a modified parliamentary system, amending for this purpose Articles VII, VIII and IX of the Constitution, with the following principal features: ...

Nowhere in feature (1) was it submitted that the President would enjoy conditional or qualified legislative powers as modified parliamentary system.

The original intent to set out the original act or section as amended is most commonly indicated by a statement in the amendatory act that the original law is amended to "read as follows." The new statute is a substitute for the original act or section. Only those provisions of the original act or section repeated in the amendment are retained (Paras vs. Land Registration Commission, July 26, 1960, L-16011).

That "The Legislative power shall be vested in the Batasang Pambansa" is an old provision which has been retained. This in essence was Question No. 1 in the April 7 Plebiscite as to who exercise legislative powers and who are to execute. Nowhere in the approved Amendment can it be hinted that the hybrid-type of government also includes a one-man legislature. The intent to repose legislation only upon the Batasan is very apparent. The adoption of the new Constitution repeals and supersedes all the provisions of the older one not continued in force by the new instrument (16 C.J.S. 88). (Pp. 30-33, Record.)

After mature study and deliberation and considering the peculiar circumstances that dictated the formulation of Amendment No. 6, the Court's conclusion is, that Assemblyman-Petitioners posture lacks, to say the least, sufficient merit.

Constitutional law is not simply the literal application of the words of the Charter. The ancient and familiar rule of constitutional construction that has consistently maintained its intrinsic and transcendental worth is that the meaning and understanding conveyed by the language, albeit plain, of any of its provisions do not only portray the influence of current events and developments but likewise the inescapable imperative considerations rooted in the historical background and environment at the time of its adoption and thereby caused their being written as part and parcel thereof. As long as this Court adheres closest to this perspective in viewing any attack against any part of the Constitution, to the end of determining what it actually encompasses and how it should be understood, no one can say We have misguided Ourselves. None can reasonably contend We are treading the wrong way.

True enough Article VIII, Sec. 1 of the Philippine Constitution as amended in 1981 explicitly ordains that "(T)he legislative power shall be vested in a Batasang Pambansa". Section 2, however, readily reveals that the Batasang Pambansa contemplated in that Section 1 is the regular assembly (formerly referred to as National Assembly, now as Batasang Pambansa — evidently to indigenize the nomenclature, which, incidentally should have been done also with the Pangulo

and Pangunang Ministro), to be elected in May 1984, per Sec. 5(1) of the same Article. Thus, to begin with, in the instant case, We must keep in mind that at least for the present and until 1984, what can be properly discussed here are only the legislative powers of the interim Batasang Pambansa as such.

Without intending any reflection on any of those responsible for the Idea, it may be that it is for non-essential reasons that the current legislative assembly is being referred to generally simply as the Batasang Pambansa. For in legal truth and in actual fact, and as expressly admitted by petitioner, it is inherently no more no less than the same interim. Batasang Pambansa created by Amendment No. 2 by virtue of the Referendum-Plebiscite of October 16-17, 1976. And, in this connection, it may be observed that indubitably, and as a necessary and logical consequence, the amendment of Amendment No. 2 in 1981 carried with it the corresponding appropriate adjustments literal and otherwise of Amendment Nos. 3 and 4, although these latter two were not specifically mentioned in the proposal pursuant to BP-CA Resolution No. 4 of the Batasan, acting as a constituent body nor in the Plebiscite Referendum Act itself, much less in the ballots presented to and used by the voters. This is because it cannot be denied that Amendments 3 and 4 are by their very nature inseparable parts of amendment No. 2.

But examining closely how the 1981 amendments altered Amendment No. 2, it will be readily seen that the only change consisted of the non-inclusion of the "incumbent President" as member of the assembly in pursuance of the fundamental objective to separate the Presidency from the regular legislative body and thereby establish in our country a modified form of parliamentary government more appropriate for and suitable to the peculiar conditions of our political development and the idiosyncrasies of our people, and at the same time introduce into it features that would strengthen its structure so as to enable the government to cope with emergencies or abnormal situations, not only like those that presently exist but even those that might arise in the future. Thus, it is characterized with a presidency more powerful than the idea of a strong President desired by President Quezon and actually embodied in the 1935 Constitution.

It is, therefore, evident that the reference to Amendment No. 2 in the amendments of 1981 was not intended at all to convert or upgrade the present existing assembly into the regular Batasang Pambansa. To repeat, what we have now is still the interim Batasang Pambansa created in 1976. Importantly, it must be said that had the present Batasan, acting as a constituent body, ever thought of making itself the regular National Assembly, the very odious spectacle that the people rejected when in the referendum of January 10-15, 1973 they repulsed and repudiated the interim National Assembly provided for in Sections 1 and 2 of Article XVII (Transitory Provisions) of the 1973 Constitution whereby the members of the old Congress of the Philippines made themselves automatically members of the interim assembly would have resuscitated, and we can readily imagine how the reaction of our people would have been exactly the same as in 1973 and for sure the 1981 proposed constitutional amendment affecting the Batasang would again have been denied sanction by our people.

Having arrived at the ineludible that the present Batasan is still interim, it also ineluctably follows that its legislative authority cannot be more exclusive now after 1981 amendments than when it was originally created in 1976. Thus even as the interim Batasan which came into being "in lieu of the Interim National Assembly" by virtue of Amendment No. 2 consequently acquired "the same powers and its Members — the same functions, responsibilities, rights and privileges, and disqualifications as the regular National Assembly and the members thereof", there can be no question that coeval with the creation of the interim Batasan, Amendment No. 6 came into force and effect. And Amendment No. 6 mandates in unequivocal and unambiguous terms the grant of concurrent legislative authority to an official (the President [Prime Minister]) who is not in the Batasan itself.

In brief, the inexorable logic of the events that brought forth the present Batasan leads to no other conclusion than that the legislative authority vested in it by Amendment No. 2, read together with Section 1, Article XVII and Section 1, of Article VIII of the 1973 Constitution, is subject to the external concurrent legislative prerogative that Amendment No. 6 vests on the "President (Prime Minister)."

Actually, the insistence of petitioner that Amendment No. 6 has been repealed by the 1981 amendments springs from another point of view. It is fundamentally based on analysis and ratiocination related to the language and tenor thereof. Petitioner maintains that said amendments vested extraordinary legislative powers on "the President (Prime Minister)" and on nobody else, and since there is no one who is President (Prime Minister) under our present governmental set-up pursuant to 1981 amendments, no one in the existing government can exercise said powers.

The persuasive force of such theory is more apparent than real. As We have said earlier, the Constitution is not merely a literal document to be always read according to the plain and ordinary signification of its words. Beneath and beyond the literal terms of the Charter, like a mine of incalculably immense treasures, are elements and factors radiating from political and economic developments of the situation prevailing at the time of the inclusion of any particular provision thereof or amendment thereto. It is only from the light of the implications of such elements and factors that the real essence and

significance of the words of the constitutional provision under scrutiny can be properly and adequately seen and comprehended.

With reference to Amendment No. 6, it is of decisive importance that anyone who would try to decipher its true import should be acquainted with its ration d'tre, i.e., the whys and the wherefores thereof. Contrary to the imputations of petitioner, this amendment is not rooted in the authoritarian, much less dictatorial tendencies or inclinations of anyone. Any tinge or tint of authoritarianism in it is not there for the sake of the Ideology of dictatorship or authoritarian itself. Such hue of a one-man authoritarianism it somehow connotes is there only because it is so dictated by paramount considerations that are needed in order to safeguard the very existence and integrity of the nation and all that it stands for. Perhaps the truism—almost a dogma—well recognized by constitutionalists and political scientists of all persuasions as a convenient pragmatic rule for survival of nations, namely, that in an emergency, the best form of government is a dictatorship, might have been in the mind of those who formulated it, but it is quite obvious, as will be explained anon, that other fundamental factors must have been taken into account in order precisely to minimize the rigors and generally feared oppressiveness of a dictatorship in an unrestricted martial regime, its being dubbed as martial law "Philippine style" notwithstanding.

At this juncture, it must be emphatically made clear that explicitly the power that Amendment No. 6 vests upon the "President (Prime Minister)" are to be exercised only on two specified occasions, namely, (1) "when in (his judgment) a grave emergency exists or there is a threat or imminence thereof" and (2) "whenever the interim Batasang Pambansa or the regular National Assembly (now regular Batasang Pambansa) fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action." The power is to "issue necessary decrees, orders, or letters of instruction which shall form part of the law of the land." As the tenor of the amendment readily imparts, such power may be exercised even when the Batasan is in session. Obviously, therefore, it is a power that is in the nature of the other Powers which the Constitution directly confers upon the President or allows to be delegated to him by the Batasan in times of crises and emergencies.

Indeed, it is but fitting and proper that in framing the fundamental law of the land which sets up a form of government and defines and delimits the powers thereof and its officers, reserving as they must plenary sovereignty to themselves, the people should prudently provide what powers may and should be exercised by the government and/or its officials in times of crises and emergencies that could jeopardize the very life and/or territorial integrity of the country. Even as individual rights and liberties are valued and enshrined as inviolable, the people, as they write their Charter thru a convention or other legitimate means, cannot ignore that in the event of war, insurrection, rebellion or invasion, including any other critical situation, any one of which cannot but affect the regular course of normal constitutional processes and institutions as well as the prerogatives and freedoms of individual citizens of and inhabitants within the country, appropriate protective, defensive and rehabilitative measures must be provided therein and may be made to function or operate.

Accordingly, both in the 1935 Constitution of the Philippines and in that of 1973, the following provisions were precisely intended to operate during such perilous situations:

1. In times of war or other national emergency, the Batasang Pambansa may by law authorize the President for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Batasang Pambansa, such powers shall cease upon its next adjournment. The 1935 version of this provision differs from it in that what was granted to the President was not the broad authority "to exercise such powers necessary and proper" but only to issue rules and regulations purported to accomplish the same objective.

2. Section 10(2) of Article VII of the 1935 Constitution provided thus:

... (2) 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 the martial law...

Under Section 12 of Article IX of the 1973 Constitution, exactly the same powers were conferred on the Prime Minister.

However, what is now Section 9 of Article VIII under the 1981 amendments transferred all said powers to the President.

As can be seen, as authorized by the Commander-in-Chief clause of all our Constitutions, there have been as there still are three other measures that may be resorted to during an emergency, namely:

(1) Call out such armed forces to prevent or suppress lawless violence, invasion, insurrection or rebellion or imminent danger thereof, when public safety requires it;

(2) Suspend the privilege of the writ of habeas corpus, and

(3) Place the Philippines or any part thereof under martial law.

It appears, therefore, that within the four corners of the Constitution itself, whether that of 1935 or that of 1973, there were four constitutionally designed ways of coping with abnormal situations in the country, namely: (1) the so-called emergency powers delegated by the assembly to the President; (2) the calling of the armed forces; (3) the suspension of the privilege of the writ of habeas corpus and (4) the placing of the country or any part thereof under martial law. Understandably, it is to be supposed that these measures are to be resorted to one after the other according to the degree of gravity of the situation.

A backward glance at our past experiences since the implantation of American sovereignty in our country at the turn of the century should remind us that at one time or another all of these four measures have been resorted to, albeit martial law proclamations in the long past were limited in area and duration because of the localized nature of the disturbances they were meant to remedy.

Bearing all the foregoing considerations in mind, the question that naturally arises at this juncture is what need is there for the power contemplated in Amendment No. 6? Why does the country have to have a one-man legislating authority concurrent with the Batasang Pambansa? Are the above-discussed safeguards not enough?

At this point, it must be noted that Amendment No. 6 does not refer only to the interim Batasang Pambansa but also to the regular "National Assembly" (now Batasang Pambansa), a consideration which lends force to the conclusion that the 1981 amendments could not have been intended nor understood to do away with it. What, indeed, is the fundamental ration d'tre of Amendment No. 6?

It is to be recalled that the said amendment was formulated in October 1976, more than fully four years after the whole Philippines was first placed under martial law pursuant to Proclamation 1081 dated September 21, 1972. True, without loss of time, President Marcos made it clear that there was no military take-over of the government, and that much less was there being established a revolutionary government, even as he declared that said martial law was of a double-barrelled typed, unfamiliar to traditional constitutionalists and political scientists — for two basic and transcendental objectives were intended by it: (1) the quelling of nationwide subversive activities characteristic not only of a rebellion but of a state of war fanned by a foreign power of a different Ideology from ours, and not excluding the stopping effectively of a brewing, if not a strong separatist movement in Mindanao, and (2) the establishment of a New Society by the institution of disciplinary measures designed to eradicate the deep-rooted causes of the rebellion and elevate the standards of living education and culture of our people, and most of an the social amelioration of the poor and underprivileged in the farms and in the barrios, to the end that hopefully insurgency may not rear its head in this country again.

The immediate reaction of some sectors of the nation was of astonishment and dismay, for even if everyone knew that the gravity of the disorder, lawlessness, social injustice, youth and student activism and other disturbing movements had reached a point of peril, they felt that martial law over the whole country was not yet warranted. Worse, political motivations were ascribed to be behind the proclamation, what with the then constitutionally unextendible term of President Marcos about to expire, and this suspicion became more credible when opposition leaders and outspoken anti-administration media people who did not hesitate to resort even to libel were immediately placed under indefinite detention in military camps and other unusual restrictions were imposed on travel, communication, freedom of speech and of the press, etc. In a word, the martial law regime was anathema to no small portion of the populace. Criticisms or objections thereto were, of course, mostly covert, but there were even instances of open resistance.

Truth to tell, martial law is generally unwelcome anywhere in the world. And when it is prolonged without anyone knowing when it would be lifted, the feeling of discontent grows and spreads. Indeed, it is difficult to describe fully in an opinion like this all that many consider obnoxious in martial law. Suffice it to say that the New Society that came out of it did have its laudatory features appreciated by large segments of the people, but with many cases of abuses of the military marring such receptive attitude, the clamor for the early lifting of martial law became more and more audible.

We can definitely say that no one more than President Marcos was aware of those feelings and sentiments and, in fact, even of the undercurrents of resistance. And as We visualize the situation he found himself in, he was faced with no less than a dilemma. He was convinced of the advantages, not personally to him, but to general welfare of martial law, but at the same time he was also conscious that martial law, in any form — call it Philippine style, smiling, benign or with any

other euphemistic adjective — was growing to be more and more distasteful. Even the New Society it was supposed to bring about was slowly losing its splendor. Backsliding was creeping in some ways, discipline was loosening. But over and above all such adverse developments, the perils to national security and public order still remained, if in a slightly lesser degree.

It was in the light of the above circumstances and as a means of solving the dilemma aforementioned that the concept embodied in Amendment No. 6 was born. In brief, the central Idea that emerged was that martial law may be earlier lifted, but to safeguard our country and people against any abrupt dangerous situation which would warrant the exercise of some authoritarian powers, the latter must be constitutionally allowed, thereby to obviate the need to proclaim martial law and its concomitants, principally the assertion by the military of prerogatives that made them appear superior to the civilian authorities below the President. In other words, the problem was what may be needed for national survival or the restoration of normalcy in the face of a crisis or an emergency should be reconciled with the popular mentality and attitude of the people against martial law.

We have said earlier that the Constitution has four built-in measures to cope with crises and emergencies. To reiterate, they are: (a) emergency powers expressly delegated by the Batasan; (b) call of the armed forces, who otherwise are supposed to be in the barracks; (c) suspension of the privilege of the writ of habeas corpus; and (d) martial law. Of these four, the people dislike martial law most and would, if possible, do away with it in the Constitution. And the President who first conceived of what is now Amendment No. 6 knew this. Thus, Our understanding of the development of events and attitudes that led to the adoption of Amendment No. 6 is that in addition to the four measures authorized in the body of the charter, this amendment is supposed to be a fifth one purportedly designed to make it practically unnecessary to proclaim martial law, except in instances of actual surface warfare or rebellious activities or very sophisticated subversive actions that cannot be adequately met without martial law itself. Very evidently, the purpose of Amendment No. 6 is that the Philippines be henceforth spared of martial law unless manifest extreme situations should ever demand it.

To recapitulate, the amendments of October 1976 were deliberately designed against martial law. The creation thereby of the interim Batasang Pambansa in lieu of the interim National Assembly which never came into being because of vehement and justified popular repudiation thereof was definitely an indispensable step towards the lifting of martial law. Everyone can understand that martial law could not be lifted without a legislative body to make the laws. The legislative authority could not be left in the hands of the President (Prime Minister). It would have been anachronistic to lift martial law and still leave the law-making authority with the President (Prime Minister) alone.

Relatedly but more importantly, the vesting of the legislative authority to the interim Batasang Pambansa, without more or exclusively, would have maintained the safeguards of national security only to the four traditional constitutional measures repeatedly discussed above, including martial law. The framers of the amendment realized only too well they had to look for a remedy thereto, the dislike of the people, justified or not, of martial law. And so, to make the proclamation of martial law remotest, but nevertheless enable the government to meet emergencies effectively, they conceived the Idea of granting to the President (Prime Minister) the power endowed to him by Amendment No. 6.

Skeptics and hardcore critics of the administration there must be who would sarcastically allude to Amendment No. 6 as martial law just the same but only like a dog with merely another collar. A word of explanation is thus called for of the vital differences between one and the other.

The attitude of those who are opposed to Amendment No. 6 must be due to lack of sufficient acquaintance with the real essence of the various constitutionally authorized emergency measures imperatively needed to safeguard the national security and integrity already discussed above. The delegation of legislative power thru the issuance of rules and regulations to carry out a national policy declared by the Batasan has its own virtues as a restrained way of conferring law-making authority to the Executive during an emergency. It is limited, restricted, subject to conditions and temporary. It is obviously the simplest remedy to cope with an abnormal situation resulting in the least violence to revered democratic republican processes constitutionally established.

But being purely a political and legislative remedy, it cannot be adequate when lawless violence becomes generalized and public safety is in jeopardy, hence the need to call out the armed forces. And when such situation still aggravates to the point of requiring the preventive incarceration or detention of certain leaders or over active elements, it becomes inevitable to suspend the privilege of the writ of habeas corpus.

Should matters really go out of hand even after the putting into effect of the measures aforementioned, under the constitution. without Amendment No. 6, the only recourse would be to proclaim martial law. But inasmuch as martial law is an extreme measure that carries with it repressive and restrictive elements unpopular to liberty loving and democratically minded sectors of the country, it is but natural to think of it only as a very last resort.

Well, it is to avoid the necessity of resorting to the proclamation of martial law that Amendment No. 6 was conceived. Paraphrasing President Marcos himself, martial law is the law of the gun, that implies coercion and an active and direct role in the government by the military. Thus, the virtue of Amendment No. 6 is that such undesirable features of martial law do not have to accompany the exercise of the power thereby conferred on the Executive. To be sure, the calling out of the armed forces and the suspension of the privilege of the writ of habeas corpus, which are concomitants of martial law, may be left out or need not be resorted to when the President acts by virtue of such power. It is, therefore, evident that it is grossly erroneous to say that Amendment No. 6 is in reality no less than disguised martial law.

Apparently conceding, at least in gratia argumenti, the truth and the logic of all the foregoing discussion and conclusions, petitioner raises the question of how can Amendment No. 6 fit into the new set up under the 1981 amendments, which abolished the dual position of President Marcos of President-Prime Minister mandated by the 1976 Amendment No. 3. According to petitioner, President Marcos is President now (no longer President-Prime Minister) pursuant to the 1981 amendments and by virtue of his election as such as proclaimed by the Batasan on June 21, 1981. Not without a bit of sarcasm, petitioner even refers to the reference to the status of our government after the inauguration of President Marcos as the Fourth Republic. How then, petitioner asks, can the President of the Fourth Philippine Republic exercise powers granted to the President-Prime Minister of the provisional government established by the Transitory Provisions and conferred upon him only by Amendment No. 6 of October 1976?

If We go solely by the rules of literature, a considerable degree of plausibility, as We have intimated earlier in this opinion, may be conceded to the pose of petitioner. It indeed seems that since the positions of President and Prime Minister have been separated by the 1981 amendments and the same do not state to whom the power under Amendment No. 6 would appertain, neither the present President nor the present Prime Minister can exercise such power. But again, We hold that petitioner is laboring under a misconception of facts and of the principles of constitutional construction.

Earlier hereinabove, We discoursed on the inevitability of the conclusion that the current Batasan, being merelyinterim "in lieu of the interim National Assembly" established under Section 1 of the Transitory Provisions, it is subject to the provisions of Amendment No. 6 which was approved and ratified together with the creation of the Batasan. We have also made a rather extensive exposition of the whys and wherefores behind Amendment No. 6. As may be noted, the ultimate thrust of Our discussion is to establish as a legal proposition that behind and beneath the words of the amendment, the literal reference to "the President (Prime Minister)" in Amendment No. 6 was the intention to make such reference descriptive of the person on whom is vested the totality of the executive power under the system of government established thereby. For as a matter of general principle in constitutional law, belonging as he does to the political department of the government, it is only with such official that, the high prerogative of policy determination can be shared. And in this connection, it is very important to note that the amendment does not speak of the "incumbent President" only, as in the other amendments, like Nos. 1, 3 and 5, but of the President, meaning to include all future presidents. More, Amendment No. 6 makes mention not only of the interim Batasan but also of the regular one. All these unmistakably imply that the power conferred upon the President thereby was not for President Marcos alone but for whoever might be President of the Philippines in the future.

As to the parenthetical mention therein of the Prime Minister, We are of the considered view that it was necessary to do so because under the governmental system then, which was markedly Prime Ministerial, the substantive executive powers were vested in the Prime Minister, the President being merely the symbolical and ceremonial head of state, and the two positions were being held by one and the same person. In other words, the power was contemplated to be conferred upon whomsoever was vested the executive power, and that is as it should be, for, to reiterate, from the very nature of the power itself, the authority to legislate should be allowed, if at all, to be shared only with one in the political department, directly deriving power from the vote of the people.

Withal, as the Solicitor General aptly posits, it is neither sound nor in consonance with well and long settled principles of constitutional construction to recognize amendments or repeals of constitutional provisions by implications, specially in regard to a transcendental matter as that herein under discussion. Indeed, the fact that Amendment No. 6 was not in any way or sense mentioned in the amendments submitted to the people for ratification in 1981 and there being nothing in the latter intrinsically inconsistent with the former, it is safe to conclude that it would be deceiving the people themselves and depriving them of something they had decided in 1976 to be part of the fundamental law of the land to now eliminate the power conferred by them upon the Executive of sharing legislative authority with the Batasan on appropriate occasions of emergency and urgency.

Anent petitioner's claim that the President may not constitutionally grant the amnesty provided for in P.D. 1840, to Our mind, the following well taken brief answer of the Solicitor General, with whom We fully agree, is more than sufficient to dispose of the same adversely to petitioner's stance:

Petitioner argues that Presidential Decree 1840 is likewise invalid for it did not enjoy the concurrence of the Batasan. He relies on Article VII, Section 11 of the Constitution which provides that —

The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures and with the concurrence of the Batasang Pambansa, grant amnesty.

Again, we beg to disagree. Article VII, sec. 11, applies only when the President is exercising his power of executive clemency. In the case at bar, Presidential Decree 1840 was issued pursuant to his power to legislate under Amendment No. 6. It ought to be indubitable that when the President acts as legislator as in the case at bar, he does not need the concurrence of the Batasan. Rather, he exercises concurrent authority vested by the Constitution.

We cannot close this opinion without underscoring the patent tendency and unrelenting effort of the leadership of the country to make our government and our way of life indigenously Filipino as much as it is possible to make them so. It has, of course, tried its utmost to see what is good in other lands, but it has chosen generally to bring out what is best in our own traditions, usages, customs and systems that have proven efficacious and beneficial during the times of our forebears. The sanggunians and barangays, which have inherited from the Filipinos of the past and that have been institutionalized in Constitutional Amendment No. 7 of 1976 have, as everyone can see, proven to be unshakable bedrocks for the foundation of duly constituted governmental authority with firm nationwide mass base. Our present government, if in some ways similar to any foreign one, is in truth a product of our own genius in political science and matters of government. Nowhere else in the world but in the Philippines are martial law decrees and acts subject to the judicial scrutiny of the Supreme Court. Amendment No. 6 is of the same strain. It is our native and indigenous way of coping with crucial situations.

We are Filipinos, so much so that the writer of this opinion has purposely avoided reference to, much less lifted quotations from alien jurisprudence and authorities. If only in this particular case, it is but appropriate to use language and style of our own.

All the above premises taken into account. Our considered conclusion and judgment is that Amendment No. 6 of October 1976 of the Constitution of 1973 has not been in anyway altered or modified, much less repealed by the constitutional amendments of 1981.

WHEREFORE, the petition is dismissed. No costs.

Makasiar, Concepcion, Jr. Guerrero, Plana, Escolin, Vasquez and Relova, JJ., concur.

Melencio-Herrera, J., concur in the result.

Teehankee, I., reserves his vote.

Gutierrez, Jr. J., is on leave.

G.R. No. 91023 July 13, 1990

METROPOLITAN TRAFFIC COMMAND WEST TRAFFIC DISTRICT, petitioner, vs.HON. ARSENIO M. GONONG, in his capacity as Presiding Judge of the Regional Trial Court, Branch 8 at Manila, and DANTE S. DAVID, respondents.

Dante S. David for and in his own behalf as private respondent.

 

CRUZ, J.:

We deal here with a practice known to many motorists in Metro Manila: the removal of the license plates of illegally parked vehicles. This was challenged by the private respondent in the regional trial court of Manila, which held the practice unlawful. The petitioner is now before us, urging reversal of the decision for grave abuse of discretion.

The original complaint was filed with the said court on August 10, 1989, by Dante S. David, a lawyer, who claimed that the rear license plate, of his car was removed by the Metropolitan Traffic Command while the vehicle was parked on Escolta. He questioned the petitioner's act on the ground not only that the car was not illegally parked but, more importantly, that there was no ordinance or law authorizing such removal. He asked that the practice be permanently enjoined and that in the meantime a temporary restraining order or a writ of preliminary injunction be issued.

Judge Arsenio M. Gonong issued a temporary restraining order on August 14, 1989, and hearings on the writ of preliminary injunction were held on August 18, 23, and 25, 1989. The writ was granted on this last date. The parties also agreed to submit the case for resolution on the sole issue of whether there was a law or ordinance authorizing the removal of the license plates of illegally parked vehicles. The parties then submitted simultaneous memoranda in support of their respective positions, following which the respondent judge rendered the assailed decision.

In ruling for the complainant, Judge Gonong held that LOI 43, which the defendant had invoked, did not empower it "to detach, remove and confiscate vehicle plates of motor vehicles illegally parked and unattended as in the case at bar. It merely authorizes the removal of said vehicles when they are obstacles to free passage or continued flow of traffic on streets and highways." At any rate, he said, the LOI had been repealed by PD 1605. Moreover, the defendant had not been able to point to any MMC rule or regulation or to any city ordinance to justify the questioned act. On the allegation that the practice was "the root cause of graft and corruption or at the very least the equivalent of street racket among defendant's deployed agents," His Honor made the following pointed observations:

At this juncture, it may not be amiss to say, that if the arbitrary and capricious detachment and confiscation of vehicles plates illegally parked and unattended as in the act complained of in the instant case, the image of the man clothed in a traffic or police uniform will be greatly impaired if not cursed with disrespect on the part of those who have suffered at his hands. Worse, he will cease (if he had not already ceased) to be the law-abiding, courageous and valiant protector of a citizen of the Republic that he is meant to be, and instead his real oppressor and enemy, thereby fortifying the contemporaneous public perception that he is a dyed-in-the-wool extortionist if not an unmitigated chiseler. 1

It bears noting that this petition should have been filed first with the Court of Appeals, which has concurrent jurisdiction with this Court on decisions of the regional trial courts involving questions of law. However, in view of the importance of the issue raised, we have decided to take cognizance thereof under Rule 65 of the Rules of Court so we can address and resolve the question directly.

Upon the filing of this petition, we issued a temporary restraining order dated February 6, 1990, to prevent enforcement of the said decision until further orders from this Court. Thereafter, we required a comment from the private respondent, to which the petitioner filed a reply as also directed.

The petitioner reiterates and reinforces its argument in the court below and insists that LOI 43 remains in force despite the issuance of PD 1605. It contends that there is no inconsistency between the two measures because the former deals with illegally parked vehicles anywhere in the Philippines whereas the latter deals with the regulation of the flow of traffic in the Metro Manila area only. The two measures may be enforced together because implied repeals are not favored and, furthermore, to look at them another way, LOI 43 is the special law dealing only with illegal parking while PD 1605 is the general law dealing with all other kinds of traffic violations. The special law must of course prevail over the general law.

The petitioner also deplores the above-quoted remarks of the trial judge, pointing out that the parties had agreed to limit the issue to whether there was a statutory basis for the act complained of. And even assuming that abuses have been committed in the enforcement of LOI 43, the remedy is not to disregard it or consider it revoked but to prosecute the guilty parties.

In his comment, the private respondent argues that LOI 43 has been repealed by PD 1605, which specifies all the sanctions available against the various traffic violations, including illegal parking. He stresses that removal and confiscation of the license plates of illegally parked vehicles is not one of them, the penalties being limited in the decree to imposition of fine and suspension or revocation of driver's licenses or certificates of public convenience, etc. Expressio unius est exclusio alterius. He agrees that the special law prevails over the general law but maintains it is PD 1605 that is the special law because it is applicable only on Metro Manila and LOI 43 that is the general law because it was intended to operate throughout the country. As for his allegation that the challenged practice is a source of graft, he maintains that it was not improper to discuss it in his memorandum because it was pertinent to the central issue under consideration. Finally, he claims that removal and confiscation of the license plate without notice and hearing violates due process because such license plate is a form of property protected by the Bill of Rights against unlawful deprivation.

In its reply, the petitioner faults the private respondent for belatedly raising the constitutionality of LOI 43, suggesting faintly that this should not be permitted. In any case, it maintains, the license plate is not property in the constitutional sense, being merely the identification of the vehicle, and its "temporary confiscation" does not deprive the owner of the use of the vehicle itself. Hence, there is no unlawful taking under the due process clause. The petitioner also takes issue with the contention that it is PD 1605 that should be considered the special law because of its limited territorial application. Repeal of LOI 43 on that ground would run counter to the legislative intention as it is in fact in Metro Manila that the problem of illegal parking is most acute.

LOI 43, entitled Measures to Effect a Continuing Flow of Transportation on Streets and Highways, was issued on November 28, 1972, with the following pertinent provisions:

Motor vehicles that stall on the streets and highways, streets and sidewalks, shall immediately be removed by their owners/users; otherwise said vehicles shall be dealt with and disposed in the manner stated hereunder;

1. For the first offense the stalled or illegally parked vehicle shall be removed, towed and impounded at the expense of the owner, user or claimant;

2. For the second and subsequent offenses, the registry plates of the vehicles shall be confiscated and the owner's certificate of registration cancelled. (Emphasis supplied).

PD 1605 (Granting the Metropolitan Manila Commission Central Powers Related to Traffic Management, Providing Penalties, and for Other Purposes) was issued, also by President Marcos, on November 21, 1978, and pertinently provides:

Section 1. The Metropolitan Manila Commission shall have the power to impose fines and otherwise discipline drivers and operators of motor vehicles for violations of traffic laws, ordinances, rules and regulations in Metropolitan Manila in such amounts and under such penalties as are herein prescribed. For his purpose, the powers of the Land Transportation Commission and the Board of Transportation under existing laws over such violations and punishment thereof are hereby transferred to the Metropolitan Manila Commission. When the proper penalty to be imposed is suspension or revocation of driver's license or certificate of public convenience, the Metropolitan Manila Commission or its representatives shall suspend or revoke such license or certificate. The suspended or revoked driver's license or the report of suspension or revocation of the certificate of public convenience shall be sent to the Land Transportation Commission or the Board of Transportation, as the case may be, for their records update.

xxx xxx xxx

Section 3. Violations of traffic laws, ordinances, rules and regulations, committed within a twelve-month period, reckoned from the date of birth of the licensee, shall subject the violator to graduated fines as follows: P10.00 for the first offense, P20.00 for the second offense, P50.00 for the third offense, a one-year suspension of driver's license for the fourth offense, and a revocation of the driver' license for the fifth offense: Provided, That the Metropolitan Manila Commission may impose higher penalties as it may

deem proper for violations of its ordinances prohibiting or regulating the use of certain public roads, streets or thoroughfares in Metropolitan Manila.

xxx xxx xxx

Section 5. In case of traffic violations, the driver's license shall not be confiscated but the erring driver shall be immediately issued a traffic citation ticket prescribed by the Metropolitan Manila Commission which shall state the violation committed, the amount of fine imposed for the violation and an advice that he can make payment to the city or municipal treasurer where the violation was committed or to the Philippine National Bank or Philippine Veterans Bank or their branches within seven days from the date of issuance of the citation ticket.

If the offender fails to pay the fine imposed within the period herein prescribed, the Metropolitan Manila Commission or the law enforcement agency concerned shall endorse the case to the proper fiscal for appropriate proceedings preparatory to the filing of the case with the competent traffic court, city or municipal court.

If at the time a driver renews his driver's license and records show that he has an unpaid fine, his driver's license shall not be renewed until he has paid the fine and corresponding surcharges.

xxx xxx xxx

Section 8. Insofar as the Metropolitan Manila area is concerned, all laws, decrees, orders, ordinances, rules and regulations, or parts thereof inconsistent herewith are hereby repealed or modified accordingly. (Emphasis supplied).

A careful reading of the above decree will show that removal and confiscation of the license plate of any illegally parked vehicle is not among the specified penalties. Moreover, although the Metropolitan Manila Commission is authorized by the decree to "otherwise discipline" and "impose higher penalties" on traffic violators, whatever sanctions it may impose must be "in such amounts and under such penalties as are herein prescribed." The petitioner has not pointed to any such additional sanctions, relying instead on its argument that the applicable authority for the questioned act is LOI 43.

The petitioner stresses that under the decree, "the powers of the Land Transportation Commission and the Board of Transportation over such violations and punishment thereof are (hereby) transferred to the Metropolitan Manila Commission," and one of such laws is LOI 43. The penalties prescribed by the LOI are therefore deemed incorporated in PD 1605 as additional to the other penalties therein specified.

It would appear that what the LOI punishes is not a traffic violation but a traffic obstruction, which is an altogether different offense. A violation imports an intentional breach or disregard of a rule, as where a driver leaves his vehicle in a no-parking area against a known and usually visible prohibition. Contrary to the common impression, LOI 43 does not punish illegal parking per se but parking of stalled vehicles, i.e., those that involuntarily stop on the road due to some unexpected trouble such as engine defect, lack of gasoline, punctured tires, or other similar cause. The vehicle is deemed illegally parked because it obstructs the flow of traffic, but only because it has stalled. The obstruction is not deliberate. In fact, even the petitioner recognizes that "there is a world of difference between a stalled vehicle and an illegally parked and unattended one" and suggests a different treatment for either. "The first means one which stopped unnecessarily or broke down while the second means one which stopped to accomplish something, including temporary rest. 2

LOI 43 deals with motor vehicles "that stall on the streets and highways' and not those that are intentionally parked in a public place in violation of a traffic law or regulation. The purpose of the LOI evidently is to discipline the motorist into keeping his vehicle in good condition before going out into the streets so as not to cause inconvenience to the public when the car breaks down and blocks other vehicles. That is why, for the first offense, the stalled vehicle is immediately towed at the owner's expense to clear the street of the traffic obstruction. Where it appears that the owner has not learned from his first experience because the vehicle has stalled again, presumably due to his failure to repair it, the penalty shall be confiscation of the license plate and cancellation of the certificate of registration petition.

It is worth noting that it is not the driver's license that is confiscated and canceled when the vehicle stalls on a public street. The LOI goes against the vehicle itself. The object of the measure is to ensure that only motor vehicles in good condition may use the public streets, and this is effected by confiscating the license plates and canceling the certificates of registration of those vehicles that are not roadworthy.

In the case of the private respondent, it is not alleged or shown that his vehicle stalled on a public thoroughfare and obstructed the flow of traffic. The charge against him is that he purposely parked his vehicle in a no parking area (although this is disputed by him).i•t•c-aüsl The act, if true, is a traffic violation that may not be punished under LOI 43. The applicable law is PD 1605, which does not include removal and confiscation of the license plate of the vehicle among the imposable penalties.

Indeed, even if LOI 43 were applicable, the penalty of confiscation would still not be justified as it has not been alleged, much less shown, that the illegal parking was a second or subsequent offense. That circumstance must be established at a trial before a court of justice where the vehicle owner shall have a right to be heard in his defense. The second or subsequent offense cannot be simply pronounced by the traffic authorities without hearing and without proof. Confiscation of the registry plate without a judicial finding that the offense charge is a second or subsequent one would, unless the owner concedes this point, be invalid.

While it is true that the license plate is strictly speaking not a property right, it does not follow that it may be removed or confiscated without lawful cause. Due process is a guaranty against all forms of official arbitrariness. Under the principle that ours is a government of laws and not of men, every official must act by and within the authority of a valid law and cannot justify the lack of it on the pretext alone of good intentions. It is recalled that more than seventy years ago, the mayor of Manila deported one hundred seventy prostitutes to Davao for the protection of the morals and health of the city. This Court acknowledged his praiseworthy purpose but just the same annulled his unauthorized act, holding that no one could take the law into his own hands. 3 We can rule no less in the case before us.

We find that there is no inconsistency between LOI 43 and PD 1605, whichever is considered the special law either because of its subject or its territorial application. The former deals with motor vehicles that have stalled on a public road while the latter deals with motor vehicles that have been deliberately parked in a no-parking area; and while both cover illegal parking of motor vehicles, the offense is accidental under the first measure and intentional under the second. This explains why the sanctions are different. The purpose of the LOI is to discourage the use of the public streets by motor vehicles that are likely to break down while that of the decree is to penalize the driver for his defiance of the traffic laws.

As it has not been shown that the private respondent's motor vehicle had stalled because of an engine defect or some other accidental cause and, no less importantly, that it had stalled on the road for a second or subsequent time, confiscation of the license plate cannot be justified under LOI 43. And neither can that sanction be sustained under PD 1605, which clearly provides that "in case of traffic violations, (even) the driver's license shall not be confiscated," let alone the license plate of the motor vehicle. If at all, the private respondent may be held liable for illegal parking only and subjected to any of the specific penalties mentioned in Section 3 of the decree.

We recognize the problem of the traffic policeman who comes upon an illegally parked and unattended vehicle and is unable to serve a citation on the offending driver who is nowhere in sight. But that problem is not addressed to the courts; it is for the legislative and administrative authorities to solve. What is clear to the Court is that the difficulty cannot be avoided by the removal of the license plate of the offending vehicle because the petitioner has not shown that this penalty is authorized by a valid law or ordinance.

The petitioner complains that the respondent judge did not confine himself to the issue agreed upon by the parties and made gratuitous accusations that were not only irrelevant but virtually condemned the whole traffic force as corrupt. Assuming that this issue was indeed not properly raised at the trial, the Court is nevertheless not inhibited from considering it in this proceeding, on the basis of its own impressions on the matter.

This Court is not isolated from the mainstream of society and secluded in a world of its own, unconcerned with the daily lives of the rest of the nation. On the contrary, the members of this Court mix with the people and know their problems and complaints. And among these are the alleged abuses of the police in connection with the issue now before us.

It is claimed that the removal of the license plates of illegally parked motor vehicles in Metro Manila has become a veritable gold mine for some police officers. To be sure, we do not have hard, provable facts at hand but only vague and unsubstantiated rumors that could be no more than malicious and invented charges. Nevertheless, these accusations have become too prevalent and apparently too persuasive that they cannot be simply swept under the rug.

The widespread report is that civilian "agents," mostly street urchins under the control and direction of certain policemen, remove these license plates from illegally parked vehicles and later discreetly suggest to the owners that these may be retrieved for an unofficial fee. This ranges from P50.00 to P200.00, depending on the type of vehicle. If the owner agrees, payment is usually made and the license plate returned at a private rendezvous. No official receipt is issued. Everything is done quietly. The owners, it is said, prefer this kind of fast settlement to the inconvenience of an official proceeding that

may entail not only the payment of a higher fine but also other administrative impositions, like attendance at a traffic seminar.

The Court is not saying that these reports are true nor is it stigmatizing the entire police force on the basis of these unsubstantiated charges. But it does believe and stress that the proper authorities should take official notice of these reports instead of blandly dismissing them as mere canards that do not deserve their attention and concern. An inquiry is in our view indicated. The old adage that where there's smoke there's fire is not necessarily true and can hardly be the rationale of a judicial conclusion; but the Court feels just the same that serious steps should be taken, especially because of the persistence of these charges, to determine the source of the smoke.

We realize the seriousness of our traffic problems, particularly in Metro Manila, and commend the earnest efforts of the police to effect a smoother flow of vehicles in the public thoroughfares for the comfort and convenience of the people. But we must add, as a reminder that must be made, that such efforts must be authorized by a valid law, which must clearly define the offenses proscribed and as clearly specify the penalties prescribed.

WHEREFORE, the petition is DISMISSED. The Court holds that LOI 43 is valid but may be applied only against motor vehicles that have stalled in the public streets due to some involuntary cause and not those that have been intentionally parked in violation of the traffic laws. The challenged decision of the trial court is AFFIRMED in so far as it enjoins confiscation of the private respondent's license plate for alleged deliberate illegal parking, which is subject to a different penalty. The temporary restraining order dated February 6, 1990, is LIFTED.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

[G.R. No. 130775.  September 27, 2004]

THE NATIONAL LIGA NG MGA BARANGAY, represented by ALEX L. DAVID in his capacity as National President and for his own Person, President ALEX L. DAVID, petitioners, vs. HON. VICTORIA ISABEL A. PAREDES, Presiding Judge, Regional Trial Court, Branch 124, Caloocan City, and THE DEPARTMENT OF INTERIOR and LOCAL GOVERNMENT, represented the HON. SECRETARY ROBERT Z. BARBERS and MANUEL A. RAYOS, respondents.

[G.R. No.  131939.  September 27, 2004]

LEANDRO YANGOT, BONIFACIO LACWASAN and BONY TACIO, petitioners, vs. DILG Secretary ROBERT Z. BARBERS and DILG Undersecretary MANUEL SANCHEZ, respondents.

D E C I S I O N

Tinga, J.:

At bottom, the present petition inquires into the essential nature of the Liga ng mga Barangay and questions the extent of the power of Secretary of the Department of Interior and Local Government (DILG), as alter ego of the President.  More immediately, the petition disputes the validity of the appointment of the DILG as the interim caretaker of the Liga ng mga Barangay.

On 11 June 1997, private respondent Manuel A. Rayos [as petitioner therein], Punong Barangay of Barangay 52, District II, Zone 5, District II, Caloocan City, filed a petition for prohibition and mandamus, with prayer for a writ of preliminary injunction and/or temporary restraining order and damages before the Regional Trial Court (RTC) of Caloocan,[1] alleging that respondent therein Alex L. David [now petitioner], Punong Barangay of Barangay 77, Zone 7, Caloocan City and then president of the Liga Chapter of Caloocan City and of the Liga ng mga BarangayNational Chapter, committed certain irregularities in the notice, venue and conduct of the proposed synchronized Liga ng mga Barangayelections in 1997.  According to the petition, the irregularities consisted of the following: (1) the publication of the notice in the Manila Bulletin but without notifying in writing the individual punong barangays of Caloocan City;[2] (2) the Notice of Meeting dated 08 June 1997 for the Liga Chapter of Caloocan City did not specify whether the meeting scheduled on 14 June 1997 was to be held at 8:00 a.m. or 8:00 p.m., and worse, the meeting was to be held in Lingayen, Pangasinan;[3] and (3) the deadline for the filing of the Certificates of Candidacy having been set at 5:00 p.m. of the third “day prior to the above election day”, or on 11 June 1997,[4] Rayos failed to meet  said deadline since he was not able to obtain a certified true copy of the COMELEC Certificate of Canvas and Proclamation of Winning Candidate, which were needed to be a delegate, to vote and be voted for in the Liga election.  On 13 June 1997, the Executive Judge issued a temporary restraining order (TRO), effective for seventy-two (72) hours, enjoining the holding of the general membership and election meeting of Liga Chapter of Caloocan City on 14 June 1975.[5]

However, the TRO was allegedly not properly served on herein petitioner David, and so the election for the officers of the Liga-Caloocan was held as scheduled.[6] Petitioner David was proclaimed President of the Liga-Caloocan, and thereafter took his oath and assumed the position ofex-officio member of the Sangguniang Panlungsod of Caloocan.

On 17 July 1997, respondent Rayos filed a second petition, this time for quo warranto, mandamus and prohibition, with prayer for a writ of preliminary injunction and/or temporary restraining order and damages, against David, Nancy Quimpo, Presiding Officer of the Sangguniang Panlungsod of Caloocan City, and Secretary Barbers.[7] Rayos alleged that he was elected President of the Liga Caloocan Chapter in the elections held on 14 June 1997 by the members of the Caloocan Chapter pursuant to their Resolution/Petition No. 001-97.[8] On 18 July 1997, the presiding judge granted the TRO, enjoining therein respondents David, Quimpo and Secretary Barbers from proceeding with the synchronized elections for the Provincial and Metropolitan Chapters of the Liga scheduled on 19 July 1997, but only for the purpose of maintaining the status quo and effective for a period not exceeding seventy-two (72) hours.[9]

Eventually, on 18 July 1997, at petitioner David’s instance, Special Civil Action (SCA) No. C-512 pending before Branch 126 was consolidated with SCA No. C-508 pending before Branch 124.[10]

Before the consolidation of the cases, on 25 July 1997, the DILG through respondent Secretary Barbers, filed in SCA No. C-512 an Urgent Motion,[11] invoking the President’s power of general supervision over all local government units and seeking the following reliefs:

WHEREFORE, in the interest of the much-needed delivery of basic services to the people, the maintenance of public order and to further protect the interests of the forty-one thousand barangays all over the country, herein respondent respectfully prays:

a) That the Department of the Interior and Local Government (DILG), pursuant to its delegated power of general supervision, be appointed as the Interim Caretaker to manage and administer the affairs of the Liga, until such time that the new set of National Liga Officers shall have been duly elected and assumed office; ...[12]

The prayer for injunctive reliefs was anchored on the following grounds: (1) the DILG Secretary exercises the power of general supervision over all government  units by virtue of Administrative Order No. 267 dated 18 February 1992; (2) the Liga ng mga Barangay is a government organization; (3) undue interference by some local elective officials during the Municipal and City Chapter elections  of the Liga ng mga Barangay; (4) improper issuance of confirmations of the elected Liga Chapter officers by petitioner David and the National Liga Board; (5) the need for the DILG to provide remedies measured in view of the confusion and chaos sweeping the Liga ng mga Barangay and the incapacity of the National Liga Board to address the  problems properly.

On 31 July 1997, petitioner David opposed the DILG’s Urgent Motion, claiming that the DILG, being a respondent in the case, is not allowed to seek any sanction against a co-respondent like David, such as by filing a cross-claim, without first seeking leave of court.[13] He also alleged that the DILG’s request to be appointed interim caretaker constitutes undue interference in the internal affairs of the Liga, since the Liga is not subject to DILG control and supervision.[14]

Three (3) days after filing its Urgent Motion, on 28 July 1997, and before it was acted upon by the lower court, the DILG through then Undersecretary Manuel Sanchez, issued Memorandum Circular No. 97-176.[15] It cited the reported violations of the Liga ng mga BarangayConstitution and By-Laws by David and “widespread chaos and confusion” among local government officials as to who were the qualified ex-officio Liga members in their respective sangunians.[16] Pending the appointment of the DILG “as the Interim Caretaker of the Liga ng mga Barangay by the court and until the officers and board members of the national Liga Chapter have been elected and have assumed office,” the Memorandum Circular directed all provincial governors, vice governors, city mayors, city vice mayors, members of the sangguniang panlalawigan and panlungsod, DILG regional directors and other concerned officers, as follows:

1. All concerned are directed not to recognize and/or honor any Liga Presidents of the Provincial and Metropolitan Chapters as ex-officio members of the sanggunian concerned until further notice from the Courts or this Department;

2.  All concerned are directed to disregard any pronouncement and/or directive issued by Mr. Alex David on any issue or matter relating to the affairs of the Liga ng mga Barangay until further notice from the Courts or this Department.[17]

On 04 August 1997, public respondent Judge Victoria Isabel A. Paredes issued the assailed order, [18] the pertinent portions of which read, thus:

The authority of the DILG to exercise general supervisory jurisdiction over local government units, including the different leagues created under the Local Government Code of 1991 (RA 7160) finds basis in Administrative Order No. 267 dated February 18, 1992.  Specifically, Section 1 (a) of the said Administrative Order provides a broad premise for the supervisory power of the DILG.  Administratively, the DILG’s supervision has been tacitly recognized by the local barangays, municipalities, cities and provinces as shown by the evidences presented by respondent David himself (See Annexes “A” to “C”).  The fact that the DILG has sought to refer the matters therein to the National Liga Board/Directorate does not ipso facto mean that it has lost jurisdiction to act directly therein.  Jurisdiction is conferred by law and cannot be claimed or lost through agreements or inaction by individuals.  What respondent David may term as “interference” should caretakership be allowed, this Court would rather view as a necessary and desirable corollary to the exercise of supervision.[19]

Political motivations must not preclude, hamper, or obstruct the delivery of basic services and the perquisites of public service.  In this case, the fact of confusion arising from conflicting appointments, non-action, and uninformed or wavering decisions of the incumbent National Liga Board/Directorate, having been satisfactorily established, cannot simply be brushed aside as being politically motivated or arising therefrom.  It is incumbent, therefore, that the DILG exercise a more active role in the supervision of the affairs and operations of the National Liga Board/ Directorate at least until such time that the regular National Liga Board/Directorate may have been elected, qualified and assumed office.[20]

xxx

WHEREFORE, premises considered, the Urgent Motion of the DILG for appointment as interim caretaker, until such time that the regularly elected National Liga Board of Directors shall have qualified and assumed office, to manage and administer the affairs of the National Liga Board, is hereby GRANTED.[21]

On 11 August 1997, petitioner David filed an urgent motion for the reconsideration of the assailed order  and to declare respondent Secretary Barbers in contempt of Court.[22] David claimed that the 04 August 1997 order divested the duly elected members of the Board of Directors of the Liga National Directorate of their positions without due process of law.  He also wanted Secretary Barbers declared in contempt for having issued, through his Undersecretary, Memorandum Circular No. 97-176, even before respondent judge issued the questioned order, in mockery of the justice system.  He implied that Secretary Barbers knew about respondent judge’s questioned order even before it was promulgated.[23]

On 11 August 1997, the DILG issued Memorandum Circular No. 97-193,[24] providing supplemental guidelines for the 1997 synchronized elections of the provincial and metropolitan chapters and for the election of the national chapter of the Liga ng mga Barangay. The Memorandum Circular set the synchronized elections for the provincial and metropolitan chapters on 23 August 1997 and for the national chapter on 06 September 1997.

On 12 August 1997, the DILG issued a Certificate of Appointment [25] in favor of respondent Rayos as president of the Liga ng mga Barangay of Caloocan City.  The appointment purportedly served as Rayos’s “legal basis for ex-officio membership in the Sangguniang Panlungsod of Caloocan City” and “to qualify and participate in the forthcoming National Chapter Election of the Liga ng mga Barangay.”[26]

On 23 August 1997, the DILG conducted the synchronized elections of Provincial and Metropolitan Liga Chapters. Thereafter, on 06 September 1997, the National Liga Chapter held its election of officers and board of directors, wherein James Marty L. Lim was elected as President of the National Liga.[27]

On 01 October 1997, public respondent judge denied David’s motion for reconsideration, [28] ruling that there was no factual or legal basis to reconsider the appointment of the DILG as interim caretaker of the National Liga Board and to cite Secretary Barbers in contempt of court.[29]

On 10 October 1997, petitioners filed the instant Petition for Certiorari[30] under Rule 65 of the Rules of Court, seeking to annul public respondent judge’s orders of 04 August 1997 and 01 October 1997.  They dispute the latter’s opinion on the power of supervision of the President under the Constitution, through the DILG over local governments, which is the same as that of the DILG’s as shown by its application of the power on the Liga ng mga Barangay.  Specifically, they claim that the public respondent judge’s  designation of the DILG as interim caretaker and the acts which the DILG  sought to implement pursuant to its designation as such are beyond the scope of the Chief Executive’s power of supervision.

To support the petition, petitioners argue that under Administrative Order No. 267, Series of 1992, the power of general supervision of the President over local government units does not apply to the Liga and its various chapters precisely because the Liga is not a local government unit, contrary to the stance of the respondents.[31]

Section 507 of the Local Government Code (Republic Act No. 7160)[32] provides that the Liga shall be governed by its own Constitution and By-laws.  Petitioners posit that the duly elected officers and directors of the National Liga elected in 1994 had a vested right to their positions and could only be removed therefrom for cause by affirmative vote of two-thirds (2/3) of the entire membership pursuant to the Liga Constitution and By-Laws, and not by mere issuances of the DILG, even if bolstered by the dubious authorization of respondent judge.[33] Thus, petitioners claim that the questioned order divested the then incumbent officers and directors of the Liga of their right to their respective offices without due process of law.

Assuming the Liga could be subsumed under the term “local governments,” over which the President, through the DILG Secretary, has the power of supervision,[34] petitioners point out that still there is no legal or constitutional basis for the appointment of the DILG as interim caretaker.[35] They stress that the actions contemplated by the DILG as interim caretaker go beyond supervision, as what it had sought and obtained was authority to alter, modify, nullify or set aside the actions of the Liga Board of Directors  and even to substitute its judgment over that of the latter — which are all clearly one of control.[36] Petitioners question the appointment of Rayos as Liga-Caloocan President since at that time petitioner David was occupying that position which was still the subject of the quo warranto proceedings Rayos himself had instituted.[37]Petitioners likewise claim that DILG Memorandum Circular No. 97-193, providing supplemental guidelines for the synchronized elections of theLiga, replaced the implementing rules adopted by the Liga pursuant to its Constitution and By-laws.[38] In fact, even before its appointment as interim caretaker, DILG specifically enjoined all heads of government units from recognizing petitioner David and/or honoring any of his pronouncements relating to the Liga.[39]

Petitioners rely on decision in Taule v. Santos,[40] which, they claim, already passed upon the “extent of authority of the then Secretary of Local Government over the katipunan ng mga barangay or the barangay councils,” as it specifically ruled that the “Secretary [of Local Government] has no authority to pass upon the validity or regularity of the election of officers of the katipunan.”[41]

For his part, respondent Rayos avers that since the Secretary of the DILG supervises the acts of local officials by ensuring that they act within the scope of their prescribed powers and functions and since members of the various leagues, such as the Liga in this case, are themselves officials of local government units, it follows that the Liga members are subject to the power of supervision of the DILG.[42] He adds that as the DILG’s management and administration of the Liga affairs was limited only to the conduct of the elections, its actions were consistent with its rule-making power and power of supervision under existing laws.[43] He asserts that in assailing the appointment of the DILG as interim caretaker, petitioners failed to cite any provision of positive law in support of their stance. Thus, he adds, “if a law is silent, obscure or insufficient, a judge may apply a rule he sees fit to resolve the issue, as long as the rule chosen is in harmony with general interest, order, morals and public policy,”[44] in consonance with Article 9 of the Civil Code.[45]

On the other hand, it is quite significant that the Solicitor General has shared petitioners’ position.  He states that the DILG’s act of managing and administering the affairs of the National Liga Board are not merely acts of supervision but plain manifestations of control and direct takeover of the functions of the National Liga Board,[46] going beyond the limits of the power of general supervision of the President over local governments. [47] Moreover, while the Liga may be deemed a government organization, it is not strictly a local government unit over which the DILG has supervisory power.[48]

Meanwhile, on 24 September 1998, James Marty L. Lim, the newly elected President of the National Liga, filed a Motion for Leave to File Comment in Intervention,[49] with his Comment in Intervention attached,[50] invoking the validity of the DILG’s actions relative to the conduct of the Liga elections.[51] In addition, he sought the dismissal of the instant petition on the following grounds: (1) the issue of validity or invalidity of the questioned order has been rendered moot and academic by the election of Liga officers; (2) the turn-over of the administration and management of Liga affairs to the Liga officers; and (3) the recognition and acceptance by the members of the Liga nationwide.[52]

In the interim, another petition, this time for Prohibition with Prayer for a Temporary Restraining Order, [53] was filed by several presidents ofLiga Chapters, praying that this Court declare the DILG Secretary and Undersecretary are not vested with any constitutional or legal power to exercise control or even supervision over the National Liga ng mga Barangay, nor to take over the functions of its officers or suspend its constitution; and declare void any and all acts committed by respondents therein in connection with their caretakership of the Liga.[54] The petition was consolidated with G.R. No. 130775, but it was eventually dismissed because the petitioners failed to submit an affidavit of service and proof of service of the petition.[55]

Meanwhile, on 01 December 1998, petitioner David died and was substituted by his legal representatives.[56]

Petitioners have raised a number of issues.[57] Integrated and simplified, these issues boil down to the question of whether or not respondent Judge acted with grave abuse of discretion in appointing the DILG as interim caretaker to administer and manage the affairs of the NationalLiga Board, per its order dated 04 August 1997.[58] In turn, the resolution of the question of grave abuse of discretion entails a couple of definitive issues, namely: (1)  whether the Liga ng mga Barangay is a government organization that is subject to the DILG Secretary’s power of supervision over local governments as the alter ego of the President, and (2) whether the respondent Judge’s designation of the DILG as interim caretaker of the Liga has invested the DILG with control over the Liga and whether DILG Memorandum Circular No. 97-176, issued before it was designated as such interim caretaker, and DILG Memorandum Circular No. 97-193 and other acts which the DILG made in its capacity as interim caretaker of the Liga, involve supervision or control of the Liga.

However, the Court should first address the question of mootness which intervenor Lim raised because, according to him, during the pendency of the present petition a general election was held; the new set of officers and directors had assumed their positions; and that supervening events the DILG had turned-over the management and administration of the Liga to new Liga officers and directors.[59] Respondent Rayos has joined him in this regard.[60] Forthwith, the Court declares that these supervening events have not rendered the instant petition moot, nor removed it from the jurisdiction of this Court.

This case transcends the elections ordered and conducted by the DILG as interim caretaker of the Liga and the Liga officers and directors who were elected to replace petitioner David and the former officers.  At the core of the petition is the validity of the DILG’s “caretakership” of theLiga and the official acts of the DILG as such caretaker which exceeded the bounds of supervision and were exercise of control.  At stake in this case is the realization of the constitutionally ensconced principle of local government autonomy;[61] the statutory objective to enhance the capabilities of barangays and municipalities “by providing them opportunities to participate actively in the implementation of national programs and projects;”[62] and the promotion of the avowed aim to ensure the independence and non-partisanship of the Liga ng mga Barangay.  The mantle of local autonomy would be eviscerated and remain an empty buzzword if unconstitutional, illegal and unwarranted intrusions in the affairs of the local governments are tolerated and left unchecked.

Indeed, it is the declared policy of the State that its territorial and political subdivisions should enjoy genuine meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals.[63] In the case of De Leon v. Esguerra,[64] the Court ruled that even barangays are meant to possess genuine and meaningful local autonomy so that they may develop fully as self-reliant communities.[65]

Furthermore, well-entrenched is the rule that courts will decide a question otherwise moot and academic if it is “capable of repetition, yet evading review.”[66] For the question of whether the DILG may validly be appointed as interim caretaker, or assume a similar position and perform acts pursuant thereto, is likely to resurrect again, and yet the question may not be decided before the actual assumption, or the termination of said assumption even.

So too, dismissing the petition on the ground of mootness could lead to the wrong impression that the challenged order and issuances are valid. Verily, that does not appear to be the correct conclusion to make since by applying opposite precedents to the issues the outcome points to invalidating the assailed order and memorandum circulars.

The resolution of the issues of whether the Liga ng mga Barangay is subject to DILG supervision, and whether the questioned “caretakership” order of the respondent judge and the challenged issuances and acts of the DILG constitute control in derogation of the Constitution, necessitates a brief overview of the barangay, as the lowest LGU, and the Liga, as a vehicle of governance and coordination.

As the basic political unit, the barangay serves as the primary planning and implementing unit of government policies, plans, programs, projects and activities in the community, and as a forum wherein the collective views of the people may be expressed, crystallized and considered, and where disputes may be amicably settled.[67]

On the other hand, the Liga ng mga Barangay[68] is the organization of all barangays, the primary purpose of which is the determination of the representation of the Liga in the sanggunians, and the ventilation, articulation, and crystallization of issues affecting barangay government administration and securing solutions thereto, through proper and legal means.[69]  The Liga ng mga Barangay shall have chapters at the municipal, city and provincial and metropolitan political subdivision levels.[70] The municipal and city chapters of the Liga are composed of thebarangay representatives from the municipality or city concerned.  The presidents of the municipal and city chapters of the Liga form the provincial or metropolitan political subdivision chapters of the Liga.  The presidents of the chapters of the Liga in highly urbanized cities, provinces and the Metro Manila area and other metropolitan political subdivisions constitute the National Liga ng mga Barangay.[71]

As conceptualized in the Local Government Code, the barangay is positioned to influence and direct the development of the entire country. This was heralded by the adoption of the bottom-to-top approach process of development which requires the development plans of the barangayto be considered in the development plans of the municipality, city or province,[72] whose plans in turn are to be taken into account by the central government [73] in its plans for the development of the entire country.[74] The Liga is the vehicle assigned to make this new development approach materialize and produce results.

The presidents of the Liga at the municipal, city and provincial levels, automatically become ex-officio members of the Sangguniang Bayan, Sangguniang Panlungsod and Sangguniang Panlalawigan, respectively.  They shall serve as such only during their term of office as presidents of the Liga chapters, which in no case shall be beyond the term of office of the sanggunian concerned.[75]

The Liga ng mga Barangay has one principal aim, namely: to promote the development of barangays and secure the general welfare of their inhabitants.[76] In line with this, the Liga is granted the following functions and duties:

a) Give priority to programs designed for the total development of the barangays and in consonance with the policies, programs and projects of the national government;

b) Assist in the education of barangay residents for people’s participation in local government administration in order to promote untied and concerted action to achieve country-wide development goals;

c) Supplement the efforts of government in creating gainful employment within the barangay;

d) Adopt measures to promote the welfare of barangay officials;

e) Serve as forum of the barangays in order to forge linkages with government and non-governmental organizations and thereby promote the social, economic and political well-being of the barangays; and

f) Exercise such other powers and perform such other duties and functions which will bring about stronger ties between barangays and promote the welfare of the barangay inhabitants.[77]

The Ligas are primarily governed by the provisions of the Local Government Code.  However, they are empowered to make their own constitution and by-laws to govern their operations. Sec. 507 of the Code provides:

Sec. 507. Constitution and By-Laws of the Liga and the Leagues. - All other matters not herein otherwise provided for affecting the internal organization of the leagues of local government units shall be governed by their respective constitution and by-laws which are hereby made suppletory to the provision of this Chapter:Provided, That said Constitution and By-laws shall always conform to the provision of the Constitution and existing laws.

Pursuant to the Local Government Code, the Liga ng mga Barangay adopted its own Constitution and By-Laws.  It provides that the corporate powers of the Liga, expressed or implied, shall be vested in the board of directors of each level of the Liga which shall:

a)  Have jurisdiction over all officers, directors and committees of the said Liga; including the power of appointment, assignment and delegation;

b)  Have general management of the business, property, and funds of said Liga;

c)  Prepare and approve a budget showing anticipated receipts and expenditures for the year, including the plans or schemes for funding purposes; and

d)  Have the power to suspend or remove from office any officer or member of the said board on grounds cited and in the manner provided in hereinunder provisions.[78]

The National Liga Board of Directors promulgated the rules for the conduct of its Liga’s general elections.[79] And, as early as 28 April 1997, the Liga National Chapter had already scheduled its general elections on 14 June 1997.[80]

The controlling provision on the issues at hand is Section 4, Article X of the Constitution, which reads in part:

Sec. The President of the Philippines shall exercise general supervision over local governments.

The 1935, 1973 and 1987 Constitutions uniformly differentiate the President’s power of supervision over local governments and his power of control of the executive departments bureaus and offices. [81] Similar to the counterpart provisions in the earlier Constitutions, the provision in the 1987 Constitution provision has been interpreted to exclude the power of control.[82]

In the early case of Mondano v. Silvosa, et al.,[83] this Court defined supervision as “overseeing, or the power or authority of an officer to see that subordinate officers perform their duties, and to take such action as prescribed by law to compel his subordinates to perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.[84] In Taule v. Santos,[85] the Court held that the Constitution permits the President to wield no more authority than that of checking whether a local government or its officers perform their duties as provided by statutory enactments.[86] Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.[87]

The case of Drilon v. Lim[88] clearly defined the extent of supervisory power, thus:

…The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them.  If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules.  He may not prescribe his own manner for the doing of the act.  He has no judgment on this matter except to see that the rules are followed…[89]

In Section 4, Article X of the Constitution applicable to the Liga ng mga Barangay?  Otherwise put, is the Liga legally susceptible to DILG suspension?

This question was resolved in Bito-Onon v. Fernandez,[90] where the Court ruled that the President’s power of the general supervision, as exercised therein by the DILG Secretary as his alter ego, extends to the Liga ng mga Barangay.

Does the President’s power of general supervision extend to the liga ng mga barangay, which is not a local government unit?

We rule in the affirmative.  In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union created by law or by authority of law, whose members are either appointed or elected government officials.  The Local Government Code defines the liga ng mga barangay as an organization of all barangays for the primary purpose of determining the representation of the liga

in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions thereto.[91]

The rationale for making the Liga subject to DILG supervision is quite evident, whether from the perspectives of logic or of practicality.  TheLiga is an aggroupment of barangays which are in turn represented therein by their respective punong barangays.  The representatives of theLiga sit in an ex officio capacity at the municipal, city and provincial sanggunians.  As such, they enjoy all the powers and discharge all the functions of regular municipal councilors, city councilors or provincial board members, as the case may be.  Thus, the Liga is the vehicle through which the barangay participates in the enactment of ordinances and formulation of policies at all the legislative local levels higher than thesangguniang barangay, at the same time serving as the mechanism for the bottom-to-top approach of development.

In the case at bar, even before the respondent Judge designated the DILG as interim caretaker of the Liga, on 28 July 1997, it issued Memorandum Circular No. 97-176, directing local government officials not to recognize David as the National Liga President and his pronouncements relating to the affairs of the Liga.  Not only was the action premature, it even smacked of superciliousness and injudiciousness. The DILG is the topmost government agency which maintains coordination with, and exercises supervision over local government units and its multi-level leagues.  As such, it should be forthright, circumspect and supportive in its dealings with the Ligas especially the Liga ng mga Barangay.  The indispensable role played by the latter in the development of the barangays  and the promotion of the welfare of the inhabitants thereof deserve no less than the full support and respect of the  other agencies of government.  As the Court held in the case of San Juan v. Civil Service Commission,[92] our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit of liberty upon which these provisions are based.[93]

When the respondent judge eventually appointed the DILG as interim caretaker to manage and administer the affairs of the Liga, she effectively removed the management from the National Liga Board and vested control of the Liga on the DILG.  Even a cursory glance at the DILG’s prayer for appointment as interim caretaker of the Liga “to manage and administer the affairs of the Liga, until such time that the new set of National Liga officers shall have been duly elected and assumed office” reveals that what the DILG wanted was to take control over theLiga. Even if said “caretakership” was contemplated to last for a limited time, or only until a new set of officers assume office, the fact remains that it was a conferment of control in derogation of the Constitution.

With his Department already appointed as interim caretaker of the Liga, Secretary Barbers nullified the results of the Liga elections and promulgated DILG Memorandum Circular No. 97-193 dated 11 August 1997, where he laid down the supplemental guidelines for the 1997 synchronized elections of the provincial and metropolitan chapters and for the election of the national chapter of the Liga ng mga Barangay;scheduled dates for the new provincial, metropolitan and national chapter elections; and appointed respondent Rayos as president of Liga-Caloocan Chapter.

These acts of the DILG went beyond the sphere of general supervision and constituted direct interference with the political affairs, not only of the Liga, but more importantly, of the barangay as an institution.  The election of Liga officers is part of the Liga’s internal organization, for which the latter has already provided guidelines. In succession, the DILG assumed stewardship and jurisdiction over the Liga affairs, issued supplemental guidelines for the election, and nullified the effects of the Liga-conducted elections.  Clearly, what the DILG wielded was the power of control which even the President does not have.

Furthermore, the DILG assumed control when it appointed respondent Rayos as president of the Liga-Caloocan Chapter prior to the newly scheduled general Liga elections, although petitioner David’s term had not yet expired.  The DILG substituted its choice, who was Rayos, over the choice of majority of the punong barangay of Caloocan, who was the incumbent President, petitioner David.  The latter was elected and had in fact been sitting as an ex-officio member of the sangguniang panlungsod in accordance with the Liga Constitution and By-Laws.  Yet, the DILG extended the appointment to respondent Rayos although it was aware that the position was the subject of a quo warranto proceeding instituted by Rayos himself, thereby preempting the outcome of that case.  It was bad enough that the DILG assumed the power of control, it was worse when it made use of the power with evident bias and partiality.

As the entity exercising supervision over the Liga ng mga Barangay, the DILG’s authority over the Liga is limited to seeing to it that the rules are followed, but it cannot lay down such rules itself, nor does it have the discretion to modify or replace them.  In this particular case, the most that the DILG could do was review the acts of the incumbent officers of the Liga in the conduct of the elections to determine if they committed any violation of the Liga’s Constitution and By-laws and its implementing rules. If the National Liga Board and its officers had violated Liga rules, the DILG should have ordered the Liga to conduct another election in accordance with the Liga’s own rules, but not in obeisance to DILG-dictated guidelines.  Neither had the DILG the authority to remove the incumbent officers of the Liga and replace them, even temporarily, with unelectedLiga officers.

Like the local government units, the Liga ng mga Barangay is not subject to control by the Chief Executive or his alter ego.

In the Bito-Onon[94] case, this Court held that DILG Memorandum Circular No. 97-193, insofar as it authorized the filing of a petition for review of the decision of the Board of Election Supervisors (BES) with the regular courts in a post-proclamation electoral protest, involved the exercise of control as it in effect amended the guidelines already promulgated by the Liga.  The decision reads in part:

xxx.  Officers in control, lay down the rules in the doing of an act.  If they are not followed, it is discretionary on his part to order the act undone or redone by his subordinate or he may even decide to do it himself.  Supervision does not cover such authority.  Supervising officers merely see to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them.  If the rules are not observed, he may order the work done or re-done to conform for to the prescribed rules. He cannot prescribe his own manner the doing of the act.

x x x

xxx. The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of control, which the President does not have over the LIGA.  Although the DILG is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely “monitoring compliance by local government units of such issuances.  To monitor means to “watch, observe or check” and is compatible with the power of supervision of the DILG Secretary over local governments, which is limited to checking whether  the local government unit concerned or the officers thereof perform their duties as per statutory enactments.  Besides, any doubt as to the power of the DILG Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.[95]

In Taule,[96] the Court ruled that the Secretary of Local Government had no authority to pass upon the validity or regularity of the election of officers of katipunan ng mga barangay or barangay councils.  In that case, a protest was lodged before the Secretary of Local Government regarding several irregularities in, and seeking the nullification of, the election of officers of the Federation of Associations of Barangay Councils (FABC) of Catanduanes. Then Local Government Secretary Luis Santos issued a resolution nullifying the election of officers and ordered a new one to be conducted. The Court ruled:

Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that respondent Secretary has no authority to pass upon the validity or regularity of the officers of the katipunan.  To allow respondent Secretary to do so will give him more power than the law or the Constitution grants.  It will in effect give him control over local government officials for it will   permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be achieved.  In fact, his order that the new elections to be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local governments.[97]

All given, the Court is convinced that the assailed order was issued with grave abuse of discretion while the acts of the respondent Secretary, including DILG Memorandum Circulars No. 97-176 and No. 97-193, are unconstitutional and ultra vires, as they all entailed the conferment or exercise of control — a power which is denied by the Constitution even to the President.

WHEREFORE, the Petition is GRANTED.  The Order of the Regional Trial Court dated 04 August 1997 is SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. DILG Memorandum Circulars No. 97-176 and No. 97-193, are declared VOID for being unconstitutional and ultra vires.

No pronouncements as to costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Chico-Nazario, J., on leave.

G.R. No. L-23825      December 24, 1965

EMMANUEL PELAEZ, petitioner, vs.THE AUDITOR GENERAL, respondent.

Zulueta, Gonzales, Paculdo and Associates for petitioner.Office of the Solicitor General for respondent.

CONCEPCION, J.:

During the period from September 4 to October 29, 1964 the President of the Philippines, purporting to act pursuant to Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to 129; creating thirty-three (33) municipalities enumerated in the margin.1 Soon after the date last mentioned, or on November 10, 1964 petitioner Emmanuel Pelaez, as Vice President of the Philippines and as taxpayer, instituted the present special civil action, for a writ of prohibition with preliminary injunction, against the Auditor General, to restrain him, as well as his representatives and agents, from passing in audit any expenditure of public funds in implementation of said executive orders and/or any disbursement by said municipalities.

Petitioner alleges that said executive orders are null and void, upon the ground that said Section 68 has been impliedly repealed by Republic Act No. 2370 and constitutes an undue delegation of legislative power. Respondent maintains the contrary view and avers that the present action is premature and that not all proper parties — referring to the officials of the new political subdivisions in question — have been impleaded. Subsequently, the mayors of several municipalities adversely affected by the aforementioned executive orders — because the latter have taken away from the former the barrios composing the new political subdivisions — intervened in the case. Moreover, Attorneys Enrique M. Fernando and Emma Quisumbing-Fernando were allowed to and did appear asamici curiae.

The third paragraph of Section 3 of Republic Act No. 2370, reads:

Barrios shall not be created or their boundaries altered nor their names changed except under the provisions of this Act or by Act of Congress.

Pursuant to the first two (2) paragraphs of the same Section 3:

All barrios existing at the time of the passage of this Act shall come under the provisions hereof.

Upon petition of a majority of the voters in the areas affected, a new barrio may be created or the name of an existing one may be changed by the provincial board of the province, upon recommendation of the council of the municipality or municipalities in which the proposed barrio is stipulated. The recommendation of the municipal council shall be embodied in a resolution approved by at least two-thirds of the entire membership of the said council: Provided, however, That no new barrio may be created if its population is less than five hundred persons.

Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be created or their boundaries altered nor their names changed" except by Act of Congress or of the corresponding provincial board "upon petition of a majority of the voters in the areas affected" and the "recommendation of the council of the municipality or municipalities in which the proposed barrio is situated." Petitioner argues, accordingly: "If the President, under this new law, cannot even create a barrio, can he create a municipality which is composed of several barrios, since barrios are units of municipalities?"

Respondent answers in the affirmative, upon the theory that a new municipality can be created without creating new barrios, such as, by placing old barrios under the jurisdiction of the new municipality. This theory overlooks, however, the main import of the petitioner's argument, which is that the statutory denial of the presidential authority to create a new barrio implies a negation of the bigger power to create municipalities, each of which consists of several barrios. The cogency and force of this argument is too obvious to be denied or even questioned. Founded upon logic and experience, it cannot be offset except by a clear manifestation of the intent of Congress to the contrary, and no such manifestation, subsequent to the passage of Republic Act No. 2379, has been brought to our attention.

Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are based, provides:

The (Governor-General) President of the Philippines may by executive order define the boundary, or boundaries, of any province, subprovince, municipality, [township] municipal district, or other political subdivision, and increase or diminish the territory comprised therein, may divide any province into one or more subprovinces, separate any political division other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created, and may change the seat of government within any subdivision to such place therein as the public welfare may require: Provided, That the authorization of the (Philippine Legislature) Congress of the Philippines shall first be obtained whenever the boundary of any province or subprovince is to be defined or any province is to be divided into one or more subprovinces. When action by the (Governor-General) President of the Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any administrative officer or any judicial officer, the (Governor-General) President of the Philippines, with the recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the territory of the several officers affected and assign such officers to the new districts so formed.

Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable distribution of the funds and obligations of the divisions thereby affected shall be made in such manner as may be recommended by the (Insular Auditor) Auditor General and approved by the (Governor-General) President of the Philippines.

Respondent alleges that the power of the President to create municipalities under this section does not amount to an undue delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of Binañgonan (36 Phil. 547), which, he claims, has settled it. Such claim is untenable, for said case involved, not the creation of a new municipality, but a mere transfer of territory — from an already existing municipality (Cardona) to another municipality (Binañgonan), likewise, existing at the time of and prior to said transfer (See Gov't of the P.I. ex rel. Municipality of Cardona vs. Municipality, of Binañgonan [34 Phil. 518, 519-5201) — in consequence of the fixing and definition, pursuant to Act No. 1748, of the common boundaries of two municipalities.

It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities, may partake of an administrative nature — involving, as it does, the adoption of means and ways to carry into effect the law creating said municipalities — the authority to create municipal corporations is essentially legislative in nature. In the language of other courts, it is "strictly a legislative function" (State ex rel. Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or "solely and exclusively the exercise oflegislative power" (Udall vs. Severn, May 29, 1938, 79 P. 2d 347-349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs. Stewart, February 13, 1890, 23 Pac. 405, 409), "municipal corporations are purely the creatures of statutes."

Although1a Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself — it must set forth therein the policy to be executed, carried out or implemented by the delegate2 — and (b) fix a standard — the limits of which are sufficiently determinate or determinable — to which the delegate must conform in the performance of his functions.2a Indeed, without a statutory declaration of policy, the delegate would in effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority.2b Hence, he could thereby arrogate upon himself the power, not only to make the law, but, also — and this is worse — to unmake it, by adopting measures inconsistent with the end sought to be attained by the Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and, consequently, undermining the very foundation of our Republican system.

Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. In this connection, we do not overlook the fact that, under the last clause of the first sentence of Section 68, the President:

... may change the seat of the government within any subdivision to such place therein as the public welfare may require.

It is apparent, however, from the language of this clause, that the phrase "as the public welfare may require" qualified, not the clauses preceding the one just quoted, but only the place to which the seat of the government may be transferred. This fact becomes more apparent when we consider that said Section 68 was originally Section 1 of Act No. 1748,3 which provided that, "whenever in the judgment of the Governor-General the public welfare requires, he may, by executive order," effect the changes enumerated therein (as in said section 68), including the change of the seat of the government "to such place ... as the public interest requires." The opening statement of said Section 1 of Act No. 1748 —

which was not included in Section 68 of the Revised Administrative Code — governed the time at which, or the conditions under which, the powers therein conferred could be exercised; whereas the last part of the first sentence of said section referred exclusively to the place to which the seat of the government was to be transferred.

At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we assumed that the phrase "as the public welfare may require," in said Section 68, qualifies all other clauses thereof. It is true that in Calalang vs. Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had upheld "public welfare" and "public interest," respectively, as sufficient standards for a valid delegation of the authority to execute the law. But, the doctrine laid down in these cases — as all judicial pronouncements — must be construed in relation to the specific facts and issues involved therein, outside of which they do not constitute precedents and have no binding effect.4 The law construed in the Calalang case conferred upon the Director of Public Works, with the approval of the Secretary of Public Works and Communications, the power to issue rules and regulations topromote safe transit upon national roads and streets. Upon the other hand, the Rosenthal case referred to the authority of the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits for the sale ofspeculative securities. Both cases involved grants to administrative officers of powers related to the exercise of their administrative functions, calling for the determination of questions of fact.

Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of municipalities, is not an administrative function, but one which is essentially and eminently legislative in character. The question of whether or not "public interest" demands the exercise of such power is not one of fact. it is "purely a legislativequestion "(Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310-313, 315-318), or apolitical question (Udall vs. Severn, 79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly characterized it, "the question as to whether incorporation is for the best interest of the community in any case is emphatically a question of public policy and statecraft" (In re Village of North Milwaukee, 67 N.W. 1033, 1035-1037).

For this reason, courts of justice have annulled, as constituting undue delegation of legislative powers, state laws granting the judicial department, the power to determine whether certain territories should be annexed to a particular municipality (Udall vs. Severn, supra, 258-359); or vesting in a Commission the right to determine the plan and frame of government of proposed villages and what functions shall be exercised by the same, although the powers and functions of the village are specifically limited by statute (In re Municipal Charters, 86 Atl. 307-308); or conferring upon courts the authority to declare a given town or village incorporated, and designate its metes and bounds, upon petition of a majority of the taxable inhabitants thereof, setting forth the area desired to be included in such village (Territory ex rel Kelly vs. Stewart, 23 Pac. 405-409); or authorizing the territory of a town, containing a given area and population, to be incorporated as a town, on certain steps being taken by the inhabitants thereof and on certain determination by a court and subsequent vote of the inhabitants in favor thereof, insofar as the court is allowed to determine whether the lands embraced in the petition "ought justly" to be included in the village, and whether the interest of the inhabitants will be promoted by such incorporation, and to enlarge and diminish the boundaries of the proposed village "as justice may require" (In re Villages of North Milwaukee, 67 N.W. 1035-1037); or creating a Municipal Board of Control which shall determine whether or not the laying out, construction or operation of a toll road is in the "public interest" and whether the requirements of the law had been complied with, in which case the board shall enter an order creating a municipal corporation and fixing the name of the same (Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310).

Insofar as the validity of a delegation of power by Congress to the President is concerned, the case of Schechter Poultry Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one at bar. The Schechter case involved the constitutionality of Section 3 of the National Industrial Recovery Act authorizing the President of the United States to approve "codes of fair competition" submitted to him by one or more trade or industrial associations or corporations which "impose no inequitable restrictions on admission to membership therein and are truly representative," provided that such codes are not designed "to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them, and will tend to effectuate the policy" of said Act. The Federal Supreme Court held:

To summarize and conclude upon this point: Sec. 3 of the Recovery Act is without precedent. It supplies no standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, Sec. 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction and expansion described in Sec. 1. In view of the scope of that broad declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code making authority thus conferred is an unconstitutional delegation of legislative power.

If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually unfettered." and, consequently, tantamount to a delegation of legislative power, it is obvious that "public welfare," which has even a broader

connotation, leads to the same result. In fact, if the validity of the delegation of powers made in Section 68 were upheld, there would no longer be any legal impediment to a statutory grant of authority to the President to do anything which, in his opinion, may be required by public welfare or public interest. Such grant of authority would be a virtual abdication of the powers of Congress in favor of the Executive, and would bring about a total collapse of the democratic system established by our Constitution, which it is the special duty and privilege of this Court to uphold.

It may not be amiss to note that the executive orders in question were issued after the legislative bills for the creation of the municipalities involved in this case had failed to pass Congress. A better proof of the fact that the issuance of said executive orders entails the exercise of purely legislative functions can hardly be given.

Again, Section 10 (1) of Article VII of our fundamental law ordains:

The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed.

The power of control under this provision implies the right of the President to interfere in the exercise of such discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as well as to act in lieu of such officers. This power is denied by the Constitution to the Executive, insofar as local governments are concerned. With respect to the latter, the fundamental law permits him to wield no more authority than that of checking whether said local governments or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments, so long as the same or its officers act Within the scope of their authority. He may not enact an ordinance which the municipal council has failed or refused to pass, even if it had thereby violated a duty imposed thereto by law, although he may see to it that the corresponding provincial officials take appropriate disciplinary action therefor. Neither may he vote, set aside or annul an ordinance passed by said council within the scope of its jurisdiction, no matter how patently unwise it may be. He may not even suspend an elective official of a regular municipality or take any disciplinary action against him, except on appeal from a decision of the corresponding provincial board.5

Upon the other hand if the President could create a municipality, he could, in effect, remove any of its officials, by creating a new municipality and including therein the barrio in which the official concerned resides, for his office would thereby become vacant.6 Thus, by merely brandishing the power to create a new municipality (if he had it), without actually creating it, he could compel local officials to submit to his dictation, thereby, in effect, exercising over them the power of control denied to him by the Constitution.

Then, also, the power of control of the President over executive departments, bureaus or offices implies no morethan the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Manifestly, such control does not include the authority either to abolish an executive department or bureau, or to create a new one. As a consequence, the alleged power of the President to create municipal corporations would necessarily connote the exercise by him of an authority even greater than that of control which he has over the executive departments, bureaus or offices. In other words, Section 68 of the Revised Administrative Code does not merely fail to comply with the constitutional mandate above quoted. Instead of giving the President less power over local governments than that vested in him over the executive departments, bureaus or offices, it reverses the process and does the exact opposite, by conferring upon him more power over municipal corporations than that which he has over said executive departments, bureaus or offices.

In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said Section 68, as part of the Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by the subsequent adoption of the Constitution, in 1935, which is utterly incompatible and inconsistent with said statutory enactment.7

There are only two (2) other points left for consideration, namely, respondent's claim (a) that "not all the proper parties" — referring to the officers of the newly created municipalities — "have been impleaded in this case," and (b) that "the present petition is premature."

As regards the first point, suffice it to say that the records do not show, and the parties do not claim, that the officers of any of said municipalities have been appointed or elected and assumed office. At any rate, the Solicitor General, who has appeared on behalf of respondent Auditor General, is the officer authorized by law "to act and represent the Government of the Philippines, its offices and agents, in any official investigation, proceeding or matter requiring the services of a lawyer" (Section 1661, Revised Administrative Code), and, in connection with the creation of the aforementioned municipalities, which involves a political, not proprietary, function, said local officials, if any, are mere agents or

representatives of the national government. Their interest in the case at bar has, accordingly, been, in effect, duly represented.8

With respect to the second point, respondent alleges that he has not as yet acted on any of the executive order & in question and has not intimated how he would act in connection therewith. It is, however, a matter of common, public knowledge, subject to judicial cognizance, that the President has, for many years, issued executive orders creating municipal corporations and that the same have been organized and in actual operation, thus indicating, without peradventure of doubt, that the expenditures incidental thereto have been sanctioned, approved or passed in audit by the General Auditing Office and its officials. There is no reason to believe, therefore, that respondent would adopt a different policy as regards the new municipalities involved in this case, in the absence of an allegation to such effect, and none has been made by him.

WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and the respondent permanently restrained from passing in audit any expenditure of public funds in implementation of said Executive Orders or any disbursement by the municipalities above referred to. It is so ordered.

Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera and Dizon, JJ., concur.

Zaldivar, J., took no part.

G.R. No. L-32166 October 18, 1977THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs.HON. MAXIMO A. MACEREN CFI, Sta. Cruz, Laguna, JOSE BUENAVENTURA, GODOFREDO REYES, BENJAMIN REYES, NAZARIO AQUINO and CARLO DEL ROSARIO, accused-appellees.Office of the Solicitor General for appellant.Rustics F. de los Reyes, Jr. for appellees. AQUINO, J.:têñ.£îhqwâ£

This is a case involving the validity of a 1967 regulation, penalizing electro fishing in fresh water fisheries, promulgated by the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries under the old Fisheries Law and the law creating the Fisheries Commission.

On March 7, 1969 Jose Buenaventura, Godofredo Reyes, Benjamin Reyes, Nazario Aquino and Carlito del Rosario were charged by a Constabulary investigator in the municipal court of Sta. Cruz, Laguna with having violated Fisheries Administrative Order No. 84-1.

It was alleged in the complaint that the five accused in the morning of March 1, 1969 resorted to electro fishing in the waters of Barrio San Pablo Norte, Sta. Cruz by "using their own motor banca, equipped with motor; with a generator colored green with attached dynamo colored gray or somewhat white; and electrocuting device locally known as sensored with a somewhat webbed copper wire on the tip or other end of a bamboo pole with electric wire attachment which was attached to the dynamo direct and with the use of these devices or equipments catches fish thru electric current, which destroy any aquatic animals within its cuffed reach, to the detriment and prejudice of the populace" (Criminal Case No. 5429).

Upon motion of the accused, the municipal court quashed the complaint. The prosecution appealed. The Court of First Instance of Laguna affirmed the order of dismissal (Civil Case No. SC-36). The case is now before this Court on appeal by the prosecution under Republic Act No. 5440.

The lower court held that electro fishing cannot be penalize because electric current is not an obnoxious or poisonous substance as contemplated in section I I of the Fisheries Law and that it is not a substance at all but a form of energy conducted or transmitted by substances. The lower court further held that, since the law does not clearly prohibit electro fishing, the executive and judicial departments cannot consider it unlawful.

As legal background, it should be stated that section 11 of the Fisheries Law prohibits "the use of any obnoxious or poisonous substance" in fishing.

Section 76 of the same law punishes any person who uses an obnoxious or poisonous substance in fishing with a fine of not more than five hundred pesos nor more than five thousand, and by imprisonment for not less than six months nor more than five years.

It is noteworthy that the Fisheries Law does not expressly punish .electro fishing." Notwithstanding the silence of the law, the Secretary of Agriculture and Natural Resources, upon the recommendation of the Commissioner of Fisheries, promulgated Fisheries Administrative Order No. 84 (62 O.G. 1224), prohibiting electro fishing in all Philippine waters. The order is quoted below: ñé+.£ªwph!1

SUBJECT: PROHIBITING ELECTRO FISHING IN ALL WATERS ñé+.£ªwph!1

OF THE PHILIPPINES.

Pursuant to Section 4 of Act No. 4003, as amended, and Section 4 of R.A. No. 3512, the following rules and regulations regarding the prohibition of electro fishing in all waters of the Philippines are promulgated for the information and guidance of all concerned.ñé+.£ªwph!1

SECTION 1. — Definition. — Words and terms used in this Order 11 construed as follows:

(a) Philippine waters or territorial waters of the Philippines' includes all waters of the Philippine Archipelago, as defined in the t between the United States and Spain, dated respectively the tenth of December, eighteen hundred ninety eight and

the seventh of November, nineteen hundred. For the purpose of this order, rivers, lakes and other bodies of fresh waters are included.

(b) Electro Fishing. — Electro fishing is the catching of fish with the use of electric current. The equipment used are of many electrical devices which may be battery or generator-operated and from and available source of electric current.

(c) 'Persons' includes firm, corporation, association, agent or employee.

(d) 'Fish' includes other aquatic products.

SEC. 2. — Prohibition. — It shall be unlawful for any person to engage in electro fishing or to catch fish by the use of electric current in any portion of the Philippine waters except for research, educational and scientific purposes which must be covered by a permit issued by the Secretary of Agriculture and Natural Resources which shall be carried at all times.

SEC. 3. — Penalty. — Any violation of the provisions of this Administrative Order shall subject the offender to a fine of not exceeding five hundred pesos (P500.00) or imprisonment of not extending six (6) months or both at the discretion of the Court.

SEC. 4. — Repealing Provisions. — All administrative orders or parts thereof inconsistent with the provisions of this Administrative Order are hereby revoked.

SEC. 5. — Effectivity. — This Administrative Order shall take effect six (60) days after its publication in the Office Gazette.

On June 28, 1967 the Secretary of Agriculture and Natural Resources, upon the recommendation of the Fisheries Commission, issued Fisheries Administrative Order No. 84-1, amending section 2 of Administrative Order No. 84, by restricting the ban against electro fishing to fresh water fisheries (63 O.G. 9963).

Thus, the phrase "in any portion of the Philippine waters" found in section 2, was changed by the amendatory order to read as follows: "in fresh water fisheries in the Philippines, such as rivers, lakes, swamps, dams, irrigation canals and other bodies of fresh water."

The Court of First Instance and the prosecution (p. 11 of brief) assumed that electro fishing is punishable under section 83 of the Fisheries Law (not under section 76 thereof), which provides that any other violation of that law "or of any rules and regulations promulgated thereunder shall subject the offender to a fine of not more than two hundred pesos (P200), or in t for not more than six months, or both, in the discretion of the court."

That assumption is incorrect because 3 of the aforequoted Administrative Order No. 84 imposes a fm of not exceeding P500 on a person engaged in electro fishing, which amount the 83. It seems that the Department of Fisheries prescribed their own penalty for swift fishing which penalty is less than the severe penalty imposed in section 76 and which is not Identified to the at penalty imposed in section 83.

Had Administrative Order No. 84 adopted the fighter penalty prescribed in on 83, then the crime of electro fishing would be within the exclusive original jurisdiction of the inferior court (Sec. 44 [f], Judiciary Law; People vs. Ragasi, L-28663, September 22,

We have discussed this pre point, not raised in the briefs, because it is obvious that the crime of electro fishing which is punishable with a sum up to P500, falls within the concurrent original jurisdiction of the inferior courts and the Court of First instance (People vs. Nazareno, L-40037, April 30, 1976, 70 SCRA 531 and the cases cited therein).

And since the instant case was filed in the municipal court of Sta. Cruz, Laguna, a provincial capital, the order of d rendered by that municipal court was directly appealable to the Court, not to the Court of First Instance of Laguna (Sec. 45 and last par. of section 87 of the Judiciary Law; Esperat vs. Avila, L-25992, June 30, 1967, 20 SCRA 596).

It results that the Court of First Instance of Laguna had no appellate jurisdiction over the case. Its order affirming the municipal court's order of dismissal is void for lack of motion. This appeal shall be treated as a direct appeal from the municipal court to this Court. (See People vs. Del Rosario, 97 Phil. 67).

In this appeal, the prosecution argues that Administrative Orders Nos. 84 and 84-1 were not issued under section 11 of the Fisheries Law which, as indicated above, punishes fishing by means of an obnoxious or poisonous substance. This

contention is not well-taken because, as already stated, the Penal provision of Administrative Order No. 84 implies that electro fishing is penalized as a form of fishing by means of an obnoxious or poisonous substance under section 11.

The prosecution cites as the legal sanctions for the prohibition against electro fishing in fresh water fisheries (1) the rule-making power of the Department Secretary under section 4 of the Fisheries Law; (2) the function of the Commissioner of Fisheries to enforce the provisions of the Fisheries Law and the regulations Promulgated thereunder and to execute the rules and regulations consistent with the purpose for the creation of the Fisheries Commission and for the development of fisheries (Sec. 4[c] and [h] Republic Act No. 3512; (3) the declared national policy to encourage, Promote and conserve our fishing resources (Sec. 1, Republic Act No. 3512), and (4) section 83 of the Fisheries Law which provides that "any other violation of" the Fisheries Law or of any rules and regulations promulgated thereunder "shall subject the offender to a fine of not more than two hundred pesos, or imprisonment for not more than six months, or both, in the discretion of the court."

As already pointed out above, the prosecution's reference to section 83 is out of place because the penalty for electro fishing under Administrative order No. 84 is not the same as the penalty fixed in section 83.

We are of the opinion that the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries exceeded their authority in issuing Fisheries Administrative Orders Nos. 84 and 84-1 and that those orders are not warranted under the Fisheries Commission, Republic Act No. 3512.

The reason is that the Fisheries Law does not expressly prohibit electro fishing. As electro fishing is not banned under that law, the Secretary of Agriculture and Natural Resources and the Commissioner of Fisheries are powerless to penalize it. In other words, Administrative Orders Nos. 84 and 84-1, in penalizing electro fishing, are devoid of any legal basis.

Had the lawmaking body intended to punish electro fishing, a penal provision to that effect could have been easily embodied in the old Fisheries Law.

That law punishes (1) the use of obnoxious or poisonous substance, or explosive in fishing; (2) unlawful fishing in deepsea fisheries; (3) unlawful taking of marine molusca, (4) illegal taking of sponges; (5) failure of licensed fishermen to report the kind and quantity of fish caught, and (6) other violations.

Nowhere in that law is electro fishing specifically punished. Administrative Order No. 84, in punishing electro fishing, does not contemplate that such an offense fails within the category of "other violations" because, as already shown, the penalty for electro fishing is the penalty next lower to the penalty for fishing with the use of obnoxious or poisonous substances, fixed in section 76, and is not the same as the penalty for "other violations" of the law and regulations fixed in section 83 of the Fisheries Law.

The lawmaking body cannot delegate to an executive official the power to declare what acts should constitute an offense. It can authorize the issuance of regulations and the imposition of the penalty provided for in the law itself. (People vs. Exconde 101 Phil. 11 25, citing 11 Am. Jur. 965 on p. 11 32).

Originally, Administrative Order No. 84 punished electro fishing in all waters. Later, the ban against electro fishing was confined to fresh water fisheries. The amendment created the impression that electro fishing is not condemnable per se. It could be tolerated in marine waters. That circumstances strengthens the view that the old law does not eschew all forms of electro fishing.

However, at present, there is no more doubt that electro fishing is punishable under the Fisheries Law and that it cannot be penalized merely by executive revolution because Presidential Decree No. 704, which is a revision and consolidation of all laws and decrees affecting fishing and fisheries and which was promulgated on May 16, 1975 (71 O.G. 4269), expressly punishes electro fishing in fresh water and salt water areas.

That decree provides: ñé+.£ªwph!1SEC. 33. — Illegal fishing, dealing in illegally caught fish or fishery/aquatic products. — It shall he unlawful for any person to catch, take or gather or cause to be caught, taken or gathered fish or fishery/aquatic products in Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the use of electricity as defined in paragraphs (1), (m) and (d), respectively, of Section 3 hereof: ...

The decree Act No. 4003, as amended, Republic Acts Nos. 428, 3048, 3512 and 3586, Presidential Decrees Nos. 43, 534 and 553, and all , Acts, Executive Orders, rules and regulations or parts thereof inconsistent with it (Sec. 49, P. D. No. 704).

The inclusion in that decree of provisions defining and penalizing electro fishing is a clear recognition of the deficiency or silence on that point of the old Fisheries Law. It is an admission that a mere executive regulation is not legally adequate to penalize electro fishing.

Note that the definition of electro fishing, which is found in section 1 (c) of Fisheries Administrative Order No. 84 and which is not provided for the old Fisheries Law, is now found in section 3(d) of the decree. Note further that the decree penalty electro fishing by "imprisonment from two (2) to four (4) years", a punishment which is more severe than the penalty of a time of not excluding P500 or imprisonment of not more than six months or both fixed in section 3 of Fisheries Administrative Order No. 84.

An examination of the rule-making power of executive officials and administrative agencies and, in particular, of the Secretary of Agriculture and Natural Resources (now Secretary of Natural Resources) under the Fisheries Law sustains the view that he ex his authority in penalizing electro fishing by means of an administrative order.

Administrative agent are clothed with rule-making powers because the lawmaking body finds it impracticable, if not impossible, to anticipate and provide for the multifarious and complex situations that may be encountered in enforcing the law. All that is required is that the regulation should be germane to the defects and purposes of the law and that it should conform to the standards that the law prescribes (People vs. Exconde 101 Phil. 1125; Director of Forestry vs. Muñ;oz, L-24796, June 28, 1968, 23 SCRA 1183, 1198; Geukeko vs. Araneta, 102 Phil. 706, 712).

The lawmaking body cannot possibly provide for all the details in the enforcement of a particular statute (U.S. vs. Tupasi Molina, 29 Phil. 119, 125, citing U.S. vs. Grimaud 220 U.S. 506; Interprovincial Autobus Co., Inc. vs. Coll. of Internal Revenue, 98 Phil. 290, 295-6).

The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the nondeleption of legislative, powers. Administrative regulations or "subordinate legislation calculated to promote the public interest are necessary because of "the growing complexity of modem life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law" Calalang vs. Williams, 70 Phil. 726; People vs. Rosenthal and Osmeñ;a, 68 Phil. 328).

Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended. (U.S. vs. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos vs. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the d of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969, 29 SCRA 350).

The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it his been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (University of Santo Tomas vs. Board of Tax A 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid regulations, see of Internal Revenue vs. Villaflor 69 Phil. 319, Wise & Co. vs. Meer, 78 Phil. 655, 676; Del March vs. Phil. Veterans Administrative, L-27299, June 27, 1973, 51 SCRA 340, 349).

There is no question that the Secretary of Agriculture and Natural Resources has rule-making powers. Section 4 of the Fisheries law provides that the Secretary "shall from time to time issue instructions, orders, and regulations consistent" with that law, "as may be and proper to carry into effect the provisions thereof." That power is now vested in the Secretary of Natural Resources by on 7 of the Revised Fisheries law, Presidential December No. 704.

Section 4(h) of Republic Act No. 3512 empower the Co of Fisheries "to prepare and execute upon the approval of the Secretary of Agriculture and Natural Resources, forms instructions, rules and regulations consistent with the purpose" of that enactment "and for the development of fisheries."

Section 79(B) of the Revised Administrative Code provides that "the Department Head shall have the power to promulgate, whenever he may see fit do so, all rules, regulates, orders, memorandums, and other instructions, not contrary to law, to regulate the proper working and harmonious and efficient administration of each and all of the offices and dependencies of his Department, and for the strict enforcement and proper execution of the laws relative to matters under the jurisdiction of said Department; but none of said rules or orders shall prescribe penalties for the violation thereof, except as expressly authorized by law."

Administrative regulations issued by a Department Head in conformity with law have the force of law (Valerie vs. Secretary of culture and Natural Resources, 117 Phil. 729, 733; Antique Sawmills, Inc. vs. Zayco, L- 20051, May 30, 1966, 17 SCRA 316). As he exercises the rule-making power by delegation of the lawmaking body, it is a requisite that he should not transcend the bound demarcated by the statute for the exercise of that power; otherwise, he would be improperly exercising legislative power in his own right and not as a surrogate of the lawmaking body.

Article 7 of the Civil Code embodies the basic principle that administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution."

As noted by Justice Fernando, "except for constitutional officials who can trace their competence to act to the fundamental law itself, a public office must be in the statute relied upon a grant of power before he can exercise it." "department zeal may not be permitted to outrun the authority conferred by statute." (Radio Communications of the Philippines, Inc. vs. Santiago, L-29236, August 21, 1974, 58 SCRA 493, 496-8).

"Rules and regulations when promulgated in pursuance of the procedure or authority conferred upon the administrative agency by law, partake of the nature of a statute, and compliance therewith may be enforced by a penal sanction provided in the law. This is so because statutes are usually couched in general terms, after expressing the policy, purposes, objectives, remedies and sanctions intended by the legislature. The details and the manner of carrying out the law are oftentimes left to the administrative agency entrusted with its enforcement. In this sense, it has been said that rules and regulations are the product of a delegated power to create new or additional legal provisions that have the effect of law." The rule or regulation should be within the scope of the statutory authority granted by the legislature to the administrative agency. (Davis, Administrative Law, p. 194, 197, cited in Victories Milling Co., Inc. vs. Social Security Commission, 114 Phil. 555, 558).

In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulation cannot go beyond the terms and provisions of the basic law (People vs. Lim, 108 Phil. 1091).

This Court in its decision in the Lim case, supra, promulgated on July 26, 1960, called the attention of technical men in the executive departments, who draft rules and regulations, to the importance and necessity of closely following the legal provisions which they intend to implement so as to avoid any possible misunderstanding or confusion.

The rule is that the violation of a regulation prescribed by an executive officer of the government in conformity with and based upon a statute authorizing such regulation constitutes an offense and renders the offender liable to punishment in accordance with the provisions of the law (U.S. vs. Tupasi Molina, 29 Phil. 119, 124).

In other words, a violation or infringement of a rule or regulation validly issued can constitute a crime punishable as provided in the authorizing statute and by virtue of the latter (People vs. Exconde 101 Phil. 1125, 1132).

It has been held that "to declare what shall constitute a crime and how it shall be punished is a power vested exclusively in the legislature, and it may not be delegated to any other body or agency" (1 Am. Jur. 2nd, sec. 127, p. 938; Texas Co. vs. Montgomery, 73 F. Supp. 527).

In the instant case the regulation penalizing electro fishing is not strictly in accordance with the Fisheries Law, under which the regulation was issued, because the law itself does not expressly punish electro fishing.

The instant case is similar to People vs. Santos, 63 Phil. 300. The Santos case involves section 28 of Fish and Game Administrative Order No. 2 issued by the Secretary of Agriculture and Natural Resources pursuant to the aforementioned section 4 of the Fisheries Law.

Section 28 contains the proviso that a fishing boat not licensed under the Fisheries Law and under the said administrative order may fish within three kilometers of the shoreline of islands and reservations over which jurisdiction is exercised by naval and military reservations authorities of the United States only upon receiving written permission therefor, which permission may be granted by the Secretary upon recommendation of the military or naval authorities concerned. A violation of the proviso may be proceeded against under section 45 of the Federal Penal Code.

Augusto A. Santos was prosecuted under that provision in the Court of First Instance of Cavite for having caused his two fishing boats to fish, loiter and anchor without permission from the Secretary within three kilometers from the shoreline of Corrigidor Island.

This Court held that the Fisheries Law does not prohibit boats not subject to license from fishing within three kilometers of the shoreline of islands and reservations over which jurisdiction is exercised by naval and military authorities of the United States, without permission from the Secretary of Agriculture and Natural Resources upon recommendation of the military and naval authorities concerned.

As the said law does not penalize the act mentioned in section 28 of the administrative order, the promulgation of that provision by the Secretary "is equivalent to legislating on the matter, a power which has not been and cannot be delegated to him, it being expressly reserved" to the lawmaking body. "Such an act constitutes not only an excess of the regulatory power conferred upon the Secretary but also an exercise of a legislative power which he does not have, and therefore" the said provision "is null and void and without effect". Hence, the charge against Santos was dismiss.

A penal statute is strictly construed. While an administrative agency has the right to make ranks and regulations to carry into effect a law already enacted, that power should not be confused with the power to enact a criminal statute. An administrative agency can have only the administrative or policing powers expressly or by necessary implication conferred upon it. (Glustrom vs. State, 206 Ga. 734, 58 Second 2d 534; See 2 Am. Jr. 2nd 129-130).

Where the legislature has delegated to executive or administrative officers and boards authority to promulgate rules to carry out an express legislative purpose, the rules of administrative officers and boards, which have the effect of extending, or which conflict with the authority granting statute, do not represent a valid precise of the rule-making power but constitute an attempt by an administrative body to legislate (State vs. Miles, Wash. 2nd 322, 105 Pac. 2nd 51).

In a prosecution for a violation of an administrative order, it must clearly appear that the order is one which falls within the scope of the authority conferred upon the administrative body, and the order will be scrutinized with special care. (State vs. Miles supra).

The Miles case involved a statute which authorized the State Game Commission "to adopt, promulgate, amend and/or repeal, and enforce reasonable rules and regulations governing and/or prohibiting the taking of the various classes of game.

Under that statute, the Game Commission promulgated a rule that "it shall be unlawful to offer, pay or receive any reward, prize or compensation for the hunting, pursuing, taking, killing or displaying of any game animal, game bird or game fish or any part thereof."

Beryl S. Miles, the owner of a sporting goods store, regularly offered a ten-down cash prize to the person displaying the largest deer in his store during the open for hunting such game animals. For that act, he was charged with a violation of the rule Promulgated by the State Game Commission.

It was held that there was no statute penalizing the display of game. What the statute penalized was the taking of game. If the lawmaking body desired to prohibit the display of game, it could have readily said so. It was not lawful for the administrative board to extend or modify the statute. Hence, the indictment against Miles was quashed. The Miles case is similar to this case.

WHEREFORE, the lower court's decision of June 9, 1970 is set aside for lack of appellate jurisdiction and the order of dismissal rendered by the municipal court of Sta. Cruz, Laguna in Criminal Case No. 5429 is affirmed. Costs de oficio.SO ORDERED.Barredo, Concepcion, Jr., Santos and Guerrero, JJ., concur.1äwphï1.ñëtFernando and Antonio, JJ., took no part.Guerrero, J., was designated to sit in the Second Division.

G.R. No. 101279 August 6, 1992

PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner, vs.HON. RUBEN D. TORRES, as Secretary of the Department of Labor & Employment, and JOSE N. SARMIENTO, as Administrator of the PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION,respondents.

De Guzman, Meneses & Associates for petitioner.

 

GRIÑO-AQUINO, J.:

This petition for prohibition with temporary restraining order was filed by the Philippine Association of Service Exporters (PASEI, for short), to prohibit and enjoin the Secretary of the Department of Labor and Employment (DOLE) and the Administrator of the Philippine Overseas Employment Administration (or POEA) from enforcing and implementing DOLE Department Order No. 16, Series of 1991 and POEA Memorandum Circulars Nos. 30 and 37, Series of 1991, temporarily suspending the recruitment by private employment agencies of Filipino domestic helpers for Hong Kong and vesting in the DOLE, through the facilities of the POEA, the task of processing and deploying such workers.

PASEI is the largest national organization of private employment and recruitment agencies duly licensed and authorized by the POEA, to engaged in the business of obtaining overseas employment for Filipino landbased workers, including domestic helpers.

On June 1, 1991, as a result of published stories regarding the abuses suffered by Filipino housemaids employed in Hong Kong, DOLE Secretary Ruben D. Torres issued Department Order No. 16, Series of 1991, temporarily suspending the recruitment by private employment agencies of "Filipino domestic helpers going to Hong Kong" (p. 30, Rollo). The DOLE itself, through the POEA took over the business of deploying such Hong Kong-bound workers.

In view of the need to establish mechanisms that will enhance the protection for Filipino domestic helpers going to Hong Kong, the recruitment of the same by private employment agencies is hereby temporarily suspended effective 1 July 1991. As such, the DOLE through the facilities of the Philippine Overseas Employment Administration shall take over the processing and deployment of household workers bound for Hong Kong, subject to guidelines to be issued for said purpose.

In support of this policy, all DOLE Regional Directors and the Bureau of Local Employment's regional offices are likewise directed to coordinate with the POEA in maintaining a manpower pool of prospective domestic helpers to Hong Kong on a regional basis.

For compliance. (Emphasis ours; p. 30, Rollo.)

Pursuant to the above DOLE circular, the POEA issued Memorandum Circular No. 30, Series of 1991, dated July 10, 1991, providing GUIDELINES on the Government processing and deployment of Filipino domestic helpers to Hong Kong and the accreditation of Hong Kong recruitment agencies intending to hire Filipino domestic helpers.

Subject: Guidelines on the Temporary Government Processing and Deployment of Domestic Helpers to Hong Kong.

Pursuant to Department Order No. 16, series of 1991 and in order to operationalize the temporary government processing and deployment of domestic helpers (DHs) to Hong Kong resulting from the temporary suspension of recruitment by private employment agencies for said skill and host market, the following guidelines and mechanisms shall govern the implementation of said policy.

I. Creation of a joint POEA-OWWA Household Workers Placement Unit (HWPU)

An ad hoc, one stop Household Workers Placement Unit [or HWPU] under the supervision of the POEA shall take charge of the various operations involved in the Hong Kong-DH industry segment:

The HWPU shall have the following functions in coordination with appropriate units and other entities concerned:

1. Negotiations with and Accreditation of Hong Kong Recruitment Agencies

2. Manpower Pooling

3. Worker Training and Briefing

4. Processing and Deployment

5. Welfare Programs

II. Documentary Requirements and Other Conditions for Accreditation of Hong Kong Recruitment Agencies or Principals

Recruitment agencies in Hong Kong intending to hire Filipino DHs for their employers may negotiate with the HWPU in Manila directly or through the Philippine Labor Attache's Office in Hong Kong.

xxx xxx xxx

X. Interim Arrangement

All contracts stamped in Hong Kong as of June 30 shall continue to be processed by POEA until 31 July 1991 under the name of the Philippine agencies concerned. Thereafter, all contracts shall be processed with the HWPU.

Recruitment agencies in Hong Kong shall submit to the Philippine Consulate General in Hong kong a list of their accepted applicants in their pool within the last week of July. The last day of acceptance shall be July 31 which shall then be the basis of HWPU in accepting contracts for processing. After the exhaustion of their respective pools the only source of applicants will be the POEA manpower pool.

For strict compliance of all concerned. (pp. 31-35, Rollo.)

On August 1, 1991, the POEA Administrator also issued Memorandum Circular No. 37, Series of 1991, on the processing of employment contracts of domestic workers for Hong Kong.

TO: All Philippine and Hong Kong Agencies engaged in the recruitment of Domestic helpers for Hong Kong

Further to Memorandum Circular No. 30, series of 1991 pertaining to the government processing and deployment of domestic helpers (DHs) to Hong Kong, processing of employment contracts which have been attested by the Hong Kong Commissioner of Labor up to 30 June 1991 shall be processed by the POEA Employment Contracts Processing Branch up to 15 August 1991 only.

Effective 16 August 1991, all Hong Kong recruitment agent/s hiring DHs from the Philippines shall recruit under the new scheme which requires prior accreditation which the POEA.

Recruitment agencies in Hong Kong may apply for accreditation at the Office of the Labor Attache, Philippine Consulate General where a POEA team is posted until 31 August 1991. Thereafter, those who failed to have themselves accredited in Hong Kong may proceed to the POEA-OWWA Household Workers Placement Unit in Manila for accreditation before their recruitment and processing of DHs shall be allowed.

Recruitment agencies in Hong Kong who have some accepted applicants in their pool after the cut-off period shall submit this list of workers upon accreditation. Only those DHs in said list will be allowed processing outside of the HWPU manpower pool.

For strict compliance of all concerned. (Emphasis supplied, p. 36, Rollo.)

On September 2, 1991, the petitioner, PASEI, filed this petition for prohibition to annul the aforementioned DOLE and POEA circulars and to prohibit their implementation for the following reasons:

1. that the respondents acted with grave abuse of discretion and/or in excess of their rule-making authority in issuing said circulars;

2. that the assailed DOLE and POEA circulars are contrary to the Constitution, are unreasonable, unfair and oppressive; and

3. that the requirements of publication and filing with the Office of the National Administrative Register were not complied with.

There is no merit in the first and second grounds of the petition.

Article 36 of the Labor Code grants the Labor Secretary the power to restrict and regulate recruitment and placement activities.

Art. 36. Regulatory Power. — The Secretary of Labor shall have the power to restrict and regulate the recruitment and placement activities of all agencies within the coverage of this title [Regulation of Recruitment and Placement Activities] and is hereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions of this title. (Emphasis ours.)

On the other hand, the scope of the regulatory authority of the POEA, which was created by Executive Order No. 797 on May 1, 1982 to take over the functions of the Overseas Employment Development Board, the National Seamen Board, and the overseas employment functions of the Bureau of Employment Services, is broad and far-ranging for:

1. Among the functions inherited by the POEA from the defunct Bureau of Employment Services was the power and duty:

"2. To establish and maintain a registration and/or licensing system to regulate private sector participation in the recruitment and placement of workers, locally and overseas, . . ." (Art. 15, Labor Code, Emphasis supplied). (p. 13, Rollo.)

2. It assumed from the defunct Overseas Employment Development Board the power and duty:

3. To recruit and place workers for overseas employment of Filipino contract workers on a government to government arrangement and in such other sectors as policy may dictate . . . (Art. 17, Labor Code.) (p. 13, Rollo.)

3. From the National Seamen Board, the POEA took over:

2. To regulate and supervise the activities of agents or representatives of shipping companies in the hiring of seamen for overseas employment; and secure the best possible terms of employment for contract seamen workers and secure compliance therewith. (Art. 20, Labor Code.)

The vesture of quasi-legislative and quasi-judicial powers in administrative bodies is not unconstitutional, unreasonable and oppressive. It has been necessitated by "the growing complexity of the modern society" (Solid Homes, Inc. vs. Payawal, 177 SCRA 72, 79). More and more administrative bodies are necessary to help in the regulation of society's ramified activities. "Specialized in the particular field assigned to them, they can deal with the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice" (Ibid.).

It is noteworthy that the assailed circulars do not prohibit the petitioner from engaging in the recruitment and deployment of Filipino landbased workers for overseas employment. A careful reading of the challenged administrative issuances discloses that the same fall within the "administrative and policing powers expressly or by necessary implication conferred" upon the respondents (People vs. Maceren, 79 SCRA 450). The power to "restrict and regulate conferred by Article 36 of the Labor Code involves a grant of police power (City of Naga vs. Court of Appeals, 24 SCRA 898). To

"restrict" means "to confine, limit or stop" (p. 62, Rollo) and whereas the power to "regulate" means "the power to protect, foster, promote, preserve, and control with due regard for the interests, first and foremost, of the public, then of the utility and of its patrons" (Philippine Communications Satellite Corporation vs. Alcuaz, 180 SCRA 218).

The Solicitor General, in his Comment, aptly observed:

. . . Said Administrative Order [i.e., DOLE Administrative Order No. 16] merely restricted the scope or area of petitioner's business operations by excluding therefrom recruitment and deployment of domestic helpers for Hong Kong till after the establishment of the "mechanisms" that will enhance the protection of Filipino domestic helpers going to Hong Kong. In fine, other than the recruitment and deployment of Filipino domestic helpers for Hongkong, petitioner may still deploy other class of Filipino workers either for Hongkong and other countries and all other classes of Filipino workers for other countries.

Said administrative issuances, intended to curtail, if not to end, rampant violations of the rule against excessive collections of placement and documentation fees, travel fees and other charges committed by private employment agencies recruiting and deploying domestic helpers to Hongkong. [They are reasonable, valid and justified under the general welfare clause of the Constitution, since the recruitment and deployment business, as it is conducted today, is affected with public interest.

xxx xxx xxx

The alleged takeover [of the business of recruiting and placing Filipino domestic helpers in Hongkong] is merely a remedial measure, and expires after its purpose shall have been attained. This is evident from the tenor of Administrative Order No. 16 that recruitment of Filipino domestic helpers going to Hongkong by private employment agencies are hereby "temporarily suspended effective July 1, 1991."

The alleged takeover is limited in scope, being confined to recruitment of domestic helpers going to Hongkong only.

xxx xxx xxx

. . . the justification for the takeover of the processing and deploying of domestic helpers for Hongkong resulting from the restriction of the scope of petitioner's business is confined solely to the unscrupulous practice of private employment agencies victimizing applicants for employment as domestic helpers for Hongkong and not the whole recruitment business in the Philippines. (pp. 62-65,Rollo.)

The questioned circulars are therefore a valid exercise of the police power as delegated to the executive branch of Government.

Nevertheless, they are legally invalid, defective and unenforceable for lack of power publication and filing in the Office of the National Administrative Register as required in Article 2 of the Civil Code, Article 5 of the Labor Code and Sections 3(1) and 4, Chapter 2, Book VII of the Administrative Code of 1987 which provide:

Art. 2. Laws shall take effect after fifteen (15) days following the completion of their publication in the Official Gazatte, unless it is otherwise provided. . . . (Civil Code.)

Art. 5. Rules and Regulations. — The Department of Labor and other government agencies charged with the administration and enforcement of this Code or any of its parts shall promulgate the necessary implementing rules and regulations. Such rules and regulations shall become effective fifteen (15) days after announcement of their adoption in newspapers of general circulation. (Emphasis supplied, Labor Code, as amended.)

Sec. 3. Filing. — (1) Every agency shall file with the University of the Philippines Law Center, three (3) certified copies of every rule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months shall not thereafter be the basis of any sanction against any party or persons. (Emphasis supplied, Chapter 2, Book VII of the Administrative Code of 1987.)

Sec. 4. Effectivity. — In addition to other rule-making requirements provided by law not inconsistent with this Book, each rule shall become effective fifteen (15) days from the date of filing as above

provided unless a different date is fixed by law, or specified in the rule in cases of imminent danger to public health, safety and welfare, the existence of which must be expressed in a statement accompanying the rule. The agency shall take appropriate measures to make emergency rules known to persons who may be affected by them. (Emphasis supplied, Chapter 2, Book VII of the Administrative Code of 1987).

Once, more we advert to our ruling in Tañada vs. Tuvera, 146 SCRA 446 that:

. . . Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. (p. 447.)

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. (p. 448.)

We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the content of the laws. (p. 448.)

For lack of proper publication, the administrative circulars in question may not be enforced and implemented.

WHEREFORE, the writ of prohibition is GRANTED. The implementation of DOLE Department Order No. 16, Series of 1991, and POEA Memorandum Circulars Nos. 30 and 37, Series of 1991, by the public respondents is hereby SUSPENDED pending compliance with the statutory requirements of publication and filing under the aforementioned laws of the land.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

G.R. No. 112024 January 28, 1999

PHILIPPINE BANK OF COMMUNICATIONS, petitioner, vs.COMMISSIONER OF INTERNAL REVENUE, COURT OF TAX APPEALS and COURT OF APPEALS, respondent.

 

QUISUMBING, J.:

This petition for review assails the Resolution 1 of the Court of Appeals dated September 22, 1993 affirming the Decision 2 and a Resolution 3 of the Court Of Tax Appeals which denied the claims of the petitioner for tax refund and tax credits, and disposing as follows:

IN VIEW OF ALL, THE FOREGOING, the instant petition for review, is DENIED due course. The Decision of the Court of Tax Appeals dated May 20, 1993 and its resolution dated July 20, 1993, are hereby AFFIRMED in toto.

SO ORDERED. 4

The Court of Tax Appeals earlier ruled as follows:

WHEREFORE, Petitioner's claim for refund/tax credits of overpaid income tax for 1985 in the amount of P5,299,749.95 is hereby denied for having been filed beyond the reglementary period. The 1986 claim for refund amounting to P234,077.69 is likewise denied since petitioner has opted and in all likelihood automatically credited the same to the succeeding year. The petition for review is dismissed for lack of merit.

SO ORDERED. 5

The facts on record show the antecedent circumstances pertinent to this case.

Petitioner, Philippine Bank of Communications (PBCom), a commercial banking corporation duly organized under Philippine laws, filed its quarterly income tax returns for the first and second quarters of 1985, reported profits, and paid the total income tax of P5,016,954.00. The taxes due were settled by applying PBCom's tax credit memos and accordingly, the Bureau of Internal Revenue (BIR) issued Tax Debit Memo Nos. 0746-85 and 0747-85 for P3,401,701.00 and P1,615,253.00, respectively.

Subsequently, however, PBCom suffered losses so that when it filed its Annual Income Tax Returns for the year-ended December 31, 1986, the petitioner likewise reported a net loss of P14,129,602.00, and thus declared no tax payable for the year.

But during these two years, PBCom earned rental income from leased properties. The lessees withheld and remitted to the BIR withholding creditable taxes of P282,795.50 in 1985 and P234,077.69 in 1986.

On August 7, 1987, petitioner requested the Commissioner of Internal Revenue, among others, for a tax credit of P5,016,954.00 representing the overpayment of taxes in the first and second quarters of 1985.

Thereafter, on July 25, 1988, petitioner filed a claim for refund of creditable taxes withheld by their lessees from property rentals in 1985 for P282,795.50 and in 1986 for P234,077.69.

Pending the investigation of the respondent Commissioner of Internal Revenue, petitioner instituted a Petition for Review on November 18, 1988 before the Court of Tax Appeals (CTA). The petition was docketed as CTA Case No. 4309 entitled: "Philippine Bank of Communications vs. Commissioner of Internal Revenue."

The losses petitioner incurred as per the summary of petitioner's claims for refund and tax credit for 1985 and 1986, filed before the Court of Tax Appeals, are as follows:

1985 1986

——— ———

Net Income (Loss) (P25,317,288.00) (P14,129,602.00)

Tax Due NIL NIL

Quarterly tax.

Payments Made 5,016,954.00 —

Tax Withheld at Source 282,795.50 234,077.69

———————— ———————

Excess Tax Payments P5,299,749.50* P234,077.69

=============== =============

* CTA's decision reflects PBCom's 1985 tax claim as P5,299,749.95. A forty five centavo difference was noted.

On May 20, 1993, the CTA rendered a decision which, as stated on the outset, denied the request of petitioner for a tax refund or credit in the sum amount of P5,299,749.95, on the ground that it was filed beyond the two-year reglementary period provided for by law. The petitioner's claim for refund in 1986 amounting to P234,077.69 was likewise denied on the assumption that it was automatically credited by PBCom against its tax payment in the succeeding year.

On June 22, 1993, petitioner filed a Motion for Reconsideration of the CTA's decision but the same was denied due course for lack of merit. 6

Thereafter, PBCom filed a petition for review of said decision and resolution of the CTA with the Court of Appeals. However on September 22, 1993, the Court of Appeals affirmed in toto the CTA's resolution dated July 20, 1993. Hence this petition now before us.

The issues raised by the petitioner are:

I. Whether taxpayer PBCom — which relied in good faith on the formal assurances of BIR in RMC No. 7-85 and did not immediately file with the CTA a petition for review asking for the refund/tax credit of its 1985-86 excess quarterly income tax payments — can be prejudiced by the subsequent BIR rejection, applied retroactivity, of its assurances in RMC No. 7-85 that the prescriptive period for the refund/tax credit of excess quarterly income tax payments is not two years but ten (10). 7

II. Whether the Court of Appeals seriously erred in affirming the CTA decision which denied PBCom's claim for the refund of P234,077.69 income tax overpaid in 1986 on the mere speculation, without proof, that there were taxes due in 1987 and that PBCom availed of tax-crediting that year. 8

Simply stated, the main question is: Whether or not the Court of Appeals erred in denying the plea for tax refund or tax credits on the ground of prescription, despite petitioner's reliance on RMC No. 7-85, changing the prescriptive period of two years to ten years?

Petitioner argues that its claims for refund and tax credits are not yet barred by prescription relying on the applicability of Revenue Memorandum Circular No. 7-85 issued on April 1, 1985. The circular states that overpaid income taxes are not covered by the two-year prescriptive period under the tax Code and that taxpayers may claim refund or tax credits for the excess quarterly income tax with the BIR within ten (10) years under Article 1144 of the Civil Code. The pertinent portions of the circular reads:

REVENUE MEMORANDUM CIRCULAR NO. 7-85

SUBJECT: PROCESSING OF REFUND OR TAX CREDIT OF EXCESS CORPORATE INCOME TAX RESULTING FROM THE FILING OF THE FINAL ADJUSTMENT RETURN.

TO: All Internal Revenue Officers and Others Concerned.

Sec. 85 And 86 Of the National Internal Revenue Code provide:

xxx xxx xxx

The foregoing provisions are implemented by Section 7 of Revenue Regulations Nos. 10-77 which provide;

xxx xxx xxx

It has been observed, however, that because of the excess tax payments, corporations file claims for recovery of overpaid income tax with the Court of Tax Appeals within the two-year period from the date of payment, in accordance with sections 292 and 295 of the National Internal Revenue Code. It is obvious that the filing of the case in court is to preserve the judicial right of the corporation to claim the refund or tax credit.

It should he noted, however, that this is not a case of erroneously or illegally paid tax under the provisions of Sections 292 and 295 of the Tax Code.

In the above provision of the Regulations the corporation may request for the refund of the overpaid income tax or claim for automatic tax credit. To insure prompt action on corporate annual income tax

returns showing refundable amounts arising from overpaid quarterly income taxes, this Office has promulgated Revenue Memorandum Order No. 32-76 dated June 11, 1976, containing the procedure in processing said returns. Under these procedures, the returns are merely pre-audited which consist mainly of checking mathematical accuracy of the figures of the return. After which, the refund or tax credit is granted, and, this procedure was adopted to facilitate immediate action on cases like this.

In this regard, therefore, there is no need to file petitions for review in the Court of Tax Appeals in order to preserve the right to claim refund or tax credit the two year period. As already stated, actions hereon by the Bureau are immediate after only a cursory pre-audit of the income tax returns. Moreover, a taxpayer may recover from the Bureau of Internal Revenue excess income tax paid under the provisions of Section 86 of the Tax Code within 10 years from the date of payment considering that it is an obligation created by law (Article 1144 of the Civil Code). 9 (Emphasis supplied.)

Petitioner argues that the government is barred from asserting a position contrary to its declared circular if it would result to injustice to taxpayers. Citing ABS CBN Broadcasting Corporation vs. Court of Tax Appeals 10 petitioner claims that rulings or circulars promulgated by the Commissioner of Internal Revenue have no retroactive effect if it would be prejudicial to taxpayers, In ABS-CBN case, the Court held that the government is precluded from adopting a position inconsistent with one previously taken where injustice would result therefrom or where there has been a misrepresentation to the taxpayer.

Petitioner contends that Sec. 246 of the National Internal Revenue Code explicitly provides for this rules as follows:

Sec. 246 Non-retroactivity of rulings— Any revocation, modification or reversal of any of the rules and regulations promulgated in accordance with the preceding section or any of the rulings or circulars promulgated by the Commissioner shall not be given retroactive application if the revocation, modification or reversal will be prejudicial to the taxpayers except in the following cases:

a). where the taxpayer deliberately misstates or omits material facts from his return or in any document required of him by the Bureau of Internal Revenue;

b). where the facts subsequently gathered by the Bureau of Internal Revenue are materially different from the facts on which the ruling is based;

c). where the taxpayer acted in bad faith.

Respondent Commissioner of Internal Revenue, through Solicitor General, argues that the two-year prescriptive period for filing tax cases in court concerning income tax payments of Corporations is reckoned from the date of filing the Final Adjusted Income Tax Return, which is generally done on April 15 following the close of the calendar year. As precedents, respondent Commissioner cited cases which adhered to this principle, to wit ACCRA Investments Corp. vs. Court of Appeals, et al., 11 and Commissioner of Internal Revenue vs. TMX Sales, Inc., et al.. 12 Respondent Commissioner also states that since the Final Adjusted Income Tax Return of the petitioner for the taxable year 1985 was supposed to be filed on April 15, 1986, the latter had only until April 15, 1988 to seek relief from the court. Further, respondent Commissioner stresses that when the petitioner filed the case before the CTA on November 18, 1988, the same was filed beyond the time fixed by law, and such failure is fatal to petitioner's cause of action.

After a careful study of the records and applicable jurisprudence on the matter, we find that, contrary to the petitioner's contention, the relaxation of revenue regulations by RMC 7-85 is not warranted as it disregards the two-year prescriptive period set by law.

Basic is the principle that "taxes are the lifeblood of the nation." The primary purpose is to generate funds for the State to finance the needs of the citizenry and to advance the common weal. 13 Due process of law under the Constitution does not require judicial proceedings in tax cases. This must necessarily be so because it is upon taxation that the government chiefly relies to obtain the means to carry on its operations and it is of utmost importance that the modes adopted to enforce the collection of taxes levied should be summary and interfered with as little as possible. 14

From the same perspective, claims for refund or tax credit should be exercised within the time fixed by law because the BIR being an administrative body enforced to collect taxes, its functions should not be unduly delayed or hampered by incidental matters.

Sec. 230 of the National Internal Revenue Code (NIRC) of 1977 (now Sec. 229, NIRC of 1997) provides for the prescriptive period for filing a court proceeding for the recovery of tax erroneously or illegally collected, viz.:

Sec. 230. Recovery of tax erroneously or illegally collected. — No suit or proceeding shall be maintained in any court for the recovery of any national internal revenue tax hereafter alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Commissioner; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress.

In any case, no such suit or proceedings shall begun after the expiration of two years from the date of payment of the tax or penalty regardless of any supervening cause that may arise after payment;Provided however, That the Commissioner may, even without a written claim therefor, refund or credit any tax, where on the face of the return upon which payment was made, such payment appears clearly to have been erroneously paid. (Emphasis supplied)

The rule states that the taxpayer may file a claim for refund or credit with the Commissioner of Internal Revenue, within two (2) years after payment of tax, before any suit in CTA is commenced. The two-year prescriptive period provided, should be computed from the time of filing the Adjustment Return and final payment of the tax for the year.

In Commissioner of Internal Revenue vs. Philippine American Life Insurance Co., 15 this Court explained the application of Sec. 230 of 1977 NIRC, as follows:

Clearly, the prescriptive period of two years should commence to run only from the time that the refund is ascertained, which can only be determined after a final adjustment return is accomplished. In the present case, this date is April 16, 1984, and two years from this date would be April 16, 1986. . . . As we have earlier said in the TMX Sales case, Sections 68. 16 69, 17 and 70 18 on Quarterly Corporate Income Tax Payment and Section 321 should be considered in conjunction with it 19

When the Acting Commissioner of Internal Revenue issued RMC 7-85, changing the prescriptive period of two years to ten years on claims of excess quarterly income tax payments, such circular created a clear inconsistency with the provision of Sec. 230 of 1977 NIRC. In so doing, the BIR did not simply interpret the law; rather it legislated guidelines contrary to the statute passed by Congress.

It bears repeating that Revenue memorandum-circulars are considered administrative rulings (in the sense of more specific and less general interpretations of tax laws) which are issued from time to time by the Commissioner of Internal Revenue. It is widely accepted that the interpretation placed upon a statute by the executive officers, whose duty is to enforce it, is entitled to great respect by the courts. Nevertheless, such interpretation is not conclusive and will be ignored if judicially found to be erroneous. 20 Thus, courts will not countenance administrative issuances that override, instead of remaining consistent and in harmony with the law they seek to apply and implement. 21

In the case of People vs. Lim, 22 it was held that rules and regulations issued by administrative officials to implement a law cannot go beyond the terms and provisions of the latter.

Appellant contends that Section 2 of FAO No. 37-1 is void because it is not only inconsistent with but is contrary to the provisions and spirit of Act. No 4003 as amended, because whereas the prohibition prescribed in said Fisheries Act was for any single period of time not exceeding five years duration, FAO No 37-1 fixed no period, that is to say, it establishes an absolute ban for all time. This discrepancy between Act No. 4003 and FAO No. 37-1 was probably due to an oversight on the part of Secretary of Agriculture and Natural Resources. Of course, in case of discrepancy, the basic Act prevails, for the reason that the regulation or rule issued to implement a law cannot go beyond the terms and provisions of the latter. . . . In this connection, the attention of the technical men in the offices of Department Heads who draft rules and regulation is called to the importance and necessity of closely following the terms and provisions of the law which they intended to implement, this to avoid any possible misunderstanding or confusion as in the present case. 23

Further, fundamental is the rule that the State cannot be put in estoppel by the mistakes or errors of its officials or agents. 24 As pointed out by the respondent courts, the nullification of RMC No. 7-85 issued by the Acting Commissioner of Internal Revenue is an administrative interpretation which is not in harmony with Sec. 230 of 1977 NIRC. for being

contrary to the express provision of a statute. Hence, his interpretation could not be given weight for to do so would, in effect, amend the statute.

It is likewise argued that the Commissioner of Internal Revenue, after promulgating RMC No. 7-85, is estopped by the principle of non-retroactively of BIR rulings. Again We do not agree. The Memorandum Circular, stating that a taxpayer may recover the excess income tax paid within 10 years from date of payment because this is an obligation created by law, was issued by the Acting Commissioner of Internal Revenue. On the other hand, the decision, stating that the taxpayer should still file a claim for a refund or tax credit and corresponding petition fro review within the two-year prescription period, and that the lengthening of the period of limitation on refund from two to ten years would be adverse to public policy and run counter to the positive mandate of Sec. 230, NIRC, - was the ruling and judicial interpretation of the Court of Tax Appeals. Estoppel has no application in the case at bar because it was not the Commissioner of Internal Revenue who denied petitioner's claim of refund or tax credit. Rather, it was the Court of Tax Appeals who denied (albeit correctly) the claim and in effect, ruled that the RMC No. 7-85 issued by the Commissioner of Internal Revenue is an administrative interpretation which is out of harmony with or contrary to the express provision of a statute (specifically Sec. 230, NIRC), hence, cannot be given weight for to do so would in effect amend the statute. 25

Art. 8 of the Civil Code 26 recognizes judicial decisions, applying or interpreting statutes as part of the legal system of the country. But administrative decisions do not enjoy that level of recognition. A memorandum-circular of a bureau head could not operate to vest a taxpayer with shield against judicial action. For there are no vested rights to speak of respecting a wrong construction of the law by the administrative officials and such wrong interpretation could not place the Government in estoppel to correct or overrule the same. 27 Moreover, the non-retroactivity of rulings by the Commissioner of Internal Revenue is not applicable in this case because the nullity of RMC No. 7-85 was declared by respondent courts and not by the Commissioner of Internal Revenue. Lastly, it must be noted that, as repeatedly held by this Court, a claim for refund is in the nature of a claim for exemption and should be construed in strictissimi juris against the taxpayer. 28

On the second issue, the petitioner alleges that the Court of Appeals seriously erred in affirming CTA's decision denying its claim for refund of P234,077.69 (tax overpaid in 1986), based on mere speculation, without proof, that PBCom availed of the automatic tax credit in 1987.

Sec. 69 of the 1977 NIRC 29 (now Sec. 76 of the 1997 NIRC) provides that any excess of the total quarterly payments over the actual income tax computed in the adjustment or final corporate income tax return, shall either(a) be refunded to the corporation, or (b) may be credited against the estimated quarterly income tax liabilities for the quarters of the succeeding taxable year.

The corporation must signify in its annual corporate adjustment return (by marking the option box provided in the BIR form) its intention, whether to request for a refund or claim for an automatic tax credit for the succeeding taxable year. To ease the administration of tax collection, these remedies are in the alternative, and the choice of one precludes the other.

As stated by respondent Court of Appeals:

Finally, as to the claimed refund of income tax over-paid in 1986 — the Court of Tax Appeals, after examining the adjusted final corporate annual income tax return for taxable year 1986, found out that petitioner opted to apply for automatic tax credit. This was the basis used (vis-avis the fact that the 1987 annual corporate tax return was not offered by the petitioner as evidence) by the CTA in concluding that petitioner had indeed availed of and applied the automatic tax credit to the succeeding year, hence it can no longer ask for refund, as to [sic] the two remedies of refund and tax credit are alternative. 30

That the petitioner opted for an automatic tax credit in accordance with Sec. 69 of the 1977 NIRC, as specified in its 1986 Final Adjusted Income Tax Return, is a finding of fact which we must respect. Moreover, the 1987 annual corporate tax return of the petitioner was not offered as evidence to contovert said fact. Thus, we are bound by the findings of fact by respondent courts, there being no showing of gross error or abuse on their part to disturb our reliance thereon. 31

WHEREFORE, the, petition is hereby DENIED, The decision of the Court of Appeals appealed from is AFFIRMED, with COSTS against the petitioner.1âwphi1.nêt

SO ORDERED.

Bellosillo, Puno, Mendoza, and Buena, JJ., concur.

[G.R. No. 100481.  January 22, 1997]

PHILIPPINE INTERISLAND SHIPPING ASSOCIATION OF THE PHILIPPINES, CONFERENCE OF INTERISLAND SHIP-OWNERS AND OPERATORS, UNITED PETROLEUM TANKER OPERATORS ASSOCIATION OF THE PHILIPPINES, LIGHTERAGE ASSOCIATION OF THE PHILIPPINES and PILOTAGE INTEGRATED SERVICES CORPORATION, petitioners, vs. COURT OF APPEALS, UNITED HARBOR PILOTS' ASSOCIATION OF THE PHILIPPINES, INC. and MANILA PILOTS' ASSOCIATION, respondents.

[G.R. Nos. 103716-17.  January 22, 1997]

HON. PETE NICOMEDES PRADO, in his capacity as Secretary of Transportation and Communications and the PHILIPPINE PORTS AUTHORITY, petitioners, vs. COURT OF APPEALS, UNITED HARBOR PILOTS' ASSOCIATION OF THE PHILIPPINES, INC., respondents.

[G.R. No. 107720.  January 22, 1997]

HON. JESUS B. GARCIA, JR., in his capacity as Secretary of Transportation and Communications and Chairman of the PHILIPPINE PORTS AUTHORITY, COMMODORE ROGELIO A. DAYAN, in his capacity as General Manager of the Philippine Ports Authority, and SIMEON T. SILVA, JR., in his capacity as the South Harbor Manager, Philippine Ports Authority, petitioners, vs. HON. NAPOLEON R. FLOJO, in his capacity as the Presiding Judge of Branch 2, Regional Trial Court - Manila, UNITED HARBOR PILOTS' ASSOCIATION OF THE PHILIPPINES and the MANILA PILOTS' ASSOCIATION, respondents.

D E C I S I O N

MENDOZA, J.:

Private respondent United Harbor Pilots' Association of the Philippines, Inc. (UHPAP) is the umbrella organization of various groups rendering pilotage service in different ports of the Philippines.  The service consists of navigating a vessel from a specific point, usually about two (2) miles off shore, to an assigned area at the pier and vice versa.  When a vessel arrives, a harbor pilot takes over the ship from its captain to maneuver it to a berth in the port, and when it departs, the harbor pilot also maneuvers it up to a specific point off shore.  The setup is required by the fact that each port has peculiar topography with which a harbor pilot is presumed to be more familiar than a ship captain.

The Philippine Ports Authority (PPA) is the government agency which regulates pilotage. Pursuant to Presidential Decree No. 857, it has the power "to supervise, control, regulate . . . such services as are necessary in the ports vested in, or belonging to the Authority"[1] and to "control, regulate and supervise pilotage and the conduct of pilots in any Port District."[2] It also has the power "to impose, fix, prescribe, increase or decrease such rates, charges or fees. . . for the services rendered by the Authority or by any private organization within a Port District.”[3]

These cases arose out of the efforts of harbor pilots to secure enforcement of Executive Order No. 1088, which fixes the rates of pilotage service, and the equally determined efforts of the PPA and its officials, the herein petitioners, to block enforcement of the executive order, even as they promulgated their own orders which in the beginning fixed lower rates of pilotage and later left the matter to self determination by parties to a pilotage contract.

I.  THE FACTS

G.R. No. 103716

On February 3, 1986, shortly before the presidential elections, President Ferdinand E. Marcos, responding to the clamor of harbor pilots for an increase in pilotage rates, issued Executive Order No. 1088, PROVIDING FOR UNIFORM AND MODIFIED RATES FOR PILOTAGE SERVICES RENDERED TO FOREIGN AND COASTWISE VESSELS IN ALL PRIVATE AND PUBLIC PORTS. The executive order increased substantially the rates of the existing pilotage fees previously fixed by the PPA.

However, the PPA refused to enforce the executive order on the ground that it had been drawn hastily and without prior consultation; that its enforcement would create disorder in the ports as the operators and owners of the maritime vessels had expressed opposition to its implementation; and that the increase in pilotage, as mandated by it, was exorbitant and detrimental to port operations.[4]

The UHPAP then announced its intention to implement E.O. No. 1088 effective November 16, 1986. This in turn drew a warning from the PPA that disciplinary sanctions would be applied to those who would charge rates under E.O. No. 1088. The PPA instead issued Memorandum Circular No. 43-86, fixing pilotage fees at rates lower than those provided in E.O. No. 1088.

Consequently, the UHPAP filed on January 7, 1987 a complaint for injunction with the Regional Trial Court of Manila, against the then Minister of Transportation and Communications, Hernando Perez, and PPA General Manager, Primitivo S. Solis, Jr. It sought a writ of preliminary mandatory injunction for the immediate implementation of E.O. No. 1088, as well as a temporary restraining order to stop PPA officials from imposing disciplinary sanctions against UHPAP members charging rates in accordance with E.O. No. 1088.

The case, docketed as Civil Case No. 87-38913, was raffled to Branch 28 of the Regional Trial Court of Manila which issued a temporary restraining order, enjoining the PPA from threatening the UHPAP, its officers and its members with suspension and other disciplinary action for collecting pilotage fees pursuant to E.O. No. 1088.

On March 16, 1987, the Chamber of Maritime Industries of the Philippines, William Lines, Inc., Loadstar Shipping Co., Inc. and Delsen Transport Lines, Inc., after obtaining leave, filed a joint answer in intervention.

On February 26, 1988, while the case was pending, the PPA issued Administrative Order No. 02-88, entitled IMPLEMENTING GUIDELINES ON OPEN PILOTAGE SERVICE. The PPA announced in its order that it was leaving to the contracting parties, i.e., the shipping lines and the pilots, the fixing of mutually acceptable rates for pilotage services, thus abandoning the rates fixed by it (PPA) under Memorandum Circular No. 43-86, as well as those provided in E.O. No. 1088. The administrative order provided:

Section 3.  Terms/Conditions on Pilotage Service. — The shipping line or vessel's agent/representative and the harbor pilot/firm chosen by the former shall agree between themselves, among others, on what pilotage service shall be performed, the use of tugs and their rates, taking into consideration the circumstances stated in Section 12 of PPA AO No. 03-85, and such other conditions designed to ensure the safe movement of the vessel in pilotage areas/grounds.

The PPA then moved to dismiss the case, contending that the issuance of its order had rendered the case moot and academic and that consequently E.O. No. 1088 had ceased to be effective. The UHPAP opposed the motion. Together with the Manila Pilots' Association (MPA), it filed on May 25, 1988 a petition for certiorari and prohibition in the RTC-Manila, questioning the validity of A.O. No. 02-88. This petition was docketed as Civil Case No. 88-44726 (United Harbor Pilots' Association and Manila Pilots' Association v. Hon. Rainerio Reyes, as Acting Secretary of the Department of Transportation and Communications and Chairman of the Philippine Ports Authority (PPA) and Maximo Dumlao, Jr., as General Manager of the Philippine Ports Authority (PPA), et al.) and raffled to Branch 2 of RTC-Manila. The factual antecedents of this case are discussed in G.R. No. 100481 below.

Meanwhile, in Civil Case 87-38913, the court, without resolving the motion to dismiss filed by the PPA, rendered a decision[5] holding that A.O. No. 02-88 did not render the case moot and academic and that the PPA was under obligation to comply with E.O. No. 1088 because the order had the force of law which the PPA could not repeal.

The then Transportation Minister Hernando Perez and the PPA filed a petition for review. The petition was filed in this Court which later referred the case to the Court of Appeals where it was docketed as CA G.R. SP. No. 18072. On the other hand the intervenors appealed to the Court of Appeals where this case was docketed as CA G.R. No. 21590. The two cases were then consolidated.

In a decision rendered on October 4, 1991, the Twelfth Division [6] of the Court of Appeals affirmed the decision of the trial court, by dismissing CA G.R. No. 21590 and denying CA G.R. SP. No. 18072. Hence, this petition by the Secretary of Transportation and Communications and the PPA. The intervenor shipping lines did not appeal.

G.R. No. 100481

Meanwhile, in a petition for certiorari filed before RTC-Manila, Branch 2 (Civil Case No. 88-44726), the UHPAP and the MPA sought the annulment of A.O. No. 02-88, which in pertinent parts provided:

Section 1.  Statement of Policy. — It is hereby declared that the provision of pilotage in ports/harbors/areas defined as compulsory in Section 8 of PPA Administrative Order No. 03-85, entitled, "Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports" shall be open to all licensed harbor pilots/pilotage firms/associations appointed/accredited by this authority to perform pilotage service.

Section 2.  Persons Authorized to Render Pilotage. — The following individuals, persons or groups shall be appointed/accredited by this Authority to provide pilotage service:

a.  Harbor Pilots of the present Pilotage Associations of the different pilotage districts in the Philippines. Their probationary training as required under Section 31 of PPA AO No. 03-85 shall be undertaken by any member of said Association.

b. Members/employees of any partnership/corporation or association, including Filipino shipmasters/ captains of vessel (domestic/foreign) of Philippine Registry and individuals who meet the minimum qualifications and comply with the requirements prescribed in Sec. 29 of PPA AO No. 03-85, aforestated, and who are appointed by said firm or association and accredited as harbor pilots by this authority. New Harbor Pilots who wish to be appointed/accredited by PPA under the open pilotage system either as an individual pilot or as a member of any Harbor Pilot partnership/association shall be required to undergo a practical examination, in addition to the written examination given by the Philippine Coast Guard, prior to their appointment/ accreditation by this Authority.

The UHPAP and MPA, as petitioners below, contended (1) that A.O. No. 02-88 was issued without the benefit of a public hearing; (2) that E.O. No. 1088 had not been repealed by any other Executive Order or Presidential Decree and, therefore, should be given effect; and (3) that A.O. No. 02-88 contravened P.D. No. 857.

On August 21, 1989, the Philippine Interisland Shipping Association, Conference of Interisland Shipowners and Operators, United Petroleum Tanker Operators of the Philippines, Lighterage Association of the Philippines, and Pilotage Integrated Services Corp., were allowed to intervene.

On September 8, 1989, a writ of preliminary injunction was issued by the court, enjoining the PPA from implementing A.O. No. 02-88 and, on October 26, 1989, judgment was rendered in favor of the petitioners therein. The dispositive portion of the court's decision[7] reads:

WHEREFORE, for all of the foregoing, the petition is hereby granted.

1.  Respondents are hereby declared to have acted in excess of jurisdiction and with grave abuse of discretion amounting to lack of jurisdiction in approving Resolution No. 860 and in enacting Philippine Ports Authority Administrative Order No. 02-88, the subject of which is "Implementing Guidelines on Open Pilotage Service";

2.  Philippine Ports Authority Administrative Order No. 02-88 is declared null and void;

3.  The preliminary injunction issued on September 8, 1989 is made permanent; and

4.  Without costs.

SO ORDERED.

Respondents and the intervenors below filed a joint petition for certiorari in the Court of Appeals (CA G.R. SP No. 19570), assailing the decision of the trial court. But their petition was dismissed for lack of jurisdiction on the ground that the issue raised was purely legal.

The parties separately filed petitions for review before this Court. The first one, by the PPA and its officers, was docketed as G.R. No. 100109 (Hon. Pete Nicomedes Prado, Philippine Ports Authority and Commodore Rogelio Dayan v. United Harbor Pilots' Association of the Philippines and Manila Pilots' Association), while the second one, by the intervenors, was docketed as G.R. No. 100481 (Philippine Interisland Shipping Association of the Philippines, Conference of Interisland Ship Owners and Operators, United Petroleum Tanker Operators Association of the Philippines, Inc. v. The Court of Appeals, United Harbor Pilots' Association of the Philippines and Manila Pilots' Association.)

The petition filed by the government in G.R. No. 100109 was dismissed for failure of petitioners to show that the Court of Appeals committed a reversible error.[8] On the other hand, the petition of the intervenors in G.R. No. 100481 was given due course.

G.R. No. 107720

Following the denial of its petition in G.R. No. 100109, the PPA issued on July 31, 1992, Administrative Order No. 05-92, placing harbor pilots under the control of the PPA with respect to the scheduling and assignment of service of vessels. The PPA cited as justification "pilotage delays . . . under the set-up where private respondents (UHPAP & MPA) assign the pilots. Intentionally or otherwise, several vessels do not receive the pilotage service promptly, causing them operational disruptions and additional expenses/costs." [9]

Private respondents UHPAP and MPA viewed the matter differently. On October 28, 1992, they asked the RTC-Manila, Branch 2 which heard and decided Civil Case No. 88-44726 to cite PPA officials in contempt of court. On the same day, the trial court issued an order restraining the herein petitioners from implementing Administrative Order No. 05-92. However, the PPA proceeded to implement its order, prompting the UHPAP and MPA to move again to cite petitioners in contempt, even as they questioned the validity of A.O. No. 05-92. Accordingly the trial court issued another order on November 4, 1992, reiterating its previous order of October 28, 1992 to petitioners to refrain from implementing A.O. No. 05-92 pending resolution of the petitions.

Making a special appearance, petitioners questioned the jurisdiction of the court and moved for the dismissal of the petitions for contempt. Allegedly to prevent the disruption of pilotage services, petitioners created a special team of reserve pilots to take over the pilotage service in the event members of UHPAP/MPA refused to render pilotage services.

For the third time respondents moved to cite petitioners in contempt of court. Again petitioners questioned the court's jurisdiction and manifested that they were adopting their previous motion to dismiss petitions for contempt filed against them.

On November 17, 1992, the trial court denied the petitioners' motion and set the contempt petitions for hearing on November 19, 1992. Hence, this petition, which was docketed as G.R. No. 107720 (Hon. Jesus B. Garcia, Jr. in his capacity as Secretary of Transportation and Communications and Chairman of the Philippine Ports Authority, Commodore Rogelio A. Dayan, in his capacity as General Manager of the Philippine Ports Authority and Simeon T. Silva, Jr., in his capacity as the South Harbor Manager, Philippine Ports Authority v. Hon. Napoleon Flojo, in his capacity as the Presiding Judge of Branch 2, RTC, Manila, UHPAP and MPA).

Pending resolution of this case, the Court ordered the parties to maintain the status quo as of October 31, 1992.

II.  THE ISSUES AND THEIR DISPOSITION

The issues raised are:

I.      WHETHER OR NOT RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE CHALLENGED DECISION OF RTC-MANILA, BRANCH 41, WHICH RULED THAT:

(A)       CIVIL CASE NO. 87-38913 HAS NOT BECOME MOOT AND ACADEMIC WITH THE ISSUANCE OF ADMINISTRATIVE ORDER NO. 02-88; AND

(B)     HEREIN PETITIONERS ARE BOUND TO COMPLY WITH E.O. NO. 1088;

II.       WHETHER OR NOT THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN DISMISSING CA G.R. SP. NO. 19570 FOR LACK OF JURISDICTION?

III.      WHETHER OR NOT RESPONDENT JUDGE NAPOLEON FLOJO COMMITTED GRAVE ABUSE OF DISCRETION IN ASSUMING JURISDICTION OVER THE PETITIONS FOR CONTEMPT FILED BY PRIVATE RESPONDENTS AS A RESULT OF THE ISSUANCE OF A.O. NO. 05-92?

These issues will be discussed in seriatim.

A.  Whether Executive Order No. 1088 is Valid andPetitioners are Bound to Obey it

(G.R. Nos. 103716-17)

Executive Order No. 1088 reads:

EXECUTIVE ORDER No. 1088

PROVIDING FOR UNIFORM AND MODIFIED RATES FOR PILOTAGE SERVICES RENDERED TO FOREIGN AND COASTWISE VESSELS IN ALL PRIVATE OR PUBLIC PHILIPPINE PORTS.

WHEREAS, the United Harbor Pilots' Association of the Philippines has clamored for the rationalization of pilotage service charges, through the imposition of uniform and adjusted rates for foreign and coastwise vessels in all Philippine ports, whether public or private;

WHEREAS, the plea of the Association has been echoed by a great number of Members of Parliament and other persons and groups;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby direct and order:

Section 1.  The following shall be the rate of pilotage fees or charges based on tonnage for services rendered to both foreign and coastwise vessels;

For Foreign Vessels                                             Rate in US $ or                                                                                  its Peso

                                                                                  Equivalent

Less than        500GT                                                 $ 30.00                500GT         to             2,500GT             43.33

                    2,500GT         to             5,000GT             71.33                    5,000GT         to           10,000GT           133.67                  10,000GT         to           15,000GT           181.67                  15,000GT         to           20,000GT           247.00                  20,000GT         to           30,000GT           300.00                  30,000GT         to           40,000GT           416.67                  40,000GT         to           60,000GT           483.33                  60,000GT         to           80,000GT           550.00                  80,000GT         to         100,000GT           616.67                100,000GT         to         120,000GT           666.67                120,000GT         to         130,000GT           716.67

                130,000GT         to         140,000GT           766.67

Over 140,000 gross tonnage $0.05 or its peso equivalent every excess tonnage. Rate for docking and undocking anchorage, conduction and shifting other related special services is equal to 100%. Pilotage services shall be compulsory in government and private wharves or piers,

              For Coastwise Vessels:                       Regular

     100   and under   500           gross tons       P 41.70     500   and under   600           gross tons          55.60     600   and under 1,000          gross tons          69.60  1,000   and under 3,000          gross tons       139.20  3,000   and under 5,000          gross tons       300.00

  5,000   and over gross tons

SEC. 2.  With respect to foreign vessels, payment of pilotage services shall be made in dollars or in pesos at the prevailing exchange rate.

SEC. 3.  All orders, letters of instruction, rules, regulations and other issuances inconsistent with this Executive Order are hereby repealed or amended accordingly.

SEC. 4.  This Executive Order shall take effect immediately.

Done in the City of Manila, this 3rd day of February, in the year of our Lord, nineteen hundred and eighty-six.

                                                                          (Sgd.) FERDINAND E. MARCOS                                                                          President of the Philippines

By the President:

(Sgd.) JUAN C. TUVERAPresidential Executive Assistant

Petitioners contend that E.O. No. 1088 was merely an administrative issuance of then President Ferdinand E. Marcos and, as such, it could be superseded by an order of the PPA. They argue that to consider E.O. No. 1088 a statute would be to deprive the PPA of its power under its charter to fix pilotage rates.

The contention has no merit. The fixing of rates is essentially a legislative power.[10] Indeed, the great battle over the validity of the exercise of this power by administrative agencies was fought in the 1920s on the issue of undue delegation precisely because the power delegated was legislative. The growing complexity of modern society, the multiplication of the subjects of governmental regulations and the increased difficulty of administering the laws made the creation of administrative agencies and the delegation to them of legislative power necessary.[11]

There is no basis for petitioners' argument that rate fixing is merely an exercise of administrative power; that if President Marcos had power to revise the rates previously fixed by the PPA through the issuance of E.O. No. 1088, the PPA could in turn revise those fixed by the President, as the PPA actually did in A.O. No. 43-86, which fixed lower rates of pilotage fees, and even entirely left the fees to be paid for pilotage to the agreement of the parties to a contract. The orders previously issued by the PPA were in the nature of subordinate legislation, promulgated by it in the exercise of delegated power. As such these could only be amended or revised by law, as the President did by E.O. No. 1088.

It is not an answer to say that E.O. No. 1088 should not be considered a statute because that would imply the withdrawal of power from the PPA. What determines whether an act is a law or an administrative issuance is not its form but its nature. Here, as we have already said, the power to fix the rates of charges for services, including pilotage service, has always been regarded as legislative in character.

Nor is there any doubt of the power of the then President to fix rates. On February 3, 1986, when he issued E.O. No. 1088, President Marcos was authorized under Amendment No. 6 of the 1973 Constitution to exercise legislative power, just as he was under the original 1973 Constitution, when he issued P.D. NO. 857 which created the PPA, endowing it with the power to regulate pilotage service in Philippine ports. Although the power to fix rates for pilotage had been delegated to the PPA, it became necessary to rationalize the rates of charges fixed by it through the imposition of uniform rates. That is what the President did in promulgating E.O. No. 1088. As the President could delegate the ratemaking power to the PPA, so could he exercise it in specific instances without thereby withdrawing the power vested by P.D. No. 857, Section 20(a) in the PPA "to impose, fix, prescribe, increase or decrease such rates, charges or fees... for the services rendered by the Authority or by any private organization within a Port District."

It is worthy to note that E.O. No. 1088 provides for adjusted pilotage service rates without withdrawing the power of the PPA to impose, prescribe, increase or decrease rates, charges or fees. The reason is because E.O. NO. 1088 is not meant simply to fix new pilotage rates. Its legislative purpose is the "rationalization of pilotage service charges, through the imposition of uniform and adjusted rates for foreign and coastwise vessels in all Philippine ports."

The case presented is similar to the fixing of wages under the Wage Rationalization Act (R.A. No. 6727) whereby minimum wages are determined by Congress and provided by law, subject to revision by Wage Boards should later conditions warrant their revision. It cannot be denied that Congress may intervene anytime despite the existence of administrative agencies entrusted with wage-fixing powers, by virtue of the former's plenary power of legislation. When Congress does so, the result is not the withdrawal of the powers delegated to the Wage Boards but cooperative lawmaking in an area where initiative and expertise are required. The Court of Appeals is correct in holding that —

The power of the PPA to fix pilotage rates and its authority to regulate pilotage still remain notwithstanding the fact that a schedule for pilotage fees has already been prescribed by the questioned executive order. PPA is at liberty to fix new rates of pilotage subject only to the limitation that such new rates should not go below the rates fixed under E.O. 1088. The rationale behind the limitation is no different from what has been previously stated. Being a mere administrative

agency, PPA cannot validly issue orders or regulations that would have the effect of rendering nugatory the provisions of the legislative issuance such as those of the executive order in question.(emphasis supplied)

Petitioners refused to implement E.O. No. 1088 on the ground that it was issued without notice to the PPA and that it was nothing but a "political gimmick" resorted to by then President Marcos. This perception obviously stemmed from the fact that E.O. No. 1088 was issued shortly before the presidential elections in 1986.

But lack of notice to the PPA is not proof that the necessary factual basis for the order was wanting. To the contrary, the presumption is that the President had before him pertinent data on which he based the rates prescribed in his order. Nor is the fact that the order might have been issued to curry favor with the voters a reason for the PPA to refuse to enforce the order in question. It is not unusual for lawmakers to have in mind partisan political consideration in sponsoring legislation. Yet that is not a ground for invalidating a statute.

Moreover, an inquiry into legislative motivation is not proper since the only relevant question is whether in issuing it the President violated constitutional and statutory restrictions on his power. The PPA did not have any objection to the order based on constitutional ground. In fact the nearest to a challenge on constitutional grounds was that mounted not by the PPA but by the intervenors below which claimed that the rates fixed in E.O. NO. 1088 were exorbitant and unreasonable. However, both the trial court and the Court of Appeals overruled the objections and the intervenors apparently accepted the ruling because they did not appeal further to this Court.

There is, therefore, no legal basis for PPA's intransigence, after failing to get the new administration of President Aquino to revoke the order by issuing it own order in the form of A.O. NO. 02-88. It is noteworthy that if President Marcos had legislative power under Amendment No. 6 of the 1973 Constitution [12] so did President Aquino under the Provisional (Freedom) Constitution[13] who could, had she thought E.O. No. 1088 to be a mere "political gimmick," have just as easily revoked her predecessor's order. It is tempting to ask if the administrative agency would have shown the same act of defiance of the President's order had there been no change of administration. What this Court said in La Perla Cigar and Cigarette Factory v. Capapas," [14] mutatis mutandis may be applied to the cases at bar:

Was it within the powers of the then Collector Ang-angco to refuse to collect the duties that must be paid? That is the crucial point of inquiry. We hold that it was not.

Precisely, he had to give the above legal provisions, quite explicit in character, force and effect. His obligation was to collect the revenue for the government in accordance with existing legal provisions, executive agreements and executive orders certainly not excluded. He would not be living up to his official designation if he were permitted to act otherwise. He was not named Collector of Customs for nothing. . . .

Certainly, if the President himself were called upon to execute the laws faithfully, a Collector of Customs, himself a subordinate executive official, cannot be considered as exempt in any wise from such an obligation of fealty. Similarly, if the President cannot suspend the operation of any law, it would be presumptuous in the extreme for one in the position of then Collector Ang-angco to consider himself as possessed of such a prerogative. . . .

We conclude that E.O. No. 1088 is a valid statute and that the PPA is duty bound to comply with its provisions. The PPA may increase the rates but it may not decrease them below those mandated by E.O. No. 1088. Finally, the PPA cannot refuse to implement E.O. No. 1088 or alter it as it did in promulgating Memorandum Circular No. 43-86. Much less could the PPA abrogate the rates fixed and leave the fixing of rates for pilotage service to the contracting parties as it did through A. O. No. 02-88, Section 3. Theretofore the policy was one of governmental regulation of the pilotage business. By leaving the matter to the determination of the parties, the PPA jettisoned this policy and changed it to laissez-faire, something which only the legislature, or whoever is vested with lawmaking authority, could do.

B.  Whether the Court of Appeals had Jurisdiction over theAppeal of Intervenors from the Decision of theTrial Court Invalidating Administrative Order

No. 02-88 of the PPA(G.R. No. 100481)

The Court of Appeals dismissed the joint appeal of the government and the intervenors from the trial court's decision in Civil Case No. 88-44726 on the ground that the issues raised were purely legal questions.[15] The appellate court stated:

After a painstaking review of the records We resolved to dismiss the petition for lack of jurisdiction.

From the facts, it is clear that the main issue proffered by the appellant is whether or not the respondent Philippine Ports Authority could validly issue rules and regulations adopting the "open pilotage policy" pursuant to its charter (P.D. 857).

. . . .

It must be noted that while the court a quo had clearly recognized the intricate legal issue involved, it nevertheless decided it on the merits which apparently resolved only the procedural aspect that justified it in declaring the questioned order as null and void. While We recognize the basic requirements of due process, the same cannot take precedence in the case at bar in lieu of the fact that the resolution of the present case is purely a legal question.

Moreover, it appears that appellants in the court below had filed a manifestation and motion waiving their presentation of evidence. Instead, they opted to submit a comprehensive memorandum of the case on the ground that the pivotal issue raised in the petition below is purely legal in character. (p. 231, Records)

At this juncture, We are at a loss why appellants had elevated the present action before Us where at the outset they already noted that the issue is purely legal.

If in the case of Murillo v. Consul (UDK-9748, Resolution en banc, March 1, 1990) the Supreme Court laid down the rule that "if an appeal by notice of appeal is taken from the Regional Trial Court to the Court of Appeals, and in the latter Court, the appellant raised naught but issues of law, the appeal should be dismissed for lack of jurisdiction (page 5, Resolution in Murillo)," then with more reason where as in the case at bar public-appellants thru the Office of the Solicitor General in their memorandum manifested that the controversy has reference to the pure legal question of the validity of the questioned administrative order. Consequently, We have no other recourse but to dismiss the petition on the strength of these pronouncements.

As already stated, from this decision, both the government and the intervenors separately brought petitions for review to this Court. In G.R. No. 100109, the government's petition was dismissed for lack of showing that the appellate court committed reversible error. The dismissal of the government's petition goes far to sustain the dismissal of the intervenors' petition in G.R. No. 100481 for the review of the same decision of the Court of Appeals. After all, the intervenors' petition is based on substantially the same grounds as those stated in the government's petition. It is now settled that the dismissal of a petition for review on certiorari is an adjudication on the merits of a controversy.[16] Such dismissal can only mean that the Supreme Court agrees with the findings and conclusions of the Court of Appeals or that the decision sought to be reviewed is correct.[17]

It is significant to note that the Secretary of Transportation and Communications and the PPA, petitioners in G.R. No. 100109, have conceded the finality of the dismissal of their appeal. [18] Thus, the administrative policy, the validity of which herein petitioners seek to justify by their appeal, has already been abandoned by the very administrative agency which adopted it, with the result that the question of validity of A.O. No. 02-88 is now moot and academic.

C.  Whether the Trial Court has Jurisdiction to Hear and

Decide the Contempt Chargesagainst Petitioners(G.R. No. 107720)

As already noted, following the dismissal of the government's appeal in G.R. No. 100109, the PPA abandoned A.O. No. 02-88 which provided for "Open Pilotage System." But it subsequently promulgated Administrative Order No. 05-92, under which the PPA assumed the power of scheduling and assigning pilots to service vessels, allegedly regardless of whether the pilots assigned are or are not members of the UHPAP and the MPA which theretofore had been the exclusive agencies rendering pilotage service in Philippine ports. The UHPAP and the MPA saw the adoption of this system as a return to the "Open Pilotage System" and, therefore, a violation of the trial court's decision invalidating the "Open Pilotage System." They considered this to be a contempt of the trial court.

Petitioners moved to dismiss the motions for contempt against them. They contend that even if the motions were filed as incidents of Civil Case No. 88-44726, the RTC-Manila, Branch 2 did not have jurisdiction to hear them because the main case was no longer before the court and the fact was that the contempt citation was not an incident of the case, not even of its execution, but a new matter raising a new cause of action which must be litigated in a separate action, even as petitioners denied they had committed any contumacious act by the issuance of A.O. No. 05-92.

Private respondents maintained that their petitions were mere incidents of Civil Case No. 88-44726 and that the trial court has jurisdiction because in fact this Court had not yet remanded the case to the court a quo for execution of its

decision. Private respondents complain that petitioners are trying to circumvent the final and executory decision of the court in Civil Case No. 88-44726, through the issuance of A.O. No. 05-92.

As already noted, however, the decision of the trial court in Civil Case No. 88-44726 enjoined petitioners from implementing the so called "Open Pilotage System" embodied in A O. No. 02-88. If, as alleged, A.O. No. 05-92 is in substance a reenactment of A.O. No. 02-88, then there is basis for private respondents' invocation of the trial court's jurisdiction to punish for contempt.

Still it is argued that the trial court lost jurisdiction over Civil Case No. 887426, upon the perfection of their appeal from its decision. That is indeed true. "The appeal transfers the proceedings to the appellate court, and this last court becomes thereby charged with the authority to deal with contempt's committed after perfection of the appeal."[19] The trial court would have jurisdiction only in the event of an attempt to block execution of its decision and that would be after the remand of the case to the trial court.[20] Until then the trial court would have no jurisdiction to deal with alleged contemptuous acts.

The fly in the ointment, however, is that by accepting the dismissal of their petition for review in G.R. No. 100109, petitioners rendered execution of the decision of the trial court superfluous. Any attempt by them, therefore, to disobey the court's final injunction as embodied in its decision would be properly subject to punishment for contempt. Petitioners' contention that private respondents' complaint must be the subject of a separate action would nullify contempt proceedings as means of securing obedience to the lawful processes of a court. Petitioners' theory would reward ingenuity and cunning in devising orders which substantially are the same as the order previously prohibited by the court.

We hold that the trial court has jurisdiction to hear the motions for contempt filed by private respondent, subject to any valid defense which petitioners may interpose.

III.  JUDGMENT

WHEREFORE, the several petitions in these cases are DISMISSED.

SO ORDERED.

Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., Panganiban, andTorres, Jr., JJ., concur.

Regalado, J., no part – related to a counsel in G.R. No. 100481.

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

VALENTIN TIO doing business under the name and style of OMI ENTERPRISES, petitioner, vs.VIDEOGRAM REGULATORY BOARD, MINISTER OF FINANCE, METRO MANILA COMMISSION, CITY MAYOR and CITY TREASURER OF MANILA, respondents.

Nelson Y. Ng for petitioner.

The City Legal Officer for respondents City Mayor and City Treasurer.

 

MELENCIO-HERRERA, J.:

This petition was filed on September 1, 1986 by petitioner on his own behalf and purportedly on behalf of other videogram operators adversely affected. It assails the constitutionality of Presidential Decree No. 1987 entitled "An Act Creating the Videogram Regulatory Board" with broad powers to regulate and supervise the videogram industry (hereinafter briefly referred to as the BOARD). The Decree was promulgated on October 5, 1985 and took effect on April 10, 1986, fifteen (15) days after completion of its publication in the Official Gazette.

On November 5, 1985, a month after the promulgation of the abovementioned decree, Presidential Decree No. 1994 amended the National Internal Revenue Code providing, inter alia:

SEC. 134. Video Tapes. — There shall be collected on each processed video-tape cassette, ready for playback, regardless of length, an annual tax of five pesos; Provided, That locally manufactured or imported blank video tapes shall be subject to sales tax.

On October 23, 1986, the Greater Manila Theaters Association, Integrated Movie Producers, Importers and Distributors Association of the Philippines, and Philippine Motion Pictures Producers Association, hereinafter collectively referred to as the Intervenors, were permitted by the Court to intervene in the case, over petitioner's opposition, upon the allegations that intervention was necessary for the complete protection of their rights and that their "survival and very existence is threatened by the unregulated proliferation of film piracy." The Intervenors were thereafter allowed to file their Comment in Intervention.

The rationale behind the enactment of the DECREE, is set out in its preambular clauses as follows:

1. WHEREAS, the proliferation and unregulated circulation of videograms including, among others, videotapes, discs, cassettes or any technical improvement or variation thereof, have greatly prejudiced the operations of moviehouses and theaters, and have caused a sharp decline in theatrical attendance by at least forty percent (40%) and a tremendous drop in the collection of sales, contractor's specific, amusement and other taxes, thereby resulting in substantial losses estimated at P450 Million annually in government revenues;

2. WHEREAS, videogram(s) establishments collectively earn around P600 Million per annum from rentals, sales and disposition of videograms, and such earnings have not been subjected to tax, thereby depriving the Government of approximately P180 Million in taxes each year;

3. WHEREAS, the unregulated activities of videogram establishments have also affected the viability of the movie industry, particularly the more than 1,200 movie houses and theaters throughout the country, and occasioned industry-wide displacement and unemployment due to the shutdown of numerous moviehouses and theaters;

4. "WHEREAS, in order to ensure national economic recovery, it is imperative for the Government to create an environment conducive to growth and development of all business industries, including the movie industry which has an accumulated investment of about P3 Billion;

5. WHEREAS, proper taxation of the activities of videogram establishments will not only alleviate the dire financial condition of the movie industry upon which more than 75,000 families and 500,000 workers

depend for their livelihood, but also provide an additional source of revenue for the Government, and at the same time rationalize the heretofore uncontrolled distribution of videograms;

6. WHEREAS, the rampant and unregulated showing of obscene videogram features constitutes a clear and present danger to the moral and spiritual well-being of the youth, and impairs the mandate of the Constitution for the State to support the rearing of the youth for civic efficiency and the development of moral character and promote their physical, intellectual, and social well-being;

7. WHEREAS, civic-minded citizens and groups have called for remedial measures to curb these blatant malpractices which have flaunted our censorship and copyright laws;

8. WHEREAS, in the face of these grave emergencies corroding the moral values of the people and betraying the national economic recovery program, bold emergency measures must be adopted with dispatch; ... (Numbering of paragraphs supplied).

Petitioner's attack on the constitutionality of the DECREE rests on the following grounds:

1. Section 10 thereof, which imposes a tax of 30% on the gross receipts payable to the local government is a RIDER and the same is not germane to the subject matter thereof;

2. The tax imposed is harsh, confiscatory, oppressive and/or in unlawful restraint of trade in violation of the due process clause of the Constitution;

3. There is no factual nor legal basis for the exercise by the President of the vast powers conferred upon him by Amendment No. 6;

4. There is undue delegation of power and authority;

5. The Decree is an ex-post facto law; and

6. There is over regulation of the video industry as if it were a nuisance, which it is not.

We shall consider the foregoing objections in seriatim.

1. The Constitutional requirement that "every bill shall embrace only one subject which shall be expressed in the title thereof" 1 is sufficiently complied with if the title be comprehensive enough to include the general purpose which a statute seeks to achieve. It is not necessary that the title express each and every end that the statute wishes to accomplish. The requirement is satisfied if all the parts of the statute are related, and are germane to the subject matter expressed in the title, or as long as they are not inconsistent with or foreign to the general subject and title. 2 An act having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general object." 3 The rule also is that the constitutional requirement as to the title of a bill should not be so narrowly construed as to cripple or impede the power of legislation. 4 It should be given practical rather than technical construction. 5

Tested by the foregoing criteria, petitioner's contention that the tax provision of the DECREE is a rider is without merit. That section reads, inter alia:

Section 10. Tax on Sale, Lease or Disposition of Videograms. — Notwithstanding any provision of law to the contrary, the province shall collect a tax of thirty percent (30%) of the purchase price or rental rate, as the case may be, for every sale, lease or disposition of a videogram containing a reproduction of any motion picture or audiovisual program. Fifty percent (50%) of the proceeds of the tax collected shall accrue to the province, and the other fifty percent (50%) shall acrrue to the municipality where the tax is collected; PROVIDED, That in Metropolitan Manila, the tax shall be shared equally by the City/Municipality and the Metropolitan Manila Commission.

xxx xxx xxx

The foregoing provision is allied and germane to, and is reasonably necessary for the accomplishment of, the general object of the DECREE, which is the regulation of the video industry through the Videogram Regulatory Board as expressed in its title. The tax provision is not inconsistent with, nor foreign to that general subject and title. As a tool for regulation 6 it is simply one of the regulatory and control mechanisms scattered throughout the DECREE. The express purpose of the DECREE to include taxation of the video industry in order to regulate and rationalize the heretofore uncontrolled distribution of videograms is evident from Preambles 2 and 5, supra. Those preambles explain the motives of the lawmaker in presenting the measure. The title of the DECREE, which is the creation of the Videogram Regulatory Board, is comprehensive enough to include the purposes expressed in its Preamble and reasonably covers all its provisions. It is unnecessary to express all those objectives in the title or that the latter be an index to the body of the DECREE. 7

2. Petitioner also submits that the thirty percent (30%) tax imposed is harsh and oppressive, confiscatory, and in restraint of trade. However, it is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. 8 The power to impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. 9 In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. 10

The tax imposed by the DECREE is not only a regulatory but also a revenue measure prompted by the realization that earnings of videogram establishments of around P600 million per annum have not been subjected to tax, thereby depriving the Government of an additional source of revenue. It is an end-user tax, imposed on retailers for every videogram they make available for public viewing. It is similar to the 30% amusement tax imposed or borne by the movie industry which the theater-owners pay to the government, but which is passed on to the entire cost of the admission ticket, thus shifting the tax burden on the buying or the viewing public. It is a tax that is imposed uniformly on all videogram operators.

The levy of the 30% tax is for a public purpose. It was imposed primarily to answer the need for regulating the video industry, particularly because of the rampant film piracy, the flagrant violation of intellectual property rights, and the proliferation of pornographic video tapes. And while it was also an objective of the DECREE to protect the movie industry, the tax remains a valid imposition.

The public purpose of a tax may legally exist even if the motive which impelled the legislature to impose the tax was to favor one industry over another. 11

It is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been repeatedly held that "inequities which result from a singling out of one particular class for taxation or exemption infringe no constitutional limitation". 12 Taxation has been made the implement of the state's police power. 13

At bottom, the rate of tax is a matter better addressed to the taxing legislature.

3. Petitioner argues that there was no legal nor factual basis for the promulgation of the DECREE by the former President under Amendment No. 6 of the 1973 Constitution providing that "whenever in the judgment of the President ... , there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instructions, which shall form part of the law of the land."

In refutation, the Intervenors and the Solicitor General's Office aver that the 8th "whereas" clause sufficiently summarizes the justification in that grave emergencies corroding the moral values of the people and betraying the national economic recovery program necessitated bold emergency measures to be adopted with dispatch. Whatever the reasons "in the judgment" of the then President, considering that the issue of the validity of the exercise of legislative power under the said Amendment still pends resolution in several other cases, we reserve resolution of the question raised at the proper time.

4. Neither can it be successfully argued that the DECREE contains an undue delegation of legislative power. The grant in Section 11 of the DECREE of authority to the BOARD to "solicit the direct assistance of other agencies and units of the government and deputize, for a fixed and limited period, the heads or personnel of such agencies and units to perform enforcement functions for the Board" is not a delegation of the power to legislate but merely a conferment of authority or discretion as to its execution, enforcement, and implementation. "The true distinction is between the delegation of power

to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter, no valid objection can be made." 14 Besides, in the very language of the decree, the authority of the BOARD to solicit such assistance is for a "fixed and limited period" with the deputized agencies concerned being "subject to the direction and control of the BOARD." That the grant of such authority might be the source of graft and corruption would not stigmatize the DECREE as unconstitutional. Should the eventuality occur, the aggrieved parties will not be without adequate remedy in law.

5. The DECREE is not violative of the ex post facto principle. An ex post facto law is, among other categories, one which "alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense." It is petitioner's position that Section 15 of the DECREE in providing that:

All videogram establishments in the Philippines are hereby given a period of forty-five (45) days after the effectivity of this Decree within which to register with and secure a permit from the BOARD to engage in the videogram business and to register with the BOARD all their inventories of videograms, including videotapes, discs, cassettes or other technical improvements or variations thereof, before they could be sold, leased, or otherwise disposed of. Thereafter any videogram found in the possession of any person engaged in the videogram business without the required proof of registration by the BOARD, shall be prima facie evidence of violation of the Decree, whether the possession of such videogram be for private showing and/or public exhibition.

raises immediately a prima facie evidence of violation of the DECREE when the required proof of registration of any videogram cannot be presented and thus partakes of the nature of an ex post facto law.

The argument is untenable. As this Court held in the recent case of Vallarta vs. Court of Appeals, et al. 15

... it is now well settled that "there is no constitutional objection to the passage of a law providing that the presumption of innocence may be overcome by a contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of innocence" (People vs. Mingoa 92 Phil. 856 [1953] at 858-59, citing 1 COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS, 639-641). And the "legislature may enact that when certain facts have been proved that they shall be prima facie evidence of the existence of the guilt of the accused and shift the burden of proof provided there be a rational connection between the facts proved and the ultimate facts presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience". 16

Applied to the challenged provision, there is no question that there is a rational connection between the fact proved, which is non-registration, and the ultimate fact presumed which is violation of the DECREE, besides the fact that the prima facie presumption of violation of the DECREE attaches only after a forty-five-day period counted from its effectivity and is, therefore, neither retrospective in character.

6. We do not share petitioner's fears that the video industry is being over-regulated and being eased out of existence as if it were a nuisance. Being a relatively new industry, the need for its regulation was apparent. While the underlying objective of the DECREE is to protect the moribund movie industry, there is no question that public welfare is at bottom of its enactment, considering "the unfair competition posed by rampant film piracy; the erosion of the moral fiber of the viewing public brought about by the availability of unclassified and unreviewed video tapes containing pornographic films and films with brutally violent sequences; and losses in government revenues due to the drop in theatrical attendance, not to mention the fact that the activities of video establishments are virtually untaxed since mere payment of Mayor's permit and municipal license fees are required to engage in business. 17

The enactment of the Decree since April 10, 1986 has not brought about the "demise" of the video industry. On the contrary, video establishments are seen to have proliferated in many places notwithstanding the 30% tax imposed.

In the last analysis, what petitioner basically questions is the necessity, wisdom and expediency of the DECREE. These considerations, however, are primarily and exclusively a matter of legislative concern.

Only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there

ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on its wisdom cannot be sustained. 18

In fine, petitioner has not overcome the presumption of validity which attaches to a challenged statute. We find no clear violation of the Constitution which would justify us in pronouncing Presidential Decree No. 1987 as unconstitutional and void.

WHEREFORE, the instant Petition is hereby dismissed.

No costs.

SO ORDERED.

Teehankee, (C.J.), Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

G.R. No. 17122             February 27, 1922

THE UNITED STATES, plaintiff-appellee, vs.ANG TANG HO, defendant-appellant.

Williams & Ferrier for appellant.Acting Attorney-General Tuason for appellee.

JOHNS, J.:

At its special session of 1919, the Philippine Legislature passed Act No. 2868, entitled "An Act penalizing the monopoly and holding of, and speculation in, palay, rice, and corn under extraordinary circumstances, regulating the distribution and sale thereof, and authorizing the Governor-General, with the consent of the Council of State, to issue the necessary rules and regulations therefor, and making an appropriation for this purpose," the material provisions of which are as follows:

Section 1. The Governor-General is hereby authorized, whenever, for any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate, with the consent of the Council of State, temporary rules and emergency measures for carrying out the purpose of this Act, to wit:

(a) To prevent the monopoly and hoarding of, and speculation in, palay, rice or corn.

(b) To establish and maintain a government control of the distribution or sale of the commodities referred to or have such distribution or sale made by the Government itself.

(c) To fix, from time to time the quantities of palay rice, or corn that a company or individual may acquire, and the maximum sale price that the industrial or merchant may demand.

(d) . . .

SEC. 2. It shall be unlawful to destroy, limit, prevent or in any other manner obstruct the production or milling of palay, rice or corn for the purpose of raising the prices thereof; to corner or hoard said products as defined in section three of this Act; . . .

Section 3 defines what shall constitute a monopoly or hoarding of palay, rice or corn within the meaning of this Act, but does not specify the price of rice or define any basic for fixing the price.

SEC. 4. The violations of any of the provisions of this Act or of the regulations, orders and decrees promulgated in accordance therewith shall be punished by a fine of not more than five thousands pesos, or by imprisonment for not more than two years, or both, in the discretion of the court: Provided, That in the case of companies or corporations the manager or administrator shall be criminally liable.

SEC. 7. At any time that the Governor-General, with the consent of the Council of State, shall consider that the public interest requires the application of the provisions of this Act, he shall so declare by proclamation, and any provisions of other laws inconsistent herewith shall from then on be temporarily suspended.

Upon the cessation of the reasons for which such proclamation was issued, the Governor-General, with the consent of the Council of State, shall declare the application of this Act to have likewise terminated, and all laws temporarily suspended by virtue of the same shall again take effect, but such termination shall not prevent the prosecution of any proceedings or cause begun prior to such termination, nor the filing of any proceedings for an offense committed during the period covered by the Governor-General's proclamation.

August 1, 1919, the Governor-General issued a proclamation fixing the price at which rice should be sold.

August 8, 1919, a complaint was filed against the defendant, Ang Tang Ho, charging him with the sale of rice at an excessive price as follows:

The undersigned accuses Ang Tang Ho of a violation of Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August, 1919, in relation with the provisions of sections 1, 2 and 4 of Act No. 2868, committed as follows:

That on or about the 6th day of August, 1919, in the city of Manila, Philippine Islands, the said Ang Tang Ho, voluntarily, illegally and criminally sold to Pedro Trinidad, one ganta of rice at the price of eighty centavos (P.80), which is a price greater than that fixed by Executive Order No. 53 of the Governor-General of the Philippines, dated the 1st of August, 1919, under the authority of section 1 of Act No. 2868. Contrary to law.

Upon this charge, he was tried, found guilty and sentenced to five months' imprisonment and to pay a fine of P500, from which he appealed to this court, claiming that the lower court erred in finding Executive Order No. 53 of 1919, to be of any force and effect, in finding the accused guilty of the offense charged, and in imposing the sentence.

The official records show that the Act was to take effect on its approval; that it was approved July 30, 1919; that the Governor-General issued his proclamation on the 1st of August, 1919; and that the law was first published on the 13th of August, 1919; and that the proclamation itself was first published on the 20th of August, 1919.

The question here involves an analysis and construction of Act No. 2868, in so far as it authorizes the Governor-General to fix the price at which rice should be sold. It will be noted that section 1 authorizes the Governor-General, with the consent of the Council of State, for any cause resulting in an extraordinary rise in the price of palay, rice or corn, to issue and promulgate temporary rules and emergency measures for carrying out the purposes of the Act. By its very terms, the promulgation of temporary rules and emergency measures is left to the discretion of the Governor-General. The Legislature does not undertake to specify or define under what conditions or for what reasons the Governor-General shall issue the proclamation, but says that it may be issued "for any cause," and leaves the question as to what is "any cause" to the discretion of the Governor-General. The Act also says: "For any cause, conditions arise resulting in an extraordinary rise in the price of palay, rice or corn." The Legislature does not specify or define what is "an extraordinary rise." That is also left to the discretion of the Governor-General. The Act also says that the Governor-General, "with the consent of the Council of State," is authorized to issue and promulgate "temporary rules and emergency measures for carrying out the purposes of this Act." It does not specify or define what is a temporary rule or an emergency measure, or how long such temporary rules or emergency measures shall remain in force and effect, or when they shall take effect. That is to say, the Legislature itself has not in any manner specified or defined any basis for the order, but has left it to the sole judgement and discretion of the Governor-General to say what is or what is not "a cause," and what is or what is not "an extraordinary rise in the price of rice," and as to what is a temporary rule or an emergency measure for the carrying out the purposes of the Act. Under this state of facts, if the law is valid and the Governor-General issues a proclamation fixing the minimum price at which rice should be sold, any dealer who, with or without notice, sells rice at a higher price, is a criminal. There may not have been any cause, and the price may not have been extraordinary, and there may not have been an emergency, but, if the Governor-General found the existence of such facts and issued a proclamation, and rice is sold at any higher price, the seller commits a crime.

By the organic law of the Philippine Islands and the Constitution of the United States all powers are vested in the Legislative, Executive and Judiciary. It is the duty of the Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no authority to execute or construe the law, the Executive has no authority to make or construe the law, and the Judiciary has no power to make or execute the law. Subject to the Constitution only, the power of each branch is supreme within its own jurisdiction, and it is for the Judiciary only to say when any Act of the Legislature is or is not constitutional. Assuming, without deciding, that the Legislature itself has the power to fix the price at which rice is to be sold, can it delegate that power to another, and, if so, was that power legally delegated by Act No. 2868? In other words, does the Act delegate legislative power to the Governor-General? By the Organic Law, all Legislative power is vested in the Legislature, and the power conferred upon the Legislature to make laws cannot be delegated to the Governor-General, or any one else. The Legislature cannot delegate the legislative power to enact any law. If Act no 2868 is a law unto itself and within itself, and it does nothing more than to authorize the Governor-General to make rules and regulations to carry the law into effect, then the Legislature itself created the law. There is no delegation of power and it is valid. On the other hand, if the Act within itself does not define crime, and is not a law, and some legislative act remains to be done to make it a law or a crime, the doing of which is vested in the Governor-General, then the Act is a delegation of legislative power, is unconstitutional and void.

The Supreme Court of the United States in what is known as the Granger Cases (94 U.S., 183-187; 24 L. ed., 94), first laid down the rule:

Railroad companies are engaged in a public employment affecting the public interest and, under the decision in Munn vs. Ill., ante, 77, are subject to legislative control as to their rates of fare and freight unless protected by their charters.

The Illinois statute of Mar. 23, 1874, to establish reasonable maximum rates of charges for the transportation of freights and passengers on the different railroads of the State is not void as being repugnant to the Constitution of the United States or to that of the State.

It was there for the first time held in substance that a railroad was a public utility, and that, being a public utility, the State had power to establish reasonable maximum freight and passenger rates. This was followed by the State of Minnesota in enacting a similar law, providing for, and empowering, a railroad commission to hear and determine what was a just and reasonable rate. The constitutionality of this law was attacked and upheld by the Supreme Court of Minnesota in a learned and exhaustive opinion by Justice Mitchell, in the case of State vs. Chicago, Milwaukee & St. Paul ry. Co. (38 Minn., 281), in which the court held:

Regulations of railway tariffs — Conclusiveness of commission's tariffs. — Under Laws 1887, c. 10, sec. 8, the determination of the railroad and warehouse commission as to what are equal and reasonable fares and rates for the transportation of persons and property by a railway company is conclusive, and, in proceedings by mandamus to compel compliance with the tariff of rates recommended and published by them, no issue can be raised or inquiry had on that question.

Same — constitution — Delegation of power to commission. — The authority thus given to the commission to determine, in the exercise of their discretion and judgement, what are equal and reasonable rates, is not a delegation of legislative power.

It will be noted that the law creating the railroad commission expressly provides —

That all charges by any common carrier for the transportation of passengers and property shall be equal and reasonable.

With that as a basis for the law, power is then given to the railroad commission to investigate all the facts, to hear and determine what is a just and reasonable rate. Even then that law does not make the violation of the order of the commission a crime. The only remedy is a civil proceeding. It was there held —

That the legislative itself has the power to regulate railroad charges is now too well settled to require either argument or citation of authority.

The difference between the power to say what the law shall be, and the power to adopt rules and regulations, or to investigate and determine the facts, in order to carry into effect a law already passed, is apparent. The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and the conferring an authority or discretion to be exercised under and in pursuance of the law.

The legislature enacts that all freights rates and passenger fares should be just and reasonable. It had the undoubted power to fix these rates at whatever it deemed equal and reasonable.

They have not delegated to the commission any authority or discretion as to what the law shall be, — which would not be allowable, — but have merely conferred upon it an authority and discretion, to be exercised in the execution of the law, and under and in pursuance of it, which is entirely permissible. The legislature itself has passed upon the expediency of the law, and what is shall be. The commission is intrusted with no authority or discretion upon these questions. It can neither make nor unmake a single provision of law. It is merely charged with the administration of the law, and with no other power.

The delegation of legislative power was before the Supreme Court of Wisconsin in Dowling vs. Lancoshire Ins. Co. (92 Wis., 63). The opinion says:

"The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."

The act, in our judgment, wholly fails to provide definitely and clearly what the standard policy should contain, so that it could be put in use as a uniform policy required to take the place of all others, without the determination of the insurance commissioner in respect to maters involving the exercise of a legislative discretion that could not be delegated, and

without which the act could not possibly be put in use as an act in confirmity to which all fire insurance policies were required to be issued.

The result of all the cases on this subject is that a law must be complete, in all its terms and provisions, when it leaves the legislative branch of the government, and nothing must be left to the judgement of the electors or other appointee or delegate of the legislature, so that, in form and substance, it is a law in all its details in presenti, but which may be left to take effect in futuro, if necessary, upon the ascertainment of any prescribed fact or event.

The delegation of legislative power was before the Supreme Court in United States vs. Grimaud (220 U.S., 506; 55 L. ed., 563), where it was held that the rules and regulations of the Secretary of Agriculture as to a trespass on government land in a forest reserve were valid constitutional. The Act there provided that the Secretary of Agriculture ". . . may make such rules and regulations and establish such service as will insure the object of such reservations; namely, to regulate their occupancy and use, and to preserve the forests thereon from destruction;and any violation of the provisions of this act or such rules and regulations shall be punished, . . ."

The brief of the United States Solicitor-General says:

In refusing permits to use a forest reservation for stock grazing, except upon stated terms or in stated ways, the Secretary of Agriculture merely assert and enforces the proprietary right of the United States over land which it owns. The regulation of the Secretary, therefore, is not an exercise of legislative, or even of administrative, power; but is an ordinary and legitimate refusal of the landowner's authorized agent to allow person having no right in the land to use it as they will. The right of proprietary control is altogether different from governmental authority.

The opinion says:

From the beginning of the government, various acts have been passed conferring upon executive officers power to make rules and regulations, — not for the government of their departments, but for administering the laws which did govern. None of these statutes could confer legislative power. But when Congress had legislated power. But when Congress had legislated and indicated its will, it could give to those who were to act under such general provisions "power to fill up the details" by the establishment of administrative rules and regulations, the violation of which could be punished by fine or imprisonment fixed by Congress, or by penalties fixed by Congress, or measured by the injury done.

That "Congress cannot delegate legislative power is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution."

If, after the passage of the act and the promulgation of the rule, the defendants drove and grazed their sheep upon the reserve, in violation of the regulations, they were making an unlawful use of the government's property. In doing so they thereby made themselves liable to the penalty imposed by Congress.

The subjects as to which the Secretary can regulate are defined. The lands are set apart as a forest reserve. He is required to make provisions to protect them from depredations and from harmful uses. He is authorized 'to regulate the occupancy and use and to preserve the forests from destruction.' A violation of reasonable rules regulating the use and occupancy of the property is made a crime, not by the Secretary, but by Congress."

The above are leading cases in the United States on the question of delegating legislative power. It will be noted that in the "Granger Cases," it was held that a railroad company was a public corporation, and that a railroad was a public utility, and that, for such reasons, the legislature had the power to fix and determine just and reasonable rates for freight and passengers.

The Minnesota case held that, so long as the rates were just and reasonable, the legislature could delegate the power to ascertain the facts and determine from the facts what were just and reasonable rates,. and that in vesting the commission with such power was not a delegation of legislative power.

The Wisconsin case was a civil action founded upon a "Wisconsin standard policy of fire insurance," and the court held that "the act, . . . wholly fails to provide definitely and clearly what the standard policy should contain, so that it could be put in use as a uniform policy required to take the place of all others, without the determination of the insurance commissioner in respect to matters involving the exercise of a legislative discretion that could not be delegated."

The case of the United States Supreme Court, supra dealt with rules and regulations which were promulgated by the Secretary of Agriculture for Government land in the forest reserve.

These decisions hold that the legislative only can enact a law, and that it cannot delegate it legislative authority.

The line of cleavage between what is and what is not a delegation of legislative power is pointed out and clearly defined. As the Supreme Court of Wisconsin says:

That no part of the legislative power can be delegated by the legislature to any other department of the government, executive or judicial, is a fundamental principle in constitutional law, essential to the integrity and maintenance of the system of government established by the constitution.

Where an act is clothed with all the forms of law, and is complete in and of itself, it may be provided that it shall become operative only upon some certain act or event, or, in like manner, that its operation shall be suspended.

The legislature cannot delegate its power to make a 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 to depend.

The Village of Little Chute enacted an ordinance which provides:

All saloons in said village shall be closed at 11 o'clock P.M. each day and remain closed until 5 o'clock on the following morning, unless by special permission of the president.

Construing it in 136 Wis., 526; 128 A. S. R., 1100,1 the Supreme Court of that State says:

We regard the ordinance as void for two reasons; First, because it attempts to confer arbitrary power upon an executive officer, and allows him, in executing the ordinance, to make unjust and groundless discriminations among persons similarly situated; second, because the power to regulate saloons is a law-making power vested in the village board, which cannot be delegated. A legislative body cannot delegate to a mere administrative officer power to make a law, but it can make a law with provisions that it shall go into effect or be suspended in its operations upon the ascertainment of a fact or state of facts by an administrative officer or board. In the present case the ordinance by its terms gives power to the president to decide arbitrary, and in the exercise of his own discretion, when a saloon shall close. This is an attempt to vest legislative discretion in him, and cannot be sustained.

The legal principle involved there is squarely in point here.

It must be conceded that, after the passage of act No. 2868, and before any rules and regulations were promulgated by the Governor-General, a dealer in rice could sell it at any price, even at a peso per "ganta," and that he would not commit a crime, because there would be no law fixing the price of rice, and the sale of it at any price would not be a crime. That is to say, in the absence of a proclamation, it was not a crime to sell rice at any price. Hence, it must follow that, if the defendant committed a crime, it was because the Governor-General issued the proclamation. There was no act of the Legislature making it a crime to sell rice at any price, and without the proclamation, the sale of it at any price was to a crime.

The Executive order2 provides:

(5) The maximum selling price of palay, rice or corn is hereby fixed, for the time being as follows:

In Manila —

Palay at P6.75 per sack of 57½ kilos, or 29 centavos per ganta.

Rice at P15 per sack of 57½ kilos, or 63 centavos per ganta.

Corn at P8 per sack of 57½ kilos, or 34 centavos per ganta.

In the provinces producing palay, rice and corn, the maximum price shall be the Manila price less the cost of transportation from the source of supply and necessary handling expenses to the place of sale, to be determined by the provincial treasurers or their deputies.

In provinces, obtaining their supplies from Manila or other producing provinces, the maximum price shall be the authorized price at the place of supply or the Manila price as the case may be, plus the transportation cost, from the place of supply and the necessary handling expenses, to the place of sale, to be determined by the provincial treasurers or their deputies.

(6) Provincial treasurers and their deputies are hereby directed to communicate with, and execute all instructions emanating from the Director of Commerce and Industry, for the most effective and proper enforcement of the above regulations in their respective localities.

The law says that the Governor-General may fix "the maximum sale price that the industrial or merchant may demand." The law is a general law and not a local or special law.

The proclamation undertakes to fix one price for rice in Manila and other and different prices in other and different provinces in the Philippine Islands, and delegates the power to determine the other and different prices to provincial treasurers and their deputies. Here, then, you would have a delegation of legislative power to the Governor-General, and a delegation by him of that power to provincial treasurers and their deputies, who "are hereby directed to communicate with, and execute all instructions emanating from the Director of Commerce and Industry, for the most effective and proper enforcement of the above regulations in their respective localities." The issuance of the proclamation by the Governor-General was the exercise of the delegation of a delegated power, and was even a sub delegation of that power.

Assuming that it is valid, Act No. 2868 is a general law and does not authorize the Governor-General to fix one price of rice in Manila and another price in Iloilo. It only purports to authorize him to fix the price of rice in the Philippine Islands under a law, which is General and uniform, and not local or special. Under the terms of the law, the price of rice fixed in the proclamation must be the same all over the Islands. There cannot be one price at Manila and another at Iloilo. Again, it is a mater of common knowledge, and of which this court will take judicial notice, that there are many kinds of rice with different and corresponding market values, and that there is a wide range in the price, which varies with the grade and quality. Act No. 2868 makes no distinction in price for the grade or quality of the rice, and the proclamation, upon which the defendant was tried and convicted, fixes the selling price of rice in Manila "at P15 per sack of 57½ kilos, or 63 centavos per ganta," and is uniform as to all grades of rice, and says nothing about grade or quality. Again, it will be noted that the law is confined to palay, rice and corn. They are products of the Philippine Islands. Hemp, tobacco, coconut, chickens, eggs, and many other things are also products. Any law which single out palay, rice or corn from the numerous other products of the Islands is not general or uniform, but is a local or special law. If such a law is valid, then by the same principle, the Governor-General could be authorized by proclamation to fix the price of meat, eggs, chickens, coconut, hemp, and tobacco, or any other product of the Islands. In the very nature of things, all of that class of laws should be general and uniform. Otherwise, there would be an unjust discrimination of property rights, which, under the law, must be equal and inform. Act No. 2868 is nothing more than a floating law, which, in the discretion and by a proclamation of the Governor-General, makes it a floating crime to sell rice at a price in excess of the proclamation, without regard to grade or quality.

When Act No. 2868 is analyzed, it is the violation of the proclamation of the Governor-General which constitutes the crime. Without that proclamation, it was no crime to sell rice at any price. In other words, the Legislature left it to the sole discretion of the Governor-General to say what was and what was not "any cause" for enforcing the act, and what was and what was not "an extraordinary rise in the price of palay, rice or corn," and under certain undefined conditions to fix the price at which rice should be sold, without regard to grade or quality, also to say whether a proclamation should be issued, if so, when, and whether or not the law should be enforced, how long it should be enforced, and when the law should be suspended. The Legislature did not specify or define what was "any cause," or what was "an extraordinary rise in the price of rice, palay or corn," Neither did it specify or define the conditions upon which the proclamation should be issued. In the absence of the proclamation no crime was committed. The alleged sale was made a crime, if at all, because the Governor-General issued the proclamation. The act or proclamation does not say anything about the different grades or qualities of rice, and the defendant is charged with the sale "of one ganta of rice at the price of eighty centavos (P0.80) which is a price greater than that fixed by Executive order No. 53."

We are clearly of the opinion and hold that Act No. 2868, in so far as it undertakes to authorized the Governor-General in his discretion to issue a proclamation, fixing the price of rice, and to make the sale of rice in violation of the price of rice, and to make the sale of rice in violation of the proclamation a crime, is unconstitutional and void.

It may be urged that there was an extraordinary rise in the price of rice and profiteering, which worked a severe hardship on the poorer classes, and that an emergency existed, but the question here presented is the constitutionality of a particular portion of a statute, and none of such matters is an argument for, or against, its constitutionality.

The Constitution is something solid, permanent an substantial. Its stability protects the life, liberty and property rights of the rich and the poor alike, and that protection ought not to change with the wind or any emergency condition. The fundamental question involved in this case is the right of the people of the Philippine Islands to be and live under a republican form of government. We make the broad statement that no state or nation, living under republican form of government, under the terms and conditions specified in Act No. 2868, has ever enacted a law delegating the power to any one, to fix the price at which rice should be sold. That power can never be delegated under a republican form of government.

In the fixing of the price at which the defendant should sell his rice, the law was not dealing with government property. It was dealing with private property and private rights, which are sacred under the Constitution. If this law should be sustained, upon the same principle and for the same reason, the Legislature could authorize the Governor-General to fix the price of every product or commodity in the Philippine Islands, and empower him to make it a crime to sell any product at any other or different price.

It may be said that this was a war measure, and that for such reason the provision of the Constitution should be suspended. But the Stubborn fact remains that at all times the judicial power was in full force and effect, and that while that power was in force and effect, such a provision of the Constitution could not be, and was not, suspended even in times of war. It may be claimed that during the war, the United States Government undertook to, and did, fix the price at which wheat and flour should be bought and sold, and that is true. There, the United States had declared war, and at the time was at war with other nations, and it was a war measure, but it is also true that in doing so, and as a part of the same act, the United States commandeered all the wheat and flour, and took possession of it, either actual or constructive, and the government itself became the owner of the wheat and flour, and fixed the price to be paid for it. That is not this case. Here the rice sold was the personal and private property of the defendant, who sold it to one of his customers. The government had not bought and did not claim to own the rice, or have any interest in it, and at the time of the alleged sale, it was the personal, private property of the defendant. It may be that the law was passed in the interest of the public, but the members of this court have taken on solemn oath to uphold and defend the Constitution, and it ought not to be construed to meet the changing winds or emergency conditions. Again, we say that no state or nation under a republican form of government ever enacted a law authorizing any executive, under the conditions states, to fix the price at which a price person would sell his own rice, and make the broad statement that no decision of any court, on principle or by analogy, will ever be found which sustains the constitutionality of the particular portion of Act No. 2868 here in question. By the terms of the Organic Act, subject only to constitutional limitations, the power to legislate and enact laws is vested exclusively in the Legislative, which is elected by a direct vote of the people of the Philippine Islands. As to the question here involved, the authority of the Governor-General to fix the maximum price at which palay, rice and corn may be sold in the manner power in violation of the organic law.

This opinion is confined to the particular question here involved, which is the right of the Governor-General, upon the terms and conditions stated in the Act, to fix the price of rice and make it a crime to sell it at a higher price, and which holds that portions of the Act unconstitutional. It does not decide or undertake to construe the constitutionality of any of the remaining portions of the Act.

The judgment of the lower court is reversed, and the defendant discharged. So ordered.

Araullo, C.J., Johnson, Street and Ostrand, JJ., concur.Romualdez, J., concurs in the result.

G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner, vs.INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

 

CRUZ, J.:

The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike — but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age;

WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against inter-provincial movement of carabaos by transporting carabeef instead; and

WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby promulgate the following:

SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government, to be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos.

SECTION 2. This Executive Order shall take effect immediately.

Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty.

(SGD.) FERDINAND E. MARCOS

President

Republic of the Philippines

The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the carabaos and, since

they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2

The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has now come before us in this petition for review on certiorari.

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid because it is imposed without according the owner a right to be heard before a competent and impartial court as guaranteed by due process. He complains that the measure should not have been presumed, and so sustained, as constitutional. There is also a challenge to the improper exercise of the legislative power by the former President under Amendment No. 6 of the 1973 Constitution. 4

While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The question raised there was the necessity of the previous publication of the measure in the Official Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due process of law. In doing so, however, this Court did not, as contended by the Solicitor General, impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter.

This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide," final judgments and orders of lower courts in, among others, all cases involving the constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made in the first instance by these lower courts.

And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound or excise the affliction.

Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court.

The challenged measure is denominated an executive order but it is really presidential decree, promulgating a new rule instead of merely implementing an existing law. It was issued by President Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or was unable to act adequately on any matter that in his judgment required immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since the determination of the grounds was supposed to have been made by the President "in his judgment, " a phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question of due process.

It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10

The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require.

Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due process — and in so doing sums it all up — as nothing more and nothing less than "the embodiment of the sporting Idea of fair play." 12

When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause.

The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the question; the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is indispensable that the two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after examination of the problem not from one or the other perspective only but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power.

The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword.

This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the general welfare from a clear and present danger.

The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. The police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects him even before he is born and follows him still after he is dead — from the womb to beyond the tomb — in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the greater number.

It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the outset

the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect and preserve them.

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows:

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. ...

From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally, as distinguished from those of a particular class" and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be measurably and dangerously affected.

In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not unduly oppressive upon individuals, again following the above-cited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their improvident depletion.

But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on theslaughter of the carabaos but on their movement, providing that "no carabao regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The object of the prohibition escapes us. The reasonable connection between the means employed and the purpose sought to be achieved by the questioned measure is missing

We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant dead meat.

Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the property being transported is immediately impounded by the police and declared, by the measure itself, as forfeited to the government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out forthright. The measure struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of elementary fair play.

It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. 20 In the exceptional cases accepted, however. there is a justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem sought to be corrected and the urgency of the need to correct it.

In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment. The properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason why the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced not by the police only but by a court of justice, which alone would have had the authority to impose the prescribed penalty, and only after trial and conviction of the accused.

We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the questioned executive order. It is there authorized that the seized property shall "be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commissionmay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industrymay see fit, in the case of carabaos." (Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative powers.

To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional.

We agree with the respondent court, however, that the police station commander who confiscated the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all their superior authority, to question the order we now annul.

The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would never have reached us and the taking of his property under the challenged measure would have become afait accompli despite its invalidity. We commend him for his spirit. Without the present challenge, the matter would have ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the petitioner. No costs.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin Sarmiento and Cortes, JJ., concur.

Melencio-Herrera and Feliciano, JJ., are on leave.