Political Law Cases

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IN RE LAURETA (148 SCRA 382)

Before us are 1) Atty. Wenceslao Laureta's Motion for Reconsideration of the Per Curiam Resolution of this Court promulgated on March 12, 1987, finding him guilty of grave professional misconduct and suspending him indefinitely from the practice of law; and 2) Eva Maravilla-Ilustre's Motion for Reconsideration of the same Resolution holding her in contempt and ordering her to pay a fine of P1,000.00.

Essentially, Atty. Laureta maintains that the Order of suspension without hearing violated his right to life and due process of law and by reason thereof the Order is null and void; that the acts of misconduct imputed to him are without basis; that the charge against him that it was he who had circulated to the press copies of the Complaint filed before the Tanodbayan is unfounded such that, even in this Court's Resolution, his having distributed copies to the press is not stated positively; that the banner headline which appeared In the Daily Express is regrettable but that he was not responsible for such "misleading headline;" that he "did nothing of the sort" being fully conscious of his responsibilities as a law practitioner and officer of the Court; that as a former newspaperman, he would not have been satisfied with merely circulating copies of the Complaint to the press in envelopes where his name appears; "he himself would have written stories about the case in a manner that sells newspapers; even a series of juicy articles perhaps, something that would have further subjected the respondent justices to far worse publicity;" that, on the contrary, the press conference scheduled by Ilustre was cancelled through his efforts in order to prevent any further adverse publicity resulting from the filing of the complaint before the Tanodbayan; that, as a matter of fact, it was this Court's Resolution that was serialized in the Bulletin Today, which newspaper also made him the subject of a scathing editorial but that he "understands the cooperation because after all, the Court rendered a favorable judgment in the Bulletin union case last year;" that he considered it "below his dignity to plead for the chance to present his side" with the Editor, Mr. Ben Rodriguez, "a long-time personal friend" since he "can afford to be the sacrificial lamb if only to help the Honorable Court uphold its integrity;" that he was called by a reporter of DZRH and was asked to comment on the case filed before the Tanodbayan but that his remarks were confined to the filing of the case by Ilustre herself, and that the judgment of the trial Court had attained its finality long ago; that he is not Ilustre's counsel before the Tanodbayan and did not prepare the complaint filed before it, his professional services having been terminated upon the final dismissal of Ilustre's case before this Court; that similarities in the language and phraseology used in the Ilustre letters, in pleadings before this Court and before the Tanodbayan do not prove his authorship since other lawyers "even of a mediocre caliber" could very easily have reproduced them; that the discussions on the merits in the Per Curiam Resolution are "more properly addressed to the Tanodbayan, Justice Raul M. Gonzales being competent to deal with the case before him;" that he takes exception to the accusation that he has manifested lack of respect for and exposed to public ridicule the two highest Courts of the land, all he did having been to call attention to errors or injustice committed in the promulgation of judgments or orders; that he has "not authorized or assisted and/or abetted and could not have prevented the contemptuous

statements, conduct, acts and malicious charges of Eva Maravilla Ilustre who was no longer his client when these alleged acts were done; that "he is grateful to this Court for the reminder on the first duty of a lawyer which is to the Court and not to his client, a duty that he has always impressed upon his law students;" and finally, that "for the record, he is sorry for the adverse publicity generated by the filing of the complaint against the Justices before the Tanodbayan."

In her own Motion for Reconsideration, Eva Maravilla-Ilustre also raises as her main ground the alleged deprivation of her constitutional right to due process. She maintains that as contempt proceedings are commonly treated as criminal in nature, the mode of procedure and rules of evidence in criminal prosecution should be assimilated, as far as practicable, in this proceeding, and that she should be given every opportunity to present her side. Additionally, she states that, with some sympathetic lawyers, they made an "investigation" and learned that the Resolution of the First Division was arrived at without any deliberation by its members; that Court personnel were "tight-lipped about the matter, which is shrouded mystery" thereby prompting her to pursue a course which she thought was legal and peaceful; that there is nothing wrong in making public the manner of voting by the Justices, and it was for that reason that she addressed Identical letters to Associate Justices Andres Narvasa, Ameurfina M. Herrera, Isagani Cruz and Florentino Feliciano; that "if the lawyers of my opponents were not a Solicitor General, and member of the Supreme Court and a Division Chairman, respectively, the resolution of May 14, 1986 would not have aroused my suspicion;" that instead of taking the law into her own hands or joining any violent movement, she took the legitimate step of making a peaceful investigation into how her case was decided, and brought her grievance to the Tanodbayan "in exasperation" against those whom she felt had committed injustice against her "in an underhanded manner."

We deny reconsideration in both instances.

The argument premised on lack of hearing and due process, is not impressed with merit. What due process abhors is absolute lack of opportunity to be heard (Tajonera vs. Lamaroza, et al., 110 SCRA 438 [1981]). The word "hearing" does not necessarily connote a "trial-type" proceeding. In the show-cause Resolution of this Court, dated January 29, 1987, Atty. Laureta was given sufficient opportunity to inform this Court of the reasons why he should not be subjected to dispose action. His Answer, wherein he prayed that the action against him be dismissed, contained twenty-two (22) pages, double spaced. Eva Maravilla-Ilustre was also given a like opportunity to explain her statements, conduct, acts and charges against the Court and/or the official actions of the Justices concerned. Her Compliance Answer, wherein she prayed that the contempt proceeding against her be dismissed, contained nineteen (19) pages, double spaced. Both were afforded ample latitude to explain matters fully. Atty. Laureta denied having authored the letters written by Ilustre, his being her counsel before the Tanodbayan, his having circularized to the press copies of the complaint filed before said body, and his having committed acts unworthy of his profession. But the Court believed otherwise and found that those letters and the charges levelled against the Justices concerned, of themselves and by themselves, betray not only their malicious and

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contemptuous character, but also the lack of respect for the two highest Courts of the land, a complete obliviousness to the fundamental principle of separation of powers, and a wanton disregard of the cardinal doctrine of independence of the Judiciary. Res ipsa loquitur. Nothing more needed to have been said or proven. The necessity to conduct any further evidentially hearing was obviated (See People vs. Hon. Valenzuela, G.R. Nos. 63950-60, April 19, 1985, 135 SCRA 712). Atty. Laureta and Ilustre were given ample opportunity to be heard, and were, in fact, heard.

(1) In his Motion for Reconsideration, Atty. Laureta reiterates his allegations in his Answer to the show-cause Resolution that his professional services were terminated by Ilustre after the dismissal of the main petition by this Court; that he had nothing to do with the contemptuous letters to the individual Justices; and that he is not Ilustre's counsel before the Tanodbayan.

Significantly enough, however, copy of the Tanodbayan Resolution dismissing Ilustre's Complaint was furnished Atty. Laureta as "counsel for the complainant" at his address of record. Of note, too, is the fact that it was he who was following up the Complaint before the Tanodbayan and, after its dismissal, the Motion for Reconsideration of the Order of dismissal.

Of import, as well, is the report of Lorenzo C. Bardel, a process server of this Court, that after having failed to serve copy of the Per Curiam Resolution of March 12, 1987 of this Court on Ilustre personally at her address of record, "101 F. Manalo St., Cubao, Quezon City," having been informed that she is 6 not a resident of the place," he proceeded to the residence of Atty. Laureta where the latter's wife "voluntarily received the two copies of decision for her husband and for Ms. Maravina-Ilustre" (p. 670, Rollo, Vol. 11).

That Ilustre subsequently received copy of this Court's Resolution delivered to Mrs. Laureta is shown by the fact that she filed, as of March 27, 1987, a "Petition for Extension of Time to file Motion for Reconsideration" and subsequently the Motion for Reconsideration. In that Petition Ilustre acknowledged receipt of the Resolution on March 12, 1987, the very same date Mrs. Laureta received copy thereof. If, indeed, the lawyer-client relationship between her husband and Ilustre had been allegedly completely severed, all Mrs. Laureta had to do was to return to the Sheriff the copy intended for Ilustre. As it was, however, service on Atty. Laureta proved to be service on Ilustre as well. The close tie- up between the corespondents is heightened by the fact that three process servers of this Court failed to serve copy of this Court's Per Curiam Resolution on Ilustre personally.

Noteworthy, as well, is that by Atty. Laureta's own admission, he was the one called by a "reporter" of DZRH to comment on the Ilustre charges before the Tanodbayan. If, in fact, he had nothing to do with the complaint, he would not have been pinpointed at all. And if his disclaimer were the truth, the logical step for him to have taken was to refer the caller to the lawyer/s allegedly assisting Ilustre, at the very least, out of elementary courtesy and propriety. But he did nothing of the sort. " He gave his comment with alacrity.

The impudence and lack of respect of Atty. Laureta for this Court again surfaces when he asserts in his Motion for Reconsideration that he "understands the cooperation" of the Bulletin Today as manifested in the serialized publication of the Per Curiam Resolution of this Court and his being subjected to a scathing editorial by the same newspaper "because after all, the Court rendered a favorable judgment in the Bulletin union case last year." The malice lurking in that statement is most unbecoming of an officer of the Court and is an added reason for denying reconsideration.

Further, Atty. Laureta stubbornly contends that discussions on the merits in the Court's Per Curiam Resolution are more properly addressed to the Tanodbayan, forgetting, however, his own discourse on the merits in his Answer to this Court's Resolution dated January 29, 1987. He thus incorrigibly insists on subordinating the Judiciary to the executive notwithstanding the categorical pronouncement in the Per Curiam Resolution of March 12, 1987, that Article 204 of the Revised Penal Code has no application to the members of a collegiate Court; that a charge of violation of the Anti-Graft and Corrupt Practices Act on the ground that a collective decision is "unjust" cannot prosper; plus the clear and extended dissertation in the same Per Curiam Resolution on the fundamental principle of separation of powers and of checks and balances, pursuant to which it is this Court "entrusted exclusively with the judicial power to adjudicate with finality all justifiable disputes, public and private. No other department or agency may pass upon its judgments or declare them 'unjust' upon controlling and irresistible reasons of public policy and of sound practice."

Atty. Laureta's protestations that he has done his best to protect and uphold the dignity of this Court are belied by environmental facts and circumstances. His apologetic stance for the "adverse publicity" generated by the filing of the charges against the Justices concerned before the Tanodbayan rings with insincerity. The complaint was calculated precisely to serve that very purpose. The threat to bring the case to "another forum of justice" was implemented to the fun. Besides, he misses the heart of the matter. Exposure to the glare of publicity is an occupational hazard. If he has been visited with disciplinary sanctions it is because by his conduct, acts and statements, he has, overall, deliberately sought to destroy the "authenticity, integrity, and conclusiveness of collegiate acts," to "undermine the role of the Supreme Court as the final arbiter of all justifiable disputes," and to subvert public confidence in the integrity of the Courts and the Justices concerned, and in the orderly administration of justice.

In fine, we discern nothing in Atty. Laureta's Motion for Reconsideration that would call for a modification, much less a reversal, of our finding that he is guilty of grave professional misconduct that renders him unfit to continue to be entrusted with the duties and responsibilities pertaining to an attorney and officer of the Court.

(2) Neither do we find merit in Ilustre's Motion for Reconsideration. She has turned deaf ears to any reason or clarification. She and her counsel have refused to accept the untenability of their case and the inevitability of

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losing in Court. They have allowed suspicion alone to blind their actions and in so doing degraded the administration of justice. "Investigation" was utterly uncalled for. All conclusions and judgments of the Court, be they en banc or by Division, are arrived at only after deliberation. The fact that no dissent was indicated in the Minutes of the proceedings held on May 14, 1986 showed that the members of the Division voted unanimously. Court personnel are not in a position to know the voting in any case because all deliberations are held behind closed doors without any one of them being present. No malicious inferences should have been drawn from their inability to furnish the information Ilustre and Atty. Laureta desired The personality of the Solicitor General never came into the picture. It was Justice Abad Santos, and not Justice Yap, who was Chairman of the First Division when the Resolution of May 14, 1986 denying the Petition was rendered. Thereafter Justice Yap inhibited himself from any participation. The fact that the Court en banc upheld the challenged Resolutions of the First Division emphasizes the irrespective of Ilustre's case irrespective of the personalities involved.

Additionally, Ilustre has been trifling with this Court. She has given our process servers the run-around. Three of them failed to serve on her personally her copy of this Court's Per Curiam Resolution of March 12, 1987 at her address of record. Mrs. Laureta informed process server Lorenzo C. Bardel that Ilustre was residing at 17-D, Quezon St., Tondo, Manila. Romeo C. Regala, another process server, went to that address to serve copy of the Resolution but he reported:

4. That inspite of diligent efforts to locate the address of ms.Eva Maravilla-Ilustre, said address could not be located;

5. That I even asked the occupants (Cerdan Family) of No. 17 Quezon Street, Tondo, Manila, and they informed that there is no such Ms. Eva Maravilla-Ilustre in the neighborhood and/or in the vicinity; ... (p. 672, Rollo, Vol. 11).

The third process server, Nelson C. Cabesuela, was also unable to serve copy of this Court's Resolution on Ilustre. He reported:

2. On March 17, 1987, at about 9:30 A.M., I arrived at the house in the address furnished at; the notice of judgment (101 Felix Manalo St., Cubao, Quezon City), and was received by an elderly woman who admitted to be the owner of the house but vehemently refused to be Identified, and told me that she does not know the addressee Maravilla, and told me further that she always meets different persons looking for Miss Maravilla because the latter always gives the address of her house;

3. That, I was reminded of an incident that I also experienced in the same place trying to serve a resolution to Miss Maravilla which was returned unserved because she is not known in the place; ... (p. 674, Rollo, Vol. II).

And yet, in her Petition for Extension of Time and in her Motion for Reconsideration she persists in giving that address at 101 Felix Manalo St., Cubao, Quezon City, where our process servers were told that she was not a resident of and that she was unknown thereat. If for her contumacious

elusiveness and lack of candor alone, Ilustre deserves no further standing before this Court.

ACCORDINGLY, the respective Motions for reconsideration of Atty. Wenceslao G. Laureta for the setting aside of the order suspending him from the practice of law, and of Eva Maravilla Ilustre for the lifting of the penalty for contempt are DENIED, and this denial is FINAL. Eva Maravilla Ilustre shall pay the fine of P1,000.00 imposed on her within ten (10) days from notice, or, suffer imprisonment for ten (10) days upon failure to pay said fine within the stipulated period. SO ORDERED.

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ECHEGARAY V. SOJ (297 SCRA 754)

On June 25, 1996, this Court affirmed[1] the conviction of petitioner Leo Echegaray y Pilo for the crime of rape of the 10 year-old daughter of his common-law spouse and the imposition upon him of the death penalty for the said crime.

Petitioner duly filed a Motion for Reconsideration raising mainly factual issues, and on its heels, a Supplemental Motion for Reconsideration raising for the first time the issue of the constitutionality of Republic Act No. 7659[2] (the death penalty law) and the imposition of the death penalty for the crime of rape.

On February 7, 1998, this Court denied[3] petitioner's Motion for Reconsideration and Supplemental Motion for Reconsideration with a finding that Congress duly complied with the requirements for the reimposition of the death penalty and therefore the death penalty law is not unconstitutional.

In the meantime, Congress had seen it fit to change the mode of execution of the death penalty from electrocution to lethal injection,[4] and passed Republic Act No. 8177, AN ACT DESIGNATING DEATH BY LETHAL INJECTION AS THE METHOD OF CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF REPUBLIC ACT NO. 7659.[5] Pursuant to the provisions of said law, the Secretary of Justice promulgated the Rules and Regulations to Implement Republic Act No. 8177 ("implementing rules")[6] and directed the Director of the Bureau of Corrections to prepare the Lethal Injection Manual.[7]

On March 2, 1998, petitioner filed a Petition[8] for Prohibition, Injunction and/or Temporary Restraining Order to enjoin respondents Secretary of Justice and Director of the Bureau of Prisons from carrying out the execution by lethal injection of petitioner under R.A. No. 8177 and its implementing rules as these are unconstitutional and void for being: (a) cruel, degrading and inhuman punishment per se as well as by reason of its being (b) arbitrary, unreasonable and a violation of due process, (c) a violation of the Philippines' obligations under international covenants, (d) an undue delegation of legislative power by Congress, (e) an unlawful exercise by respondent Secretary of the power to legislate, and (f) an unlawful delegation of delegated powers by the Secretary of Justice to respondent Director.

On March 3, 1998, petitioner, through counsel, filed a Motion for Leave of Court[9] to Amend and Supplement Petition with the Amended and Supplemental Petition[10] attached thereto, invoking the additional ground of violation of equal protection, and impleading the Executive Judge of the Regional Trial Court of Quezon City and the Presiding Judge of the Regional Trial Court, Branch 104, in order to enjoin said public respondents from acting under the questioned rules by setting a date for petitioner's execution.

On March 3, 1998, the Court resolved, without giving due course to the petition, to require the respondents to COMMENT thereon within a non-extendible period of ten (10) days from notice, and directed the parties "to MAINTAIN the status quo prevailing at the time of the filing of this petition."

On March 10, 1998, the Court granted the Motion for Leave of Court to Amend and Supplement Petition, and required respondents to COMMENT thereon within ten (10) days from notice.

On March 16, 1998, petitioner filed a Very Urgent Motion (1) To clarify Status Quo Order, and (2) For the Issuance of a Temporary Restraining Order expressly enjoining public respondents from taking any action to carry out petitioner's execution until the petition is resolved.

On March 16, 1998, the Office of the Solicitor General[11] filed a Comment (On the Petition and the Amended Supplemental Petition)[12] stating that (1) this Court has already upheld the constitutionality of the Death Penalty Law, and has repeatedly declared that the death penalty is not cruel, unjust, excessive or unusual punishment; (2) execution by lethal injection, as authorized under R.A. No. 8177 and the questioned rules, is constitutional, lethal injection being the most modern, more humane, more economical, safer and easier to apply (than electrocution or the gas chamber); (3) the International Covenant on Civil and Political Rights does not expressly or impliedly prohibit the imposition of the death penalty; (4) R.A. No. 8177 properly delegated legislative power to respondent Director; and that (5) R.A. No. 8177 confers the power to promulgate the implementing rules to the Secretary of Justice, Secretary of Health and the Bureau of Corrections.

On March 17, 1998, the Court required the petitioner to file a REPLY thereto within a non-extendible period of ten days from notice.

On March 25, 1998, the Commission on Human Rights[13] filed a Motion for Leave of Court to Intervene and/or Appear as Amicus Curiae[14] with the attached Petition to Intervene and/or Appear as Amicus Curiae[15] alleging that the death penalty imposed under R.A. No. 7659 which is to be implemented by R.A. No. 8177 is cruel, degrading and outside the limits of civil society standards, and further invoking (a) Article II, Section 11 of the Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights."; (b) Article III of the Universal Declaration of Human Rights which states that "Everyone has the right to life, liberty and security of person," and Article V thereof, which states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."; (c) The International Covenant on Civil and Political Rights, in particular, Article 6 thereof, and the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming At The Abolition of the Death Penalty; (d) Amnesty International statistics showing that as of October 1996, 58 countries have abolished the death penalty for all crimes, 15 countries have abolished the death penalty for ordinary crimes, and 26 countries are abolitionists de facto, which means that they have retained the death penalty for ordinary crimes but are considered abolitionists in practice that they have not executed anyone during the past ten (10) years or more, or in that they have made an

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international commitment not to carry out executions, for a total of 99 countries which are total abolitionists in law or practice, and 95 countries as retentionists;[16] and (e) Pope John Paul II's encyclical, "Evangelium Vitae." In a Resolution dated April 3, 1998, the Court duly noted the motion.

On March 27, 1998, petitioner filed a Reply[17] stating that (1) this Court is not barred from exercising judicial review over the death penalty per se, the death penalty for rape and lethal injection as a mode of carrying out the death penalty; (2) capital punishment is a cruel, degrading and inhuman punishment; (3) lethal injection is cruel, degrading and inhuman punishment, and that being the "most modern" does not make it less cruel or more humane, and that the Solicitor General's "aesthetic" criteria is short-sighted, and that the lethal injection is not risk free nor is it easier to implement; and (4) the death penalty violates the International Covenant on Civil and Political Rights considering that the Philippines participated in the deliberations of and voted for the Second Optional Protocol.

After deliberating on the pleadings, the Court gave due course to the petition, which it now resolves on the merits.

In the Amended and Supplemental Petition, petitioner assails the constitutionality of the mode of carrying out his death sentence by lethal injection on the following grounds:[18]

I. DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL FOR BEING A CRUEL, DEGRADING AND INHUMAN PUNISHMENT.

II. THE DEATH PENALTY VIOLATES THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, WHICH IS PART OF THE LAW OF THE LAND.

III. LETHAL INJECTION, AS AUTHORIZED UNDER REPUBLIC ACT NO. 8177 AND THE QUESTIONED RULES, IS UNCONSTITUTIONAL BECAUSE IT IS AN UNNECESSARY AND WANTON INFLICTION OF PAIN ON A PERSON AND IS, THUS, A CRUEL, DEGRADING, AND INHUMAN PUNISHMENT.

IV. REPUBLIC ACT NO. 8177 UNDULY DELEGATES LEGISLATIVE POWER TO RESPONDENT DIRECTOR.

V. RESPONDENT SECRETARY UNLAWFULLY DELEGATED THE LEGISLATIVE POWERS DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 TO RESPONDENT DIRECTOR.

VI. RESPONDENT SECRETARY EXCEEDED THE AUTHORITY DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 AND UNLAWFULLY USURPED THE POWER TO LEGISLATE IN PROMULGATING THE QUESTIONED RULES.

VII. SECTION 17 OF THE QUESTIONED RULES IS UNCONSTITUTIONAL FOR BEING DISCRIMINATORY AS WELL AS FOR BEING AN INVALID EXERCISE BY RESPONDENT SECRETARY OF THE POWER TO LEGISLATE.

VIII. INJUCTION MUST ISSUE TO PREVENT IRREPARABLE DAMAGE AND INJURY TO PETITIONER'S RIGHTS BY REASON OF THE EXISTENCE,

OPERATION AND IMPLEMENTATION OF AN UNCONSTITUTIONAL STATUTE AND EQUALLY INVALID AND IMPLEMENTING RULES.

Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do not pass constitutional muster for: (a) violation of the constitutional proscription against cruel, degrading or inhuman punishment, (b) violation of our international treaty obligations, (c) being an undue delegation of legislative power, and (d) being discriminatory.

The Court shall now proceed to discuss these issues in seriatim.

I. LETHAL INJECTION, NOT CRUEL, DEGRADING OR INHUMAN PUNISHMENT UNDER SECTION 19, ARTICLE III OF THE 1987 CONSTITUTION.

The main challenge to R.A. 8177 and its implementing rules is anchored on Article III, Section 19 (1) of the 1987 Constitution which proscribes the imposition of "cruel, degrading or inhuman" punishment. "The prohibition in the Philippine Bill against cruel and unusual punishments is an Anglo-Saxon safeguard against governmental oppression of the subject, which made its first appearance in the reign of William and Mary of England in 'An Act declaring the rights and liberties of the subject, and settling the succession of the crown,' passed in the year 1689. It has been incorporated into the Constitution of the United States (of America) and into most constitutions of the various States in substantially the same language as that used in the original statute. The exact language of the Constitution of the United States is used in the Philippine Bill."[19] "The counterpart of Section 19 (1) in the 1935 Constitution reads: 'Excessive fines shall not be imposed, nor cruel and inhuman punishment inflicted.' xxx In the 1973 Constitution the phrase became 'cruel or unusual punishment.' The Bill of Rights Committee of the 1986 Constitutional Commission read the 1973 modification as prohibiting 'unusual' punishment even if not 'cruel.' It was thus seen as an obstacle to experimentation in penology. Consequently, the Committee reported out the present text which prohibits 'cruel, degrading or inhuman punishment' as more consonant with the meaning desired and with jurisprudence on the subject."[20]

Petitioner contends that death by lethal injection constitutes cruel, degrading and inhuman punishment considering that (1) R.A. No. 8177 fails to provide for the drugs to be used in carrying out lethal injection, the dosage for each drug to be administered, and the procedure in administering said drug/s into the accused; (2) R.A. No. 8177 and its implementing rules are uncertain as to the date of the execution, time of notification, the court which will fix the date of execution, which uncertainties cause the greatest pain and suffering for the convict; and (3) the possibility of "botched executions" or mistakes in administering the drugs renders lethal injection inherently cruel.

Before the Court proceeds any further, a brief explanation of the process of administering lethal injection is in order.

In lethal injection, the condemned inmate is strapped on a hospital gurney and wheeled into the execution room. A trained technician inserts a needle into a vein in the inmate's arm and begins an intravenous flow of saline

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solution. At the warden's signal, a lethal combination of drugs is injected into the intravenous line. The deadly concoction typically includes three drugs: (1) a nonlethal dose of sodium thiopenthotal, a sleep inducing barbiturate; (2) lethal doses of pancuronium bromide, a drug that paralyzes the muscles; and (3) potassium chloride, which stops the heart within seconds. The first two drugs are commonly used during surgery to put the patient to sleep and relax muscles; the third is used in heart bypass surgery.[21]

Now it is well-settled in jurisprudence that the death penalty per se is not a cruel, degrading or inhuman punishment.[22] In the oft-cited case of Harden v. Director of Prisons,[23] this Court held that "[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." Would the lack in particularity then as to the details involved in the execution by lethal injection render said law "cruel, degrading or inhuman"? The Court believes not. For reasons hereafter discussed, the implementing details of R.A. No. 8177 are matters which are properly left to the competence and expertise of administrative officials.[24]

Petitioner contends that Sec. 16[25] of R.A. No. 8177 is uncertain as to which "court" will fix the time and date of execution, and the date of execution and time of notification of the death convict. As petitioner already knows, the "court" which designates the date of execution is the trial court which convicted the accused, that is, after this Court has reviewed the entire records of the case[26] and has affirmed the judgment of the lower court. Thereupon, the procedure is that the "judgment is entered fifteen (15) days after its promulgation, and 10 days thereafter, the records are remanded to the court below including a certified copy of the judgment for execution.[27] Neither is there any uncertainty as to the date of execution nor the time of notification. As to the date of execution, Section 15 of the implementing rules must be read in conjunction with the last sentence of Section 1 of R.A. No. 8177 which provides that the death sentence shall be carried out "not earlier than one (1) year nor later then eighteen (18) months from the time the judgment imposing the death penalty became final and executory, without prejudice to the exercise by the President of his executive clemency powers at all times." Hence, the death convict is in effect assured of eighteen (18) months from the time the judgment imposing the death penalty became final and executory[28] wherein he can seek executive clemency[29] and attend to all his temporal and spiritual affairs.[30]

Petitioner further contends that the infliction of "wanton pain" in case of possible complications in the intravenous injection, considering and as petitioner claims, that respondent Director is an untrained and untested person insofar as the choice and administration of lethal injection is concerned, renders lethal injection a cruel, degrading and inhuman punishment. Such supposition is highly speculative and unsubstantiated.

First. Petitioner has neither alleged nor presented evidence that lethal injection required the expertise only of phlebotomists and not trained

personnel and that the drugs to be administered are unsafe or ineffective.[31] Petitioner simply cites situations in the United States wherein execution by lethal injection allegedly resulted in prolonged and agonizing death for the convict,[32] without any other evidence whatsoever.

Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 which requires that all personnel involved in the execution proceedings should be trained prior to the performance of such task. We must presume that the public officials entrusted with the implementation of the death penalty (by lethal injection) will carefully avoid inflicting cruel punishment.[33]

Third. Any infliction of pain in lethal injection is merely incidental in carrying out the execution of death penalty and does not fall within the constitutional proscription against cruel, degrading and inhuman punishment. "In a limited sense, anything is cruel which is calculated to give pain or distress, and since punishment imports pain or suffering to the convict, it may be said that all punishments are cruel. But of course the Constitution does not mean that crime, for this reason, is to go unpunished."[34] The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.[35] Numerous federal and state courts of the United States have been asked to review whether lethal injections constitute cruel and unusual punishment. No court has found lethal injections to implicate prisoner's Eighth Amendment rights. In fact, most courts that have addressed the issue state in one or two sentences that lethal injection clearly is a constitutional form of execution.[36] A few jurisdictions, however, have addressed the merits of the Eighth Amendment claims. Without exception, these courts have found that lethal injection does not constitute cruel and unusual punishment. After reviewing the medical evidence that indicates that improper doses or improper administration of the drugs causes severe pain and that prison officials tend to have little training in the administration of the drugs, the courts have found that the few minutes of pain does not rise to a constitutional violation.[37]

What is cruel and unusual "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice" and "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[38] Indeed, "[o]ther (U.S.) courts have focused on 'standards of decency' finding that the widespread use of lethal injections indicates that it comports with contemporary norms."[39] the primary indicator of society's standard of decency with regard to capital punishment is the response of the country's legislatures to the sanction.[40] Hence, for as long as the death penalty remains in our statute books and meets the most stringent requirements provided by the Constitution, we must confine our inquiry to the legality of R.A. No. 8177, whose constitutionality we duly sustain in the face of petitioner's challenge. We find that the legislature's substitution of the mode of carrying out the death penalty from electrocution to lethal injection infringes no constitutional rights of petitioner herein.

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II. REIMPOSITION OF THE DEATH PENALTY LAW DOES NOT VIOLATE INTERNATIONAL TREATY OBLIGATIONS

Petitioner assiduously argues that the reimposition of the death penalty law violates our international obligations, in particular, the International Covenant on Civil And Political Rights, which was adopted by the General Assembly of the United Nations on December 16, 1996, signed and ratified by the Philippines on December 19, 1966 and October 23, 1986,[41] respectively.

Article 6 of the International Covenant on Civil and Political Rights provides:

"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court." (emphasis supplied)

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all-cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State. Party to the present Covenant."

Indisputably, Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6 (2) of the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to life, subject to the limitation that it be imposed for the "most serious crimes". Pursuant to Article 28 of the Covenant, a Human Rights Committee was established and under Article 40 of the Covenant, State parties to the Covenant are required to submit an initial report to the Committee on the measures they have adopted which give effect to the rights recognized within the Covenant and on the progress made on the enjoyment of those rights one year of its entry into force for the State Party concerned and thereafter, after five years. On July 27, 1982, the Human Rights Committee issued General Comment No. 6 interpreting Article 6 of the Covenant stating that

"(while) it follows from Article 6 (2) to (6) that State parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the most serious crimes.' The article strongly suggests (pars. 2 (2) and (6) that abolition is desirable. xxx The Committee is of the opinion that the expression 'most serious crimes' must be read restrictively to mean that the death penalty should be a quite exceptional measure." Further, the Safeguards Guaranteeing Protection of Those Facing the Death Penalty[42] adopted by the Economic and Social Council of the United Nations declare that the ambit of the term 'most serious crimes' should not go beyond intentional crimes, with lethal or other extremely grave consequences.

The Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the General Assembly of the United Nations on December 16, 1966, and signed and ratified by the Philippines on December 19, 1966 and August 22, 1989,[43] respectively. The Optional Protocol provides that the Human Rights Committee shall receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant.

On the other hand, the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty was adopted by the General Assembly on December 15, 1989. The Philippines neither signed nor ratified said document.[44] Evidently, petitioner's assertion of our obligation under the Second Optional Protocol is misplaced.

III. THERE IS NO UNDUE DELEGATION OF LEGISLATIVE POWER IN R.A. NO. 8177 TO THE SECRETARY OF JUSTICE AND THE DIRECTOR OF BUREAU OF CORRECTIONS, BUT SECTION 19 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177 IS INVALID.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in the framing of our Constitution. Each department of the government has exclusive cognizance of matters placed within its jurisdiction, and is supreme within its own sphere.[45] Corollary to the doctrine of separation of powers is the principle of non-delegation of powers. "The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest."[46] The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI of the Constitution;

(3) Delegation to the people at large;

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(4) Delegation to local governments; and

(5) Delegation to administrative bodies.[47]

Empowering the Secretary of Justice in conjunction with the Secretary of Health and the Director of the Bureau of Corrections, to promulgate rules and regulations on the subject of lethal injection is a form of delegation of legislative authority to administrative bodies.

The reason for delegation of authority to administrative agencies is the increasing complexity of the task of government requiring expertise as well as the growing inability of the legislature to cope directly with the myriad problems demanding its attention. The growth of society has ramified its activities and created peculiar and sophisticated problems that the legislature cannot be expected to attend to by itself. Specialization even in legislation has become necessary. On many problems involving day-to-day undertakings, the legislature may not have the needed competence to provide the required direct and efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates, who are supposed to be experts in the particular fields assigned to them.[48]

Although 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 delegate[49] - 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.[50]

Considering the scope and the definiteness of R.A. No. 8177, which changed the mode of carrying out the death penalty, the Court finds that the law sufficiently describes what job must be done, who is to do it, and what is the scope of his authority.[51]

R.A. No. 8177 likewise provides the standards which define the legislative policy, mark its limits, map out its boundaries, and specify the public agencies which will apply it. it indicates the circumstances under which the legislative purpose may be carried out.[52] R.A. No. 8177 specifically requires that "[t]he death sentence shall be executed under the authority of the Director of the Bureau of Corrections, endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution."[53] Further, "[t]he Director of the Bureau of Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict."[54] The legislature also mandated that "all personnel involved in the administration of lethal injection shall be trained prior to the performance of such task."[55] The Court cannot see that any useful purpose would be served by requiring greater detail.[56] The question raised is not the definition of what constitutes a criminal offense,[57] but the mode of carrying out the penalty already imposed by the Courts. In this sense, R.A. No. 8177 is sufficiently definite and the exercise of discretion by the administrative officials

concerned is, to use the words of Justice Benjamin Cardozo, canalized within banks that keep it from overflowing.

Thus, the Court finds that the existence of an area for exercise of discretion by the Secretary of Justice and the Director of the Bureau of Corrections under delegated legislative power is proper where standards are formulated for the guidance and the exercise of limited discretion, which though general, are capable of reasonable application.[58]

It is also noteworthy that Article 81 of the Revised Penal Code which originally provided for the death penalty by electrocution was not subjected to attack on the ground that it failed to provide for details such as the kind of chair to be used, the amount of voltage, volume of amperage or place of attachment of electrodes on the death convict. Hence, petitioner's analogous argument with respect to lethal injection must fail.

A careful reading of R.A. No. 8177 would show that there is no undue delegation of legislative power from the Secretary of Justice to the Director of the Bureau of Corrections for the simple reason that under the Administrative Code of 1987, the Bureau of Corrections is a mere constituent unit of the Department of Justice.[59] Further, the Department of Justice is tasked, among others, to take charge of the "administration of the correctional system."[60] Hence, the import of the phraseology of the law is that the Secretary of Justice should supervise the Director of the Bureau of Corrections in promulgating the Lethal Injection Manual, in consultation with the Department of Health.[61]

However, the Rules and Regulations to Implement Republic Act No. 8177 suffer serious flaws that could not be overlooked. To begin with, something basic appears missing in Section 19 of the implementing rules which provides:

"SEC. 19. EXECUTION PROCEDURE. - Details of the procedure prior to, during and after administering the lethal injection shall be set forth in a manual to be prepared by the Director. The manual shall contain details of, among others, the sequence of events before and after execution; procedures in setting up the intravenous line; the administration of the lethal drugs; the pronouncement of death; and the removal of the intravenous system.

Said manual shall be confidential and its distribution shall be limited to authorized prison personnel."

Thus, the Courts finds in the first paragraph of Section 19 of the implementing rules a veritable vacuum. The Secretary of Justice has practically abdicated the power to promulgate the manual on the execution procedure to the Director of the Bureau of Corrections, by not providing for a mode of review and approval thereof. Being a mere constituent unit of the Department of Justice, the Bureau of Corrections could not promulgate a manual that would not bear the imprimatur of the administrative superior, the Secretary of Justice as the rule-making authority under R.A. No. 8177. Such apparent abdication of departmental responsibility renders the said paragraph invalid.

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As to the second paragraph of section 19, the Court finds the requirement of confidentiality of the contents of the manual even with respect to the convict unduly suppressive. It sees no legal impediment for the convict, should he so desire, to obtain a copy of the manual. The contents of the manual are matters of public concern "which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen."[62] Section 7 of Article III of the 1987 Constitution provides:

"SEC. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transaction, or decisions, as well as to government research data used as a basis for policy development, shall be afforded the citizen, subject to such limitation as may be provided by law."

The incorporation in the Constitution of a guarantee of access to information of public concern is a recognition of the essentiality of the free flow of ideas and information in a democracy.[63] In the same way that free discussion enables members of society to cope with the exigencies of their time,[64] access to information of general interest aids the people in democratic decision-making[65] by giving them a better perspective of the vital issues confronting the nation.[66]

D. SECTION 17 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177 IS INVALID FOR BEING DISCRIMINATORY AND CONTRARY TO LAW.

Even more seriously flawed than Section 19 is Section of the implementing rules which provides:

"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE. Execution by lethal injection shall not be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, nor upon any person over seventy (70) years of age. In this latter case, the death penalty shall be commuted to the penalty of reclusion perpetua with the accessory penalties provided in Article 40 of the Revised Penal Code."

Petitioner contends that Section 17 is unconstitutional for being discriminatory as well as for being an invalid exercise of the power to legislate by respondent Secretary. Petitioner insists that Section 17 amends the instances when lethal injection may be suspended, without an express amendment of Article 83 of the Revised Penal Code, as amended by section 25 of R.A. No. 7659.

Article 83 f the Revised Penal Code, as amended by section 25 of R.A. No. 7659 now reads as follows:

"ART. 83, Suspension of the execution of the death sentence.- The death sentence shall not be inflicted upon a woman while she is pregnant or within one (1) year after delivery, nor upon any person over seventy years of age. In this last case, the death sentence shall be commuted to the

penalty of reclusion perpetua with the accessory penalty provided in Article 40. x x x".

On this point, the Courts finds petitioner's contention impressed with merit. While Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the implementation of the death penalty while a woman is pregnant or within one (1) year after delivery, Section 17 of the implementing rules omits the one (1) year period following delivery as an instance when the death sentence is suspended, and adds a ground for suspension of sentence no longer found under Article 83 of the Revised Penal Code as amended, which is the three-year reprieve after a woman is sentenced. This addition is, in petitioner's view, tantamount to a gender-based discrimination sans statutory basis, while the omission is an impermissible contravention of the applicable law.

Being merely an implementing rule, Section 17 aforecited must not override, but instead remain consistent 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."[67] An administrative agency cannot amend an act of Congress.[68] In case of discrepancy between a provision of statute and a rule or regulation issued to implement said statute, the statutory provision prevails. Since the cited clause in Section 17 which suspends the execution of a woman within the three (3) years next following the date of sentence finds no supports in Article 83 of the Revised Penal Code as amended, perforce Section 17 must be declared invalid.

One member of the Court voted to declare Republic Act. No. 8177 as unconstitutional insofar as it delegates the power to make rules over the same subject matter to two persons (the Secretary of Justice and the Director of the Bureau of Corrections) and constitutes a violation of the international norm towards the abolition of the death penalty. One member of the Court, consistent with his view in People v. Echegaray, 267 SCRA 682, 734-758 (1997) that the death penalty law (Republic Act. No. 7659) is itself unconstitutional, believes that Republic Act No. 8177 which provides for the means of carrying out the death sentence, is likewise unconstitutional. Two other members of the court concurred in the aforesaid Separate Opinions in that the death penalty law (Republic Act No. 7659) together with the assailed statute (Republic Act No. 8177) are unconstitutional. In sum, four members of the Court voted to declare Republic Act. No. 8177 as unconstitutional. These Separate Opinions are hereto annexed, infra.

WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are concerned, which are hereby declared INVALID because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of the Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable to interested parties including the accused/convict and counsel. Respondents are hereby enjoined from

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enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended, revised and/or corrected in accordance with this Decision.

NO COSTS.

SO ORDERED.

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LINA V. PURISIMA (82 SCRA 344)

Petition for certiorari and mandamus to annul the two successive orders of dismissal, for supposed lack of jurisdiction, of petitioner's complaint in Special Civil Action No. 94986 of the Court of First Instance of Manila issued by respondent judge and to command said respondent to try and decide the said case on the merits.

The first order of dismissal in question dated August 14, 1974 is as follows:

Petition in this case is for the writ of mandamus to compel respondents 'to restore petitioner to the position she was excluded from' in the Philippine Veterans Bank.

While the petition avers that respondent Esteban Cabanos, as President of the Bank, 'in grave abuse of discretion and authority forcibly excluded petitioner from the position without valid cause, nor basis in law, it also states that the removal of petitioner was 'upon recommendation of Branch Manager, Julio Tamondong, "..."which recommendation and action of respondent Esteban Cabanos was later approved by the Board of Directors of the said Bank.

The petition likewise avers that petitioner has appealed to the Office of the President, but the latter denied the same.

The allegation in the petition that respondent Cabanos committed "grave abuse of discretion and authority" in dismissing petitioner from her office is a legal conclusion, not a statement of the ultimate facts giving rise to the cause of action being asserted. Why petitioner's removal from office by Cabanos was in grave abuse of discretion is not averred.

Neither is it shown in the petition why petitioner entitled to the office from which she was removed — to reinstatement in other words.

It is equally noticeable that while annexed to the petition is the letter of Assistant Executive Secretary Ronaldo B. Zamora to Atty. Pantaleon Z. Salcedo informing him of the denial of petitioner's request for reconsideration as contained in the therewith enclosed copy of the 2nd endorsement of said office, the petition before the Court does not include said enclosure as an annex, nor copied therein, which should show why the said request for reconsideration was denied, one of the ultimate facts which must necessarily be looked into should the petition be given due course. For that matter, neither is the letter or notice of petitioner's removal from office included in the petition.

Considering an the foregoing observations, the Court does not find the petition to be sufficient in form and substance to justify the process of requiring respondents to answer the petition pursuant to Section 6 of Rule 65 of the Rules of Court.

Wherefore, the petition is hereby dismissed.

In an attempt to cure the suppose defects pointed out in the foregoing order, petitioner filed an amended petition, which, however, met the same fate as the original one. The Second order of dismissal dated September 3, 1974 runs thus:

Before the Court is petitioner's motion to admit amended petition, with the amended petition already attached,, filed obviously for the purpose of correcting defects in the original petition which was earlier dismissed by the Court upon the ground that it found the same not to be sufficient in form and substance.

Documents not annexed to the original petition which were pointed out in the order dismissing the original petition are now annexed to the amended petition. And the nature of their contents explain why they were conveniently suppressed in the original petition.

It now appears from the annexes of the amended petition that petitioner was dismissed by respondent president of the Philippine Veterans Bank pursuant to Letters of Instruction No. 14 and No. 19-A, for being notoriously undesirable. (Annex "H"). This being the case, petitioner had a right to appeal from her dismissal, and the venue of the appeal is the Office of the President. She did appeal. (Annex "G"). But the appeal was denied. (Annex "H"- letter from the Office of the President).

The aforesaid letter from the Office of the President in effect affirmed the position taken by respondent Cabanos in dismissing petitioner pursuant to Letter of Instruction No. 14-A.

Since the removal of petitioner is pursuant to a Letter of Instruction issued by the President pursuant to Proclamation No. 1081, the validity or legality of said act is beyond the power of the courts to review, much less modify or reverse, whether by means of the writ of certiorari and/or mandamus, or any other court process. This is one of the express hesitations upon the power of Courts imposed by General Order No.3 issued by the President on September 22, 1972. Said general order provides:

xxx xxx xxx

I do hereby further order that the Judiciary shall continue to function in accordance with its present organization and personnel, and shall try and decide in accordance with existing laws all criminal and civil cases, except the following cases:

1. Those involving the validity, legality, or constitutionality of any decree, order or act issued, promulgated or performed by me or by my duly designated representative pursuant to Proclamation No. 1081, dated Sept. 21, 1972.

2. Those involving the validity, legality or constitutionality of any rules, orders or acts issued, promulgated or performed by public servants pursuant to decrees, orders, rules and regulations issued and promulgated by me or by my duly designated representative pursuant to Proclamation No. 1081, dated Sept. 21, 1972.

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Foregoing considered, the amended petition is hereby dismissed upon the grounds already stated in the order dated August 14, 1974, and upon the more important ground that the relief prayed for therein is for the present beyond the power of the Court to extend.

Considering that petitioner filed an amended complaint purporting to comply with the tenor of the first order of dismissal in question, it is unnecessary for Us to make any ruling as to the propriety of His Honor's action of dismissing the original complaint.

Anent the second order, it is at once obvious that petitioner's right to redress against the same is beyond dispute. Respondent court's invocation of General Order No. 3 of September 21, 1972 is nothing short of an unwarranted abdication of judicial authority, which no judge duly imbued with the implications of the paramount principle of independence of the judiciary should ever think of doing. It is unfortunate indeed that respondent judge is apparently unaware that it is a matter of highly significant historical fact that this Court has always deemed General Order No. 3 including its amendment by General Orders No. 3-a 1 as practically inoperative even in the light of Proclamation 1081 of September 21, 1972 and Proclamation 1104 of January 17, 1973 placing the whole Philippines under martial law. While the members of the Court are not agreed on whether or not particular instances of attack against the validity of certain Presidential Decrees raise political questions which the judiciary would not interfere with, there is unanimity among Us in the view that it is for the Court rather than the Executive to determine whether or not We may take cognizance of any given case involving the validity of acts of the Executive Department purportedly under the authority of the martial law proclamations.

In this regard, to the credit of President Marcos, it has been noted by the Court that the President has publicly acknowledged as one of the distinctive cardinal features of the prevailing martial law regime that the constitutional authority, prerogatives and jurisdiction of the Supreme Court, as they have ever existed in normal times, remain integrally unimpaired despite the proclamation of martial law. In plainer terms, it has been repeatedly announced by the President, even to international or foreign audiences, that our martial law government is subject, as by constitutional mandate it should always be, to the authority and jurisdiction of the Supreme Court. And undoubtedly, in appropriate cases, such pronouncements can apply to the judiciary as a whole. Accordingly, We do not hesitate to reject the reasoning advanced by respondent court as a constitutionally-uncalled- for submissiveness to the Executive, certainly unworthy of the judicial office. We hold that the legal premise of the impugned order is absolutely erroneous from the point of view of sacred constitutional principles. Such an order does not deserve to be given sanction by this Court as being in keeping with the role of the courts in this momentous era of our national existence as a democratic republic committed to hold inviolate the independence of the judiciary at all times, so long as the constitution continues to be in force.

Now, strictly speaking and observing the usual procedural rules, what has just been said should suffice to dispose of this case. In other words, in the light of Our view that respondent court committed a grave error in declaring itself jurisdictionally impotent in the premises, ordinarily, what remains for Us to do is only to direct that petitioner's case be tried and decided by respondent judge on the merits. But this is the Supreme Court whose power and duty to do substantial justice in every case before it are inherent, plenary and imperative, hence extensive to all instances where it appears that final resolution of the controversy before it is feasible without denying any of the parties involved full opportunity to be heard. Stated differently, if in any case elevated to this Court for the correction of any supposed procedural error of any lower court, it should be found that indeed there has been a mistake, and it further appears that all the facts needed for a complete determination of the whole controversy are already before the Court undisputed or uncontroverted by the parties, the Supreme Court may at its option, whenever it feels the best interests of justice would be thereby subserved, dispense with the usual procedure of remanding the case to the court of origin for its own judgment, and instead, the Supreme Court may already resolve the pertinent determinative issues and render the final judgment on the merits. The obvious reason for such an extension in the exercise of the Court's pervasive power is that any other procedure would amount to an unnecessary rigmarole which can only augment the expenses, efforts and anxieties of the parties and uselessly delay the administration of justice, no other result for all concerned being anyway perceptible.

Such is the situation in the case at bar. Although no trial was held in the court below, the pleadings before Us portray all the vital issues between the parties. The facts alleged by both of them are mutually uncontroverted and, on the other hand, the legal issues are properly joined. Respondents have from all appearances unquestioningly submitted all matters controversy for resolution of this Court. In fact, in their "Manifestation and Comment" dated November 12, 1975 respondents state their position in this respect unequivocally thus:

That they join with the petitioner in her Motion With Leave for Early Resolution dated September 20, 1976, consistent with herein respondents submittal that the instant case be resolved by this Honorable Tribunal' without further remanding the case to the court of origin' as manifested in their Reply dated July 14, 1975.

Accordingly, We shall now proceed to determined petitioner's prayer for mandamus on its merits.

In this connection, it may be stated that on May 22, 1975, subsequent to the hearing of this case, respondents filed a manifestation to the effect that on May 12, 1975, the following Administrative Order No. 6, Series of 1975, had been issued:

ADMINISTRATIVE ORDER NO. 6

SERIES OF 1975

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SUBJECT: Reinstatement to the Service of LUALHATI L. LINA

In line with the policy of management to promote industrial peace, Administrative Order No. 75 dated October 16, 1972, is set aside, and Miss LUALHATI L. LINA is hereby reinstated to her former position as Bookkeeper in the Bank, effective upon assumption to duty, with entitlement to the pay and allowances appurtenant thereto. This order of reinstatement is without prejudice to the outcome of the proceedings pending before the Supreme Court.

(SGD.) ESTEBAN B. CABANOS

That manifestation reads in full as follows:

COME NOW the respondents PHILIPPINE VETERANS BANK and ESTEBAN B. CABANOS in his capacity as President of the Bank, thru the undersigned counsel and to this Honorable Court most respectfully manifest: —

l. That the principal issue in this case is the questioned ruling and/or order of the lower court presided by the respondent Judge Amante P. Purisima to the effect that the relief prayed for by the petitioner for mandamus and damages is beyond the power of the court to extend;

2. That respondents, without necessarily admitting the correctness of the position taken by the petitioner, have issued Administrative Order No. 6 dated May 12, 1975, reinstating petitioner to her former position as bookkeeper, effective upon assumption of office, without prejudice to the result of the proceedings pending before the Honorable Supreme Court, a certified xerox copy of which is hereto attached as Annex 'A';

3. That respondents in addition to reinstatement, will pay all back salaries and other emoluments due her from October 17, 1972;

4. That the respondents in addition to reinstatement and payment of back wages and other emoluments are willing to reimburse the petitioner the actual expenses incurred by her in connection with this case;

5. That the reinstatement of the petitioner is in line with the policy of Management to eliminate all possible irritants between labor and management, to reassure labor of the fairness of management, in order to promote industrial peace.

WHEREFORE, it is most respectfully prayed that the manifestation be duly considered in whatever resolution this Honorable Court may deem just and proper in the premises.

Notwithstanding her receipt of the above communications, petitioner has not returned to her work. Instead, she flied the following "Comments and Manifestation" on June 19, 1975:

PETITIONER, by counsel pursuant to and in compliance with the Court's resolution dated May 29, 1975, and received by counsel on June 9, 1975,

now comes before this Honorable Tribunal to submit these comments and manifestations and respectfully avers that —

1. Petitioner concurs with the manifestation of respondents to the effect that she be restored to the position she was excluded from 'effective upon assumption of office without prejudice to the result of the proceedings pending before the Honorable Supreme Court'; the payment of her back salaries and other emoluments she is entitled to and the reimbursement of her expenses actually incurred in connection with the case at bar-, provided that her claim for damages, actual moral and exemplary shag stand unaffected by her concurrence to respondents' manifestation and shall remain subject to the resolution of this most Honorable Tribunal

2. The above entitled case arose out of the dismissal by the lower court of the petition for mandamus with damages filed by your petitioner, docketed as Special Civil Action No. 94986 upon the only ground that the relief prayed for in the said petition is 'beyond the power of the court to extend.'

3. The petition in the Lower Court sought two specific purposes. These purposes are: (1) the restoration of petitioner to the position she was excluded from including the payment of her back salaries, actual expenses incurred in connection with the case and other emoluments due her by virtue of the office, and (2) the payment of damages, actual moral and exemplary as a result of her dismissal.

4. The manifestation of respondents speaks only of the restoration of petitioner to the position she was excluded from and the payment of her back salaries, other emoluments due her and the actual expenses incurred in connection with the case at bar, but leaving out, or perhaps purposely omitting the question of damages prayed for in the petition of origin out of the manifestation and excluding also the award of attorney's fees to petitioner.

5. The concurrence therefore, of your petitioner to the manifestation of respondents is only limited to the matters therein mentioned but without prejudice to her claim of actual moral and exemplary damages. (Pp, 111-112, Record,)

with prayer that:

WHEREFORE, it is most respectfully prayed to this Most Honorable Tribunal that an order be issued to respondents to -

a. restore your petitioner to her former position;

b. pay your petitioner's back salaries, and other emoluments due her by virtue of the office,

c. reimburse your petitioner the expenses she actually incurred in connection with the case;

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d. pay attorney's fees as prayed for in the petition of origin which includes actual moral and exemplary or in the alternative, to remand the question of damages to the court of origin.

FURTHER, petitioner prays for such other relief deemed just, proper and equitable under the premises. (Pp. 112-113, Record.)

which prayer she reiterated in her subsequent motions of September 24, 1976, November 8, 1976 and September 13, 1977.

With this denouement in the circumstances of this case after the same was submitted for Our decision it has become unnecessary for Us to pass on the claims of petitioner to (1) reinstatement, (2) back salaries and other emoluments due her by virtue of her office and (3) reimbursement of all expenses actually incurred by her in connection with this case. Respondents have already committed themselves to accede to her prayer in these respects, thus:

Your respondents hereby respectfully submit that it is no longer necessary for the petitioner to pray to this Honorable Tribunal that judgment be rendered ordering respondents to:

l. Restore your petitioner movant to her former position;

2. Pay your petitioner movant her back salaries and other emoluments due her by virtue of the position,

3. Reimburse your petitioner movant the expenses actually incurred in connection with the case, including attorney's fees;

because the respondents, though without admitting the validity of the cause of action of the petitioner, have already voluntarily and freely expressed their absolute and unqualified willingness and ability to comply with those demands of petitioner, as respondents have expressed in the Administrative Order No. 6 dated May 12, 1975 and in their Manifestation dated May 22, 1975 wherein they further unconditionally committed themselves that petitioner can return to work any time without waiting for any resolution of this Honorable Tribunal. That which is already being voluntarily complied with need not be ordered anymore. (Manifestation and Comment of respondents dated November 12, 1976.)

In the same Manifestation and Comment just partially quoted, however, respondents pleaded as follows:

However, because of the unexplained failure of petitioner to report back to work pursuant to Administrative Order No. 6, the herein respondent bank's commitment to pay back salaries and allowances, we beg leave, should be confined and limited to the period from October 16, 1972 (date of her dismissal) up to only some reasonable time from May 12, 1975 when Administrative Order No. 6 was issued.

Thus, the only issue left for determination and resolution of this Honorable Tribunal is whether or not the respondent is still liable for moral or

exemplary damages despite respondents' voluntary action to reinstate petitioner and pay her back salaries, allowances and actual damages. As regards this issue, both petitioner and respondents are in unison in moving that this Honorable Tribunal resolve the said issue without remanding the case to the court of origin. The willingness and voluntary action of respondent Bank to reinstate petitioner, to pay all back salaries and allowances and actual expenses incurred by petitioner, we beg leave of this Honorable Tribunal to be considered in the determination and passing judgment upon the petitioner's claim for moral and/or exemplary damages.

In this connection the respondents Bank and Esteban B. Cabanos profess good faith as they were impelled not by ill-will nor personal malice, but only by their ultimate purpose to serve the best interest of the Bank and the Goals of the New Dispensation and the Program of Reform in and out of the Government service.

WHEREFORE, the herein represented respondents move for the early resolution of the instant case without further remanding the same to the court of origin and in the consideration of the facto and law applicable to the instant case, herein respondents further respectfully pray that this Honorable Tribunal take into account the honest and sincere gesture of the respondents in issuing Administrative Order No. 6 dated May 12, 1975 in clear manifestation of their desire to promote industrial peace, to reassure labor of the fairness of management in the respondent Philippine Veterans Bank.

Herein respondents also pray that no award of moral and exemplary damages be imposed against them.

In the factual premises just stated, We do not believe petitioner is entitled to more than what respondents are willing to concede. For a moment some members of the Court entertained the thought of awarding her moral and exemplary damages plus attomey's fees. On further reflection, however, the Court has come to the unanimous conclusion that petitioner's reaction to the well taken decision of respondents to rectify whatever legal injury had been caused her by her dismissal, that indeed appears to be rather precipitate, does not conform with law and justice. It is Our considered view that upon receipt of the above-quoted memorandum of May 12, 1975 and, particularly, the manifestation of respondents of May 22, 1975, which were duly served on her counsel, it became the inescapable duty of petitioner to immediately report for work without having to wait for Our final action. Indeed, by her posture of obstinacy in refusing to report for duty after respondent insistently reiterated their conformity, in their Manifestation and Comment of November 12, 1976 above referred to and partly quoted, to her demand for reinstatement, payment of back salaries and all incidental expenses, she lost every ground of fairness and equity she might have initially had as a result of her abrupt separation from the service. As may be observed, respondents' order of reinstatement and formal tender of her back salaries and expenses was expressly subject to the ultimate outcome of this case. There was, therefore, nothing anymore that petitioner could risk by immediately reporting for work, insofar as her right to relief in law is concerned. All she could be entitled to could not have been more securely safeguarded. Under these circumstances, We have no

15

alternative than to hold that she has deprived herself of legal and equitable basis for the additional relief of moral and exemplary damages.

The unbending rule of jurisprudence in this jurisdiction ' regarding the right of an employee or worker to reinstatement after an unlawful dismissal does not permit him or her to stand Idly by for a long time while awaiting the settlement of the issue. Concomitant with the right to be taken back is the obligation of the dismissed employee or worker to endeavor to secure gainful employment elsewhere. The foundation of such a rule is the principle of no work, no pay. In this particular case, petitioner's failure to report for duty as directed might have impaired the public service being performed by her employer, considering that her expected return must have derailed any plans for her replacement.

Besides, the law on damages imposes upon the claimant, regardless of the unquestionability of his or her entitlement thereto, to minimize the same as much as possible. Such indeed is the demand of equity, for the juridical concept of damages is nothing more than to repair what has been lost materially and morally. It may not be taken advantage of to allow unjust enrichment. Any relevant act of unfairness on the part of the claimant correspondingly writes off the moral wrong involved in the juridical injury inflicted upon him or her.

WHEREFORE, the respondent court's order of September 3, 1974 is hereby declared null and void and set aside, and Civil Case No. 94986 is deemed terminated in accordance with the terms of this decision. The Court further rules that petitioner should report for work within thirty (30) days from service of this decision upon her counsel of record, on pain of her losing her job, if she fails to do so. Respondents' tender of her back salaries and expenses in accordance with their manifestations before the Court of May 22, 1975 and November 12, 1976 is declared well taken, and whether or not petitioner returns for work as herein indicated, she should be paid what she has been promised which, for clarity, We hold includes (a) payment of petitioner's back salaries from October 16, 1972, the date of her dismissal up to one month or thirty (30) days after her counsel's receipt of the respondents' Manifestation and Comment of November 12, 1976 above referred to and (b) reimbursement of her expenses actually incurred in connection with this case, including attorney's fees equivalent to ten (10) per centum of the amount of total recovery as herein allowed. (2)

No costs.

16

TAN V. MACAPAGAL (43 SCRA678)

A five-page petition filed on October 6, 1971 by Eugene A. Tan, Silvestre J. Acejas and Rogelio V. Fernandez, respectively, of Roxas City, Romblon and Davao City, for declaratory relief as taxpayers, but purportedly suing on behalf of themselves and the Filipino people, in assailing the validity of the Laurel-Leido Resolution, 1 dealing with the range of the authority of the 1971 Constitutional Convention, would have this Court declare that it is "without power, under Section 1, Article XV of the Constitution and Republic Act 6132, to consider, discuss and adopt proposals which seek to revise the present Constitution through the adoption of a form of government other than the form now outlined in the present Constitution [the Convention being] merely empowered to propose improvements to the present Constitution without altering the general plan laid down therein." 2 Such a plea of the utmost seriousness was sought to be compressed in a five-page pleading. It is understandable, therefore, why the petition could hardly be characterized as possessed of merit. Accordingly, on October 8, 1971, this Court issued a resolution dismissing it. Then came on the last day of that month a printed thirty-two page motion for reconsideration. It is evident that petitioners took some pains this time, although the main reliance seems to be on a secondary authority, American Jurisprudence. 3 The show of diligence is impressive but the persuasive quality is something else. A perusal thereof yields the conclusion that petitioners are oblivious of the authoritative precedents in this jurisdiction. The approach is not distinguished by its conformity with the law as it stands. In this sphere as elsewhere, new cults may be eroding considering, however, the compulsion of the ancient faiths. Considering, however, the compulsion of the fundamental principle of separation of powers, this Court cannot exercise the competence petitioners would erroneously assume it possesses, even assuming that they have the requisite standing, which is the first question to be faced.

1. What calls for prior determination is whether or not petitioners had the requisite standing to seek a declaration of the alleged nullity of a resolution of the Constitutional Convention. 4 In the categorical and succinct language of Justice Laurel: "The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement." 5 There has been a relaxation of this rule. So it was announced by the present Chief Justice in Pascual v. The Secretary of Public Works. 6 Thus: "Again, it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury, in consequence of its enforcement. Yet, there are many decisions nullifying, at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that the "expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds," which may be enjoined at the request of a taxpayer." 7 Moreover, where a constitutional question is raised, a Senator has usually been considered as possessed of the requisite personality to bring a suit. Thus in Mabanag vs. Lopez Vito, 8 it was a member of the Senate who was heard by this Court in a suit for prohibition to prevent the enforcement of the congressional resolution proposing the parity rights amendment. 9 Likewise, in the latest case in point, Tolentino v. Commission

on Elections, it was a Senator who brought action challenging the validity of Organic Resolution No. 1 of the 1971 Constitutional Convention. He was quite sucessful too. Petitioners in the present case cannot be heard to assert that they do qualify under such a category.

Moreover, as far as a taxpayer's suit is concerned, Court is not devoid of discretion as to whether or not it should be entertained. It is our view that a negative answer is indicated. Nor should petitioners feel discriminated against just because in Gonzales v. Commission on Elections, 10 a member of the Philippine Bar, now Delegate Ramon Gonzales, was allowed to prosecute his action for prohibition instituted by him as a taxpayer. Petitioners have no cause for legitimate resentment as such suit could be distinguished from the present.

2. Petitioner Gonzales in accordance with the controlling doctrine had the good sense to wait before filing his suit until after the enactment of the statute 11 for the submission to the electorate of certain proposed amendments to the Constitution. 12 It was only then that the matter was ripe for adjudication. Prior to that stage, the judiciary had to keep its hands off. The doctrine of separation of powers calls for the other departments being left alone to discharge their duties as they see fit. The judiciary as Justice Laurel emphatically asserted "will neither direct nor restrain executive [or legislative]action ... ." 13 The legislative and executive branches are not bound to seek its advice as to what to do or not to do. Judicial inquiry has to be postponed in the meanwhile. It is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture. At such a time, it may pass on the validity of what was done but only "when ... properly challenged in an appropriate legal proceeding." 14

Such a principle applies as well when the inquiry concerns the scope of the competence lodged in the Constitutional Convention. The judiciary must leave it free to fulfill its responsibility according to its lights. There is to be no interference. Its autonomy is to be respected. It cannot be otherwise if it is to perform its function well. Such should be the case not only because it is a coordinate agency but also because its powers are transcendent, amounting as it does to submitting for popular ratification proposals which may radically alter the organization and functions of all three departments, including the courts. It is therefore much more imperative that the rule of non-interference be strictly adhered to until the appropriate time comes.

More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction. That is the command of the Constitution as interpreted by this Court. Unless and until such a doctrine loses force by being overruled or a new precedent being announced, it is controlling. That is implicit in the rule of law. Petitioners' motion for reconsideration cannot therefor be sustained.

WHEREFORE, the motion for reconsideration is denied. No costs.

17

TELEBAP V. COMELEC (289 SCRA 337)

In Osmeña v. COMELEC, G.R. No. 132231, decided March 31, 1998, 1 we upheld the validity of § 11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or air time for political ads, except to the Commission on Elections under §90, of B.P. No. 881, the Omnibus Election Code, with respect to print media, and §92, with respect to broadcast media. In the present case, we consider the validity of §92 of B.P. Blg. No. 881 against claims that the requirement that radio and television time be given free takes property without due process of law; that it violates the eminent domain clause of the Constitution which provides for the payment of just compensation; that it denies broadcast media the equal protection of the laws; and that, in any event, it violates the terms of the franchise of petitioner GMA Network, Inc.

Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an organization of lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers, and registered voters. The other petitioner, GMA Network, Inc., operates radio and television broadcasting stations throughout the Philippines under a franchise granted by Congress.

Petitioners challenge the validity of §92 on the ground (1) that it takes property without due process of law and without just compensation; (2) that it denies radio and television broadcast companies the equal protection of the laws; and (3) that it is in excess of the power given to the COMELEC to supervise or regulate the operation of media of communication or information during the period of election.

The Question of Standing

At the threshold of this suit is the question of standing of petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members assert an interest as lawyers of radio and television broadcasting companies and as citizens, taxpayers, and registered voters.

In those cases 2 in which citizens were authorized to sue, this Court upheld their standing in view of the "transcendental importance" of the constitutional question raised which justified the granting of relief. In contrast, in the case at bar, as will presently be shown, petitioner's substantive claim is without merit. To the extent, therefore, that a party's standing is determined by the substantive merit of his case or preliminary estimate thereof, petitioner TELEBAP must be held to be without standing. Indeed, a citizen will be allowed to raise a constitutional question only when he can show that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury fairly is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action. 3 Members of petitioner have not shown that they have suffered harm as a result of the operation of §92 of B.P. Blg. 881.

Nor do members of petitioner TELEBAP have an interest as registered voters since this case does not concern their right of suffrage. Their interest in §92 of B.P. Blg. 881 should be precisely in upholding its validity.

Much less do they have an interest as taxpayers since this case does not involve the exercise by Congress of its taxing or spending power. 4 A party suing as a taxpayer must specifically show that he has a sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute.

Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and television broadcasting companies. Standing jus tertii will be recognized only if it can be shown that the party suing has some substantial relation to the third party, or that the third party cannot assert his constitutional right, or that the eight of the third party will be diluted unless the party in court is allowed to espouse the third party's constitutional claim. None of these circumstances is here present. The mere fact that TELEBAP is composed of lawyers in the broadcast industry does not entitle them to bring this suit in their name as representatives of the affected companies.

Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc., appears to have the requisite standing to bring this constitutional challenge. Petitioner operates radio and television broadcast stations in the Philippines affected by the enforcement of §92 of B.P. Blg. 881 requiring radio and television broadcast companies to provide free air time to the COMELEC for the use of candidates for campaign and other political purposes.

Petitioner claims that it suffered losses running to several million pesos in providing COMELEC Time in connection with the 1992 presidential election and the 1995 senatorial election and that it stands to suffer even more should it be required to do so again this year. Petitioner's allegation that it will suffer losses again because it is required to provide free air time is sufficient to give it standing to question the validity of §92. 5

Airing of COMELEC Time, a

Reasonable Condition for

Grant of Petitioner's

Franchise

As pointed out in our decision in Osmeña v. COMELEC, §11(b) of R.A. No. 6646 and §90 and §92 of the B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the opportunity of candidates in an election in regard to the use of mass media for political campaigns. These statutory provisions state in relevant parts:

R.A. No. 6646

18

Sec. 11. Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

(b) for any newspapers, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.

B.P. Blg. 881, (Omnibus Election Code)

Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general circulation in every province or city; Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated. (Sec. 45, 1978 EC).

Sec. 92. Comelec time. — The commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. (Sec. 46, 1978 EC)

Thus, the law prohibits mass media from selling or donating print space and air time to the candidates and requires the COMELEC instead to procure print space and air time for allocation to the candidates. It will be noted that while §90 of B.P. Blg. 881 requires the COMELEC to procure print space which, as we have held, should be paid for, §92 states that air time shall be procured by the COMELEC free of charge.

Petitioners contend that §92 of BP Blg. 881 violates the due process clause 6 and the eminent domain provision 7 of the Constitution by taking air time from radio and television broadcasting stations without payment of just compensation. Petitioners claim that the primary source of revenue of the radio and television stations is the sale of air time to advertisers and that to require these stations to provide free air time is to authorize a taking which is not "a de minimis temporary limitation or restraint upon the use of private property." According to petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour every morning from Mondays to Fridays and one (1) hour on Tuesdays and Thursday from 7:00 to 8:00 p.m. (prime time) and, in this year's elections, it stands to lose P58,980,850.00 in view of COMELEC'S requirement that radio and television

stations provide at least 30 minutes of prime time daily for the COMELEC Time. 8

Petitioners' argument is without merit, All broadcasting, whether by radio or by television stations, is licensed by the government. Airwave frequencies have to be allocated as there are more individuals who want to broadcast than there are frequencies to assign. 9 A franchise is thus a privilege subject, among other things, to amended by Congress in accordance with the constitutional provision that "any such franchise or right granted . . . shall be subject to amendment, alteration or repeal by the Congress when the common good so requires." 10

The idea that broadcast stations may be required to provide COMELEC Time free of charge is not new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:

Sec. 49. Regulation of election propaganda through mass media. — (a) The franchise of all radio broadcasting and television stations are hereby amended so as to require each such station to furnish free of charge, upon request of the Commission [on Elections], during the period of sixty days before the election not more than fifteen minutes of prime time once a week which shall be known as "Comelec Time" and which shall be used exclusively by the Commission to disseminate vital election information. Said "Comelec Time" shall be considered as part of the public service time said stations are required to furnish the Government for the dissemination of public information and education under their respective franchises or permits.

The provision was carried over with slight modification by the 1978 Election Code (P.D. No. 1296), which provided:

Sec. 46. COMELEC Time. — The Commission [on Elections] shall procure radio and television time to be known as "COMELEC Time" which shall be allocated equally and impartially among the candidates within the area of coverage of said radio and television stations. For this purpose, the franchises of all radio broadcasting and television stations are hereby amended so as to require such stations to furnish the Commission radio or television time, free of charge, during the period of the campaign, at least once but not oftener than every other day.

Substantially the same provision is now embodied in §92 of B.P. Blg. 881.

Indeed, provisions for COMELEC Tima have been made by amendment of the franchises of radio and television broadcast stations and, until the present case was brought, such provisions had not been thought of as taking property without just compensation. Art. XII, §11 of the Constitution authorizes the amendment of franchises for "the common good." What better measure can be conceived for the common good than one for free air time for the benefit not only of candidates but even more of the public, particularly the voters, so that they will be fully informed of the issues in an election? "[I]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." 11

19

Nor indeed can there be any constitutional objection to the requirement that broadcast stations give free air time. Even in the United States, there are responsible scholars who believe that government controls on broadcast media can constitutionally be instituted to ensure diversity of views and attention to public affairs to further the system of free expression. For this purpose, broadcast stations may be required to give free air time to candidates in an election. 12 Thus, Professor Cass R. Sunstein of the University of Chicago Law School, in urging reforms in regulations affecting the broadcast industry, writes:

Elections. We could do a lot to improve coverage of electoral campaigns. Most important, government should ensure free media time for candidates. Almost all European nations make such provisions; the United States does not. Perhaps government should pay for such time on its own. Perhaps broadcasters should have to offer it as a condition for receiving a license. Perhaps a commitment to provide free time would count in favor of the grant of a license in the first instance. Steps of this sort would simultaneously promote attention to public affairs and greater diversity of view. They would also help overcome the distorting effects of "soundbites" and the corrosive financial pressures faced by candidates in seeking time on the media. 13

In truth, radio and television broadcasting companies, which are given franchises, do not own the airwaves and frequencies through which they transmit broadcast signals and images. They are merely given the temporary privilege of using them. Since a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the performance by the grantee of some form of public service. Thus, in De Villata v. Stanley, 14 a regulation requiring interisland vessels licensed to engage in the interisland trade to carry mail and, for this purpose, to give advance notice to postal authorities of date and hour of sailings of vessels and of changes of sailing hours to enable them to tender mail for transportation at the last practicable hour prior to the vessel's departure, was held to be a reasonable condition for the state grant of license. Although the question of compensation for the carriage of mail was not in issue, the Court strongly implied that such service could be without compensation, as in fact under Spanish sovereignty the mail was carried free. 15

In Philippine Long Distance Telephone Company v. NTC, 16 the Court ordered the PLDT to allow the interconnection of its domestic telephone system with the international gateway facility of Eastern Telecom. The Court cited (1) the provisions of the legislative franchise allowing such interconnection; (2) the absence of any physical, technical, or economic basis for restricting the linking up of two separate telephone systems; and (3) the possibility of increase in the volume of international traffic and more efficient service, at more moderate cost, as a result of interconnection.

Similarly, in the earlier case of PLDT v. NTC, 17 it was held:

Such regulation of the use and ownership of telecommunications systems is in the exercise of the plenary police power of the State for the promotion of

the general welfare. The 1987 Constitution recognizes the existence of that power when it provides:

Sec. 6. The use of property bears a social function, and all economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands (Article XII).

The interconnection which has been required of PLDT is a form of "intervention" with property rights dictated by "the objective of government to promote the rapid expansion of telecommunications services in all areas of the Philippines, . . . to maximize the use of telecommunications facilities available, . . . in recognition of the vital role of communications in nation building . . . and to ensure that all users of the public telecommunications service have access to all other users of the service wherever they may be within the Philippines at an acceptable standard of service and at reasonable cost" (DOTC Circular No. 90-248). Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory agency of the State, merely exercised its delegated authority to regulate the use of telecommunications networks when it decreed interconnection.

In the granting of the privilege to operate broadcast stations and thereafter supervising radio and television stations, the state spends considerable public funds in licensing and supervising such stations. 18 It would be strange if it cannot even require the licensees to render public service by giving free air time.

Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production of television programs involves large expenditure and requires the use of equipment for which huge investments have to be made. The dissent cites the claim of GMA Network that the grant of free air time to the COMELEC for the duration of the 1998 campaign period would cost the company P52,380,000, representing revenue it would otherwise earn if the air time were sold to advertisers, and the amount of P6,600,850, representing the cost of producing a program for the COMELEC Time, or the total amount of P58,980,850.

The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is based on the assumption that air time is "finished product" which, it is said, become the property of the company, like oil produced from refining or similar natural resources after undergoing a process for their production. But air time is not owned by broadcast companies. As held in Red Lion Broadcasting Co. v. F.C.C., 19 which upheld the right of a party personally attacked to reply, "licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them." Consequently, "a license permits broadcasting, but the license has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present

20

those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves." 20 As radio and television broadcast stations do not own the airwaves, no private property is taken by the requirement that they provide air time to the COMELEC.

Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that "the air lanes themselves 'are not property because they cannot be appropriated for the benefit of any individual.'" (p. 5) That means neither the State nor the stations own the air lanes. Yet the dissent also says that "The franchise holders can recover their huge investments only by selling air time to advertisers." (p. 13) If air lanes cannot be appropriated, how can they be used to produce air time which the franchise holders can sell to recover their investment? There is a contradiction here.

As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a program and it is for such items as "sets and props," "video tapes," "miscellaneous (other rental, supplies, transportation, etc.)," and "technical facilities (technical crew such as director and cameraman as well as 'on air plugs')." There is no basis for this claim. Expenses for these items will be for the account of the candidates. COMELEC Resolution No. 2983, §6(d) specifically provides in this connection:

(d) Additional services such as tape-recording or video-taping of programs, the preparation of visual aids, terms and condition thereof, and consideration to be paid therefor may be arranged by the candidates with the radio/television station concerned. However, no radio/television station shall make any discrimination among candidates relative to charges, terms, practices or facilities for in connection with the services rendered.

It is unfortunate that in the effort to show that there is taking of private property worth millions of pesos, the unsubstantiated charge is made that by its decision the Court permits the "grand larceny of precious time," and allows itself to become "the people's unwitting oppressor." The charge is really unfortunate. In Jackson v. Rosenbaun, 21 Justice Holmes was so incensed by the resistance of property owners to the erection of party walls that he was led to say in his original draft, "a statute, which embodies the community's understanding of the reciprocal rights and duties of neighboring landowners, does not need to invoke the penalty larceny of the police power in its justification." Holmes's brethren corrected his taste, and Holmes had to amend the passage so that in the end it spoke only of invoking "the police power." 22 Justice Holmes spoke of the "petty larceny" of the police power. Now we are being told of the "grand larceny [by means of the police power] of precious air time."

Giving Free Air Time a Duty

Assumed by Petitioner

Petitioners claim that §92 is an invalid amendment of R.A. No. 7252 which granted GMA Network, Inc. a franchise for the operation of radio and television broadcasting stations. They argue that although §5 of R.A. No. 7252 gives the government the power to temporarily use and operate the

stations of petitioner GMA Network or to authorize such use and operation, the exercise of this right must be compensated.

The cited provision of. R.A. No. 7252 states:

Sec. 5. Right of Government. — A special right is hereby reserved to the President of the Philippines, in times of rebellion, public peril, calamity, emergency, disaster or disturbance of peace and order, to temporarily take over and operate the stations of the grantee, to temporarily suspend the operation of any station in the interest of public safety, security and public welfare, or to authorize the temporary use and operation thereof by any agency of the Government, upon due compensation to the grantee, for the use of said stations during the period when they shall be so operated.

The basic flaw in petitioner's argument is that it assumes that the provision for COMELEC Time constitutes the use and operation of the stations of the GMA Network, Inc., This is not so. Under §92 of B.P. Blg. 881, the COMELEC does not take over the operation of radio and television stations but only the allocation of air time to the candidates for the purpose of ensuring, among other things, equal opportunity, time, and the right to reply as mandated by the Constitution. 23

Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that B.P. Blg. 881, which is said to have amended R.A. No. 7252, actually antedated it. 24 The provision of §92 of B.P. Blg. 881 must be deemed instead to be incorporated in R.A. No. 7252. And, indeed, §4 of the latter statute does.

For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render "adequate public service time" implements §92 of B.P. Blg. 881. Undoubtedly, its purpose is to enable the government to communicate with the people on matters of public interest. Thus, R.A. No. 7252 provides:

Sec. 4. Responsibility to the Public. — The grantee shall provide adequate public service time to enable the Government, through the said broadcasting stations, to reach the population on important public issues; provide at all times sound and balanced programming; promote public participation such as in community programming; assist in the functions of public information and education; conform to the ethics of honest enterprise; and not use its station for the broadcasting of obscene and indecent language, speech, act or scene, or for the dissemination of deliberately false information or willful misrepresentation, or to the detriment of the public interest, or to incite, encourage, or assist in subversive or treasonable acts. (Emphasis added).

It is noteworthy that §40 of R.A. No. 6388, from which §92 of B.P. Blg. 881 was taken, expressly provided that the COMELEC Time should "be considered as part of the public service time said stations are required to furnish the Government for the dissemination of public information and education under their respective franchises or permits." There is no reason to suppose that §92 of B.P. Blg. 881 considers the COMELEC Time therein provided to be otherwise than as a public service which petitioner is

21

required to render under §4 of its charter (R.A. No. 7252). In sum, B.P. Blg. 881, §92 is not an invalid amendment of petitioner's franchise but the enforcement of a duty voluntarily assumed by petitioner in accepting a public grant of privilege.

Thus far, we have confined the discussion to the provision of §92 of B.P. Blg. 881 for free air time without taking into account COMELEC Resolution No. 2983-A, §2 of which states:

Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station operating under franchise shall grant the Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec Time", effective February 10, 1998 for candidates for President, Vice-President and Senators, and effective March 27, 1998, for candidates for local elective offices, until May 9, 1998. (Emphasis added).

This is because the amendment providing for the payment of "just compensation" is invalid, being in contravention of §92 of B.P. Blg. 881 that radio and television time given during the period of the campaign shall be "free of charge." Indeed, Resolution No. 2983 originally provided that the time allocated shall be "free of charge," just as §92 requires such time to be given "free of charge." The amendment appears to be a reaction to petitioner's claim in this case that the original provision was unconstitutional because it allegedly authorized the taking of property without just compensation.

The Solicitor General, relying on the amendment, claims that there should be no more dispute because the payment of compensation is now provided for. It is basic, however, that an administrative agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since §2 of Resolution No. 2983-A is invalid, it cannot be invoked by the parties.

Law Allows Flextime for Programming

by Stations, Not Confiscation of

Air Time by COMELEC

It is claimed that there is no standard in the law to guide the COMELEC in procuring free air time and that "theoretically the COMELEC can demand all of the air time of such stations." 25 Petitioners do not claim that COMELEC Resolution No. 2983-A arbitrarily sequesters radio and television time. What they claim is that because of the breadth of the statutory language, the provision in question is susceptible of "unbridled, arbitrary and oppressive exercise." 26

The contention has no basis. For one, the COMELEC is required to procure free air time for candidates "within the area of coverage" of a particular radio or television broadcaster so that it cannot, for example, procure such time for candidates outside that area. At what time of the day and how much time the COMELEC may procure will have to be determined by it in relation to the overall objective of informing the public about the

candidates, their qualifications and their programs of government. As stated in Osmeña v. COMELEC, the COMELEC Time provided for in §92, as well as the COMELEC Space provided for in §90, is in lieu of paid ads which candidates are prohibited to have under §11(b) of R.A. No. 6646. Accordingly, this objective must be kept in mind in determining the details of the COMELEC Time as well as those of the COMELEC Space.

There would indeed be objection to the grant of power to the COMELEC if §92 were so detailed as to leave no room for accommodation of the demands of radio and television programming. For were that the case, there could be an intrusion into the editorial prerogatives of radio and television stations.

Differential Treatment of

Broadcast Media Justified

Petitioners complain that B.P. Blg. 881, §92 singles out radio and television stations to provide free air time. They contend that newspapers and magazines are not similarly required as, in fact, in Philippine Press Institute v. COMELEC, 27 we upheld their right to the payment of just compensation for the print space they may provide under §90.

The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the same treatment under the free speech guarantee of the Constitution as the print media. There are important differences in the characteristics of the two media, however, which justify their differential treatment for free speech purposes. Because of the physical limitations of the broadcast spectrum, the government must, of necessity, allocate broadcast frequencies to those wishing to use them. There is no similar justification for government allocation and regulation of the print media. 28

In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or licensees. The reason for this is that, as already noted, the government spends public funds for the allocation and regulation of the broadcast industry, which it does not do in the case of the print media. To require the radio and television broadcast industry to provide free air time for the COMELEC Time is a fair exchange for what the industry gets.

From another point of view, this Court has also held that because of the unique and pervasive influence of the broadcast media, "[n]ecessarily . . . the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media." 29

The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities.

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On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would he difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate, analyze, and reject the utterance. 30

Petitioners' assertion therefore that §92 of B.P. Blg. 881 denies them the equal protection of the law has no basis. In addition, their plea that §92 (free air time) and §11(b) of R.A. No. 6646 (ban on paid political ads) should be invalidated would pave the way for a return to the old regime where moneyed candidates could monopolize media advertising to the disadvantage of candidates with less resources. That is what Congress tried to reform in 1987 with the enactment of R.A. No. 6646. We are not free to set aside the judgment of Congress, especially in light of the recent failure of interested parties to have the law repealed or at least modified.

Requirement of COMELEC Time, a

Reasonable Exercise of the

State's Power to Regulate

Use of Franchises

Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-C, §4 of the Constitution does not include the power to prohibit. In the first place, what the COMELEC is authorized to supervise or regulate by Art. IX-C, §4 of the Constitution, 31 among other things, is the use by media of information of their franchises or permits, while what Congress (not the COMELEC) prohibits is the sale or donation of print space or air time for political ads. In other words, the object of supervision or regulation is different from the object of the prohibition. It is another fallacy for petitioners to contend that the power to regulate does not include the power to prohibit. This may have force if the object of the power were the same.

In the second place, the prohibition in §11(b) of R.A. No. 6646 is only half of the regulatory provision in the statute. The other half is the mandate to the COMELEC to procure print space and air time for allocation to candidates. As we said in Osmeña v. COMELEC:

The term political "ad ban" when used to describe §11(b) of R.A. No. 6646, is misleading, for even as §11(b) prohibits the sale or donation of print space and air time to political candidates, it mandates the COMELEC to procure and itself allocate to the candidates space and time in the media.

There is no suppression of political ads but only a regulation of the time and manner of advertising.

xxx xxx xxx

. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to advertise freely in the mass media, the law provides for allocation, by the COMELEC of print space and air time to give all candidates equal time and space for the purpose of ensuring "free, orderly, honest, peaceful, and credible elections."

With the prohibition on media advertising by candidates themselves, the COMELEC Time and COMELEC Space are about the only means through which candidates can advertise their qualifications and programs of government. More than merely depriving their qualifications and programs of government. More than merely depriving candidates of time for their ads, the failure of broadcast stations to provide air time unless paid by the government would clearly deprive the people of their right to know. Art III, §7 of the Constitution provides that "the right of the people to information on matters of public concern shall be recognized," while Art. XII, §6 states that "the use of property bears a social function [and] the right to own, establish, and operate economic enterprises [is] subject to the duty of the State to promote distributive justice and to intervene when the common good so demands."

To affirm the validity of §92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to see to it that the variety and vigor of public debate on issues in an election is maintained. For while broadcast media are not mere common carriers but entities with free speech rights, they are also public trustees charged with the duty of ensuring that the people have access to the diversity of views on political issues. This right of the people is paramount to the autonomy of broadcast media. To affirm the validity of §92, therefore, is likewise to uphold the people's right to information on matters of public concern. The use of property bears a social function and is subject to the state's duty to intervene for the common good. Broadcast media can find their just and highest reward in the fact that whatever altruistic service they may render in connection with the holding of elections is for that common good.

For the foregoing reasons, the petition is dismissed.

SO ORDERED.

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KILOSBAYAN V. MORATO (246 SCRA 540)

Petitioners seek reconsideration of our decision in this case. They insist that the decision in the first case has already settled (1) whether petitioner Kilosbayan, Inc. has a standing to sue and (2) whether under its charter (R.A. No. 1169, as amended) the Philippine Charity Sweepstakes Office can enter into any form of association or collaboration with any party in operating an on-line lottery. Consequently, petitioners contend, these questions can no longer be reopened.

Because two members of the Court did not consider themselves bound by the decision in the first case, petitioners suggest that the two, in joining the dissenters in the first case in reexamining the questions in the present case, acted otherwise than according to law. They cite the following statement in the opinion of the Court:

The voting on petitioners' standing in the previous case was a narrow one, with seven (7) members sustaining petitioners' standing and six (6) denying petitioners' right to bring the suit. The majority was thus a tenuous one that is not likely to be maintained in any subsequent litigation. In addition, there have been changes in the membership of the Court, with the retirement of Justices Cruz and Bidin and the appointment of the writer of this opinion and Justice Francisco. Given this fact it is hardly tenable to insist on the maintenance of the ruling as to petitioners' standing.

Petitioners claim that this statement "conveys a none too subtle suggestion, perhaps a Freudian slip, that the two new appointees, regardless of the merit of the Decision in the first Kilosbayan case against the lotto (Kilosbayan, et al. v. Guingona, 232 SCRA 110 (1994)) must of necessity align themselves with all the Ramos appointees who were dissenters in the first case and constitute the new majority in the second lotto case." And petitioners ask, "why should it be so?"

Petitioners ask a question to which they have made up an answer. Their attempt at psychoanalysis, detecting a Freudian slip where none exists, may be more revealing of their own unexpressed wish to find motives where there are none which they can impute to some members of the Court.

For the truth is that the statement is no more than an effort to explain — rather than to justify — the majority's decision to overrule the ruling in the previous case. It is simply meant to explain that because the five members of the Court who dissented in the first case (Melo, Quiason, Puno, Vitug and Kapunan, JJ.) and the two new members (Mendoza and Francisco, JJ.) thought the previous ruling to be erroneous and its reexamination not to be barred by stare decisis, res judicata or conclusiveness of judgment, or law of the case, it was hardly tenable for petitioners to insist on the first ruling.

Consequently to petitioners' question "What is the glue that holds them together," implying some ulterior motives on the part of the new majority in reexamining the two questions, the answer is: None, except a conviction on the part of the five, who had been members of the Court at the time they dissented in the first case, and the two new members that the previous

ruling was erroneous. The eighth Justice (Padilla, J.) on the other hand agrees with the seven Justices that the ELA is in a real sense a lease agreement and therefore does not violate R.A. No. 1169.

The decision in the first case was a split decision: 7-6. With the retirement of one of the original majority (Cruz, J.) and one of the dissenters (Bidin, J.) it was not surprising that the first decision in the first case was later reversed.

It is argued that, in any case, a reexamination of the two questions is barred because the PCSO and the Philippine Gaming Management Corporation made a " formal commitment not to ask for a reconsideration of the Decision in the first lotto case and instead submit a new agreement that would be in conformity with the PCSO Charter (R.A. No. 1169, as amended) and with the Decision of the Supreme Court in the first Kilosbayan case against on-line, hi-tech lotto."

To be sure, a new contract was entered into which the majority of the Court finds has been purged of the features which made the first contract objectionable. Moreover, what the PCSO said in its manifestation in the first case was the following:

1. They are no longer filing a motion for reconsideration of the Decision of this Honorable Court dated May 5, 1994, a copy of which was received on May 6, 1994.

2. Respondents PCSO and PGMC are presently negotiating a new lease agreement consistent with the authority of PCSO under its charter (R.A. No. 1169, as amended by B.P. Blg. 42) and conformable with the pronouncements of this Honorable Court in its Decision of May 5, 1995.

The PGMC made substantially the same manifestation as the PCSO.

There was thus no "formal commitment" — but only a manifestation — that the parties were not filing a motion for reconsideration. Even if the parties made a "formal commitment," the six (6) dissenting Justices certainly could not be bound thereby not to insist on their contrary view on the question of standing. Much less were the two new members bound by any "formal commitment" made by the parties. They believed that the ruling in the first case was erroneous. Since in their view reexamination was not barred by the doctrine of stare decisis, res judicata or conclusiveness of judgment or law of the case, they voted the way they did with the remaining five (5) dissenters in the first case to form a new majority of eight.

Petitioners ask, "Why should this be so?" Because, as explained in the decision, the first decision was erroneous and no legal doctrine stood in the way of its reexamination. It can, therefore, be asked "with equal candor": "Why should this not be so?"

Nor is this the first time a split decision was tested, if not reversed, in a subsequent case because of change in the membership of a court. In 1957, this Court, voting 6-5, held in Feliciano v. Aquinas, G.R. No. L-10201, Sept. 23, 1957 that the phrase "at the time of the election" in §2174 of the

24

Revised Administrative Code of 1917 meant that a candidate for municipal elective position must be at least 23 years of age on the date of the election. On the other hand, the dissenters argued that it was enough if he attained that age on the day he assumed office.

Less than three years later, the same question was before the Court again, as a candidate for municipal councilor stated under oath in her certificate of candidacy that she was eligible for that position although she attained the requisite age (23 years) only when she assumed office. The question was whether she could be prosecuted for falsification. In People v. Yang, 107 Phi. 888 (1960), the Court ruled she could not. Justice, later Chief Justice, Benison, who dissented in the first case, Feliciano v. Aquinas, supra, wrote the opinion of the Court, holding that while the statement that the accused was eligible was "inexact or erroneous, according to the majority in the Feliciano case," the accused could not be held liable for falsification, because

the question [whether the law really required candidates to have the required age on the day of the election or whether it was sufficient that they attained it at the beginning of the term of office] has not been discussed anew, despite the presence of new members; we simply assume for the purpose of this decision that the doctrine stands.

Thus because in the meantime there had been a change in the membership of the Court with the retirement of two members (Recess and Flex, JJ.) who had taken part in the decision in the first case and their replacement by new members (Barrera and Gutierrez-David, JJ.) and the fact that the vote in the first case was a narrow one (6 to 5), the Court allowed that the continuing validity of its ruling in the first case might well be doubted. For this reason it gave the accused the benefit of the doubt that she had acted in the good faith belief that it was sufficient that she was 23 years of age when she assumed office.

In that case, the change in the membership of the Court and the possibility of change in the ruling were noted without anyone — much less would-be psychoanalysts — finding in the statement of the Court any Freudian slip. The possibility of change in the rule as a result of change in membership was accepted as a sufficient reason for finding good faith and lack of criminal intent on the part of the accused.

Indeed, a change in the composition of the Court could prove the means of undoing an erroneous decision. This was the lesson of Knox v. Lee, 12 Wall. 457 (1871). The Legal Tender Acts, which were passed during the Civil War, made U.S. notes (greenbacks) legal tender for the payment of debts, public or private, with certain exceptions. The validity of the acts, as applied to preexisting debts, was challenged in Hepburn v. Griswold, 8 Wall. 603 (1869). The Court was then composed of only eight (8) Justices because of Congressional effort to limit the appointing power of President Johnson. Voting 5-3, the Court declared the acts void. Chief Justice Chase wrote the opinion of the Court in which four others, including Justice Grier, concurred. Justices Miller, Swayne and Davis dissented. A private memorandum left by the dissenting Justices described how an effort was made "to convince an aged and infirm member of the court [Justice Grier] that he had not

understood the question on which he voted," with the result that what was originally a 4-4 vote was converted into a majority (5-3) for holding the acts invalid.

On the day the decision was announced, President Grant nominated to the Court William Strong and Joseph P. Bradley to fill the vacancy caused by the resignation of Justice Grier and to restore the membership of the Court to nine. In 1871, Hepburn v. Griswold was overruled in the Legal Tender Cases, as Knox v. Lee came to be known, in an opinion by Justice Strong, with a dissenting opinion by Chief Justice Chase and the three other surviving members of the former majority. There were allegations that the new Justices were appointed for their known views on the validity of the Legal Tender Acts, just as there were others who defended the character and independence of the new Justices. History has vindicated the overruling of the Hepburn case by the new majority. The Legal Tender Cases proved to be the Court's means of salvation from what Chief Justice Hughes later described as one of the Court's "self-inflicted wounds." 1

We now consider the specific grounds for petitioners' motion for reconsideration.

I. We have held that because there are no genuine issues of constitutionality in this case, the rule concerning real party in interest, applicable to private litigation rather than the more liberal rule on standing, applies to petitioners. Two objections are made against that ruling: (1) that the constitutional policies and principles invoked by petitioners, while not supplying the basis for affirmative relief from the courts, may nonetheless be resorted to for striking down laws or official actions which are inconsistent with them and (2) that the Constitution, by guaranteeing to independent people's organizations "effective and reasonable participation at all levels of social, political and economic decision-making" (Art. XIII, §16), grants them standing to sue on constitutional grounds.

The policies and principles of the Constitution invoked by petitioner read:

Art. II, §5. The maintenance of peace and order, the protection life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

Id., §12. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

Id., §13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

Id., §17. The State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

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As already stated, however, these provisions are not self-executing. They do not confer rights which can be enforced in the courts but only provide guidelines for legislative or executive action. By authorizing the holding of lottery for charity, Congress has in effect determined that consistently with these policies and principles of the Constitution, the PCSO may be given this authority. That is why we said with respect to the opening by the PAGCOR of a casino in Cagayan de Oro, "the morality of gambling is not a justiciable issue. Gambling is not illegal per se. . . . It is left to Congress to deal with the activity as it sees fit." (Magtajas v. Pryce Properties Corp., Inc., 234 SCRA 255, 268 [1994]).

It is noteworthy that petitioners do not question the validity of the law allowing lotteries. It is the contract entered into by the PCSO and the PGMC which they are assailing. This case, therefore, does not raise issues of constitutionality but only of contract law, which petitioners, not being privies to the agreement, cannot raise.

Nor does Kilosbayan's status as a people's organization give it the requisite personality to question the validity of the contract in this case. The Constitution provides that "the State shall respect the role of independent people's organizations to enable the people to pursue and protect, within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means," that their right to "effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged." (Art. XIII, §§ 15-16)

These provisions have not changed the traditional rule that only real parties in interest or those with standing, as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases involving constitutional questions, is limited by the "case and controversy" requirement of Art. VIII, §5. This requirement lies at the very heart of the judicial function. It is what differentiates decision-making in the courts from decision-making in the political departments of the government and bars the bringing of suits by just any party.

Petitioners quote extensively from the speech of Commissioner Garcia before the Constitutional Commission, explaining the provisions on independent people's organizations. There is nothing in the speech, however, which supports their claim of standing. On the contrary, the speech points the way to the legislative and executive branches of the government, rather than to the courts, as the appropriate fora for the advocacy of petitioners' views. 2 Indeed, the provisions on independent people's organizations may most usefully be read in connection with the provision on initiative and referendum as a means whereby the people may propose or enact laws or reject any of those passed by Congress. For the fact is that petitioners' opposition to the contract in question is nothing more than an opposition to the government policy on lotteries.

It is nevertheless insisted that this Court has in the past accorded standing to taxpayers and concerned citizens in cases involving "paramount public interest." Taxpayers, voters, concerned citizens and legislators have indeed been allowed to sue but then only (1) in cases involving constitutional issues and

(2) under certain conditions. Petitioners do not meet these requirements on standing.

Taxpayers are allowed to sue, for example, where there is a claim of illegal disbursement of public funds. (Pascual v. Secretary of Public Works, 110 Phi. 331 (1960); Sanidad v. Comelec, 73 SCRA 333 (1976); Bugnay Const. & Dev. v. Laron, 176 SCRA 240 (1989); City Council of Cebu v. Cuizon, 47 SCRA 325 [1972]) or where a tax measure is assailed as unconstitutional. (VAT Cases [Tolentino v. Secretary of Finance], 235 SCRA 630 [1994]) Voters are allowed to question the validity of election laws because of their obvious interest in the validity of such laws. (Gonzales v. Comelec, 21 SCRA 774 [1967]) Concerned citizens can bring suits if the constitutional question they raise is of "transcendental importance" which must be settled early. (Emergency Powers Cases [Araneta v. Dinglasan], 84 Phi. 368 (1949); Iloilo Palay and Corn Planters Ass'n v. Feliciano, 121 Phi. 358 (1965); Philconsa v. Gimenez, 122 Phi. 894 (1965); CLU v. Executive Secretary, 194 SCRA 317 [1991]) Legislators are allowed to sue to question the validity of any official action which they claim infringes their prerogatives qua legislators. (Philconsa v. Enriquez, 235 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA 452 (1990); Tolentino v. Comelec, 41 SCRA 702 (1971); Tatad v. Garcia, G.R. No. 114222, April 16, 1995 (Mendoza, J., concurring))

Petitioners do not have the same kind of interest that these various litigants have. Petitioners assert an interest as taxpayers, but they do not meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v. Comelec, 95 SCRA 392, 403 (1980), to wit:

While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se, is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained. (Emphasis added)

Petitioners' suit does not fall under any of these categories of taxpayers' suits.

Neither do the other cases cited by petitioners support their contention that taxpayers have standing to question government contracts regardless of whether public funds are involved or not. In Gonzales v. National Housing, Corp., 94 SCRA 786 (1979), petitioner filed a taxpayer's suit seeking the annulment of a contract between the NHC and a foreign corporation. The

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case was dismissed by the trial court. The dismissal was affirmed by this Court on the grounds of res judicata and pendency of a prejudicial question, thus avoiding the question of petitioner's standing.

On the other hand, in Gonzales v. Raquiza, 180 SCRA 254 (1989), petitioner sought the annulment of a contract made by the government with a foreign corporation for the purchase of road construction equipment. The question of standing was not discussed, but even if it was, petitioner's standing could be sustained because he was a minority stockholder of the Philippine National Bank, which was one of the defendants in the case.

In the other case cited by petitioners, City Council of Cebu v. Cuizon, 47 SCRA 325 (1972), members of the city council were allowed to sue to question the validity of a contract entered into by the city government for the purchase of road construction equipment because their contention was that the contract had been made without their authority. In addition, as taxpayers they had an interest in seeing to it that public funds were spent pursuant to an appropriation made by law.

But, in the case at bar, there is an allegation that public funds are being misapplied or misappropriated. The controlling doctrine is that of Gonzales v. Marcos, 65 SCRA 624 (1975) where it was held that funds raised from contributions for the benefit of the Cultural Center of the Philippines were not public funds and petitioner had no standing to bring a taxpayer's suit to question their disbursement by the President of the Philippines.

Thus, petitioners' right to sue as taxpayers cannot be sustained. Nor as concerned citizens can they bring this suit because no specific injury suffered by them is alleged. As for the petitioners, who are members of Congress, their right to sue as legislators cannot be invoked because they do not complain of any infringement of their rights as legislators.

Finally, in Valmonte v. PCSO, G.R. No. 78716, September 22, 1987, we threw out a petition questioning another form of lottery conducted by the PCSO on the ground that petitioner, who claimed to be a "citizen, lawyer, taxpayer and father of three minor children," had no direct and personal interest in the lottery. We said: "He must be able to show, not only that the law is invalid, but also that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute complained of." In the case at bar, petitioners have not shown why, unlike petitioner in the Valmonte case, they should be accorded standing to bring this suit.

The case of Oposa v. Factoran, Jr. 224 SCRA 792 (1993) is different. Citizens' standing to bring a suit seeking the cancellation of timber licenses was sustained in that case because the Court considered Art. II, §16 a right-conferring provision which can be enforced in the courts. That provision states:

The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. (Emphasis)

In contrast, the policies and principles invoked by petitioners in this case do not permit of such categorization.

Indeed, as already stated, petitioners' opposition is not really to the validity of the ELA but to lotteries which they regard to be immoral. This is not, however, a legal issue, but a policy matter for Congress to decide and Congress has permitted lotteries for charity.

Nevertheless, although we have concluded that petitioners do not have standing, we have not stopped there and dismissed their case. For in the view we take, whether a party has a cause of action and, therefore, is a real party in interest or one with standing to raise a constitutional question must turn on whether he has a right which has been violated. For this reason the Court has not ducked the substantive issues raised by petitioners.

II. R.A. No. 1169, as amended by B.P No . 42, states:

§1. The Philippine Charity Sweepstakes Office. — The Philippine Charity Sweepstakes Office, hereinafter designated the Office, shall be the principal government agency for raising and providing for funds for health programs, medical assistance and services and charities of national character, and as such shall have the general powers conferred in section thirteen of Act Numbered One Thousand Four Hundred Fifty-Nine, as amended, and shall have the authority:

A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such frequency and manner, as shall be determined, and subject to such rules and regulations as shall be promulgated by the Board of Directors.

B. Subject to the approval of the Minister of Human Settlements, to engage in health and welfare-related investments, programs, projects and activities which may be profit-oriented, by itself or in collaboration, association or joint venture with any person, association, company or entity, whether domestic or foreign, except for the activities mentioned in the preceding paragraph (A), for the purpose of providing for permanent and continuing sources of funds for health programs, including the expansion of existing ones, medical assistance and services, and/or charitable grants: Provided, That such investments will not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development Authority.

Petitioners insist on the ruling in the previous case that the PCSO cannot hold and conduct charity sweepstakes, lotteries and other similar activities in collaboration, association or joint venture with any other party because of the clause "except for the activities mentioned in the preceding paragraph (A)" in paragraph (B) of §1. Petitioners contend that the ruling is

27

the law of this case because the parties are the same and the case involves the same issue, i.e., the meaning of this statutory provision.

The "law of the case" doctrine is inapplicable, because this case is not a continuation of the first one. Petitioners also say that inquiry into the same question as to the meaning of the statutory provision is barred by the doctrine of res judicata. The general rule on the "conclusiveness of judgment," however, is subject to the exception that a question may be reopened if it is a legal question and the two actions involve substantially different claims. This is generally accepted in American law from which our Rules of Court was adopted. (Montana v. United States, 440 U.S. 59 L.Ed.2d 147, 210 (1979); RESTATEMENT OF THE LAW 2d, ON JUDGMENTS, §28; P. BATOR, D. MELTZER, P. MISHKIN AND D. SHAPIRO, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1058, n.2 [3rd Ed., 1988]) There is nothing in the record of this case to suggest that this exception is inapplicable in this jurisdiction.

Indeed, the questions raised in this case are legal questions and the claims involved are substantially different from those involved in the prior case between the parties. As already stated, the ELA is substantially different from the Contract of Lease declared void in the first case.

Borrowing from the dissenting opinion of Justice Feliciano, petitioners argue that the phrase "by itself or in collaboration, association or joint venture with any other party" qualifies not only §1 (B) but also §1 (A), because the exception clause ("except for the activities mentioned in the preceding paragraph [A]") "operates, as it were, as a renvoi clause which refers back to Section 1(A) and in this manner avoids the necessity of simultaneously amending the text of Section 1(A)."

This interpretation, however, fails to take into account not only the location of the phrase in paragraph (B), when it should be in paragraph (A) had that been the intention of the lawmaking authority, but also the phrase "by itself." In other words, under paragraph (B), the PCSO is prohibited from "engag[ing] in . . . investments, programs, projects and activities" if these involve sweepstakes races, lotteries and other similar activities not only "in collaboration, association or joint venture" with any other party but also "by itself." Obviously, this prohibition cannot apply when the PCSO conducts these activities itself. Otherwise, what paragraph (A) authorizes the PCSO to do, paragraph (B) would prohibit.

The fact is that the phrase in question does not qualify the authority of the PCSO under paragraph (A), but rather the authority granted to it by paragraph (B). The amendment of paragraph (B) by B.P. Blg. 42 was intended to enable the PCSO to engage in certain investments, programs, projects and activities for the purpose of raising funds for health programs and charity. That is why the law provides that such investments by the PCSO should "not compete with the private sector in areas where investments are adequate as may be determined by the National Economic and Development Authority." Justice Davide, then an Assemblyman, made a proposal which was accepted, reflecting the understanding that the bill they were discussing concerned the authority of the PCSO to invest in the

business of others. The following excerpt from the Record of the Batasan Pambansa shows this to be the subject of the discussion:

MR. DAVIDE. May I introduce an amendment after "adequate". The intention of the amendment is not to leave the determination of whether it is adequate or not to anybody. And my amendment is to add after "adequate" the words AS MAY BE DETERMINED BY THE NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY. As a mater of fact, it will strengthen the authority to invest in these areas, provided that the determination of whether the private sector's activity is already adequate must be determined by the National Economic and Development Authority.

Mr. ZAMORA. Mr. Speaker, the committee accepts the proposed amendment.

MR. DAVIDE. Thank you, Mr. Speaker.

(2 RECORD OF THE BATASAN PAMBANSA, Sept. 6, 1979,p. 1007)

Thus what the PCSO is prohibited from doing is from investing in a business engaged in sweepstakes races, lotteries and other similar activities. It is prohibited from doing so whether "in collaboration, association or joint venture" with others or "by itself." This seems to be the only possible interpretation of §1 (A) and (B) in light of its text and its legislative history. That there is today no other entity engaged in sweepstakes races, lotteries and the like does not detract from the validity of this interpretation.

III. The Court noted in its decision that the provisions of the first contract, which were considered to be features of a joint venture agreement, had been removed in the new contract. For instance, §5 of the ELA provides that in the operation of the on-line lottery, the PCSO must employ "its own competent and qualified personnel." Petitioners claim, however, that the "contemporaneous interpretation" of PGMC officials of this provision is otherwise. They cite the testimony of Glen Barroga of the PGMC before a Senate committee to the effect that under the ELA the PGMC would be operating the lottery system "side by side" with PCSO personnel as part of the transfer of technology.

Whether the transfer of technology would result in a violation of PCSO's franchise should be determined by facts and not by what some officials of the PGMC state by way of opinion. In the absence of proof to the contrary, it must be presumed that §5 reflects the true intention of the parties. Thus, Art. 1370 of the Civil Code says that "If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control." The intention of the parties must be ascertained from their "contemporaneous and subsequent acts." (Art. 1371; Atlantic Gulf Co. v. Insular Government, 10 Phil. 166 [1908]) It cannot simply be judged from what one of them says. On the other hand, the claim of third parties, like petitioners, that the clause on upgrading of equipment would enable the parties after a while to change the contract and enter into something else in violation of the law is mere speculation and cannot be a basis for judging the validity of the contract.

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IV. It is contended that §1 of E.O. No. 301 covers all types of "contract[s] for public services or for furnishing of supplies, materials and equipment to the government or to any of its branches, agencies or instrumentalities" and not only contracts of purchase and sale. Consequently, a lease of equipment, like the ELA, must be submitted to public bidding in order to be valid. This contention is based on two premises: (1) that §1 of E.O. No. 301 applies to any contract whereby the government acquires title to or the use of the equipment and (2) that the words "supplies," "materials," and "equipment" are distinct from each other so that when an exception in §1 speaks of "supplies," it cannot be construed to mean "equipment."

Petitioners' contention will not bear analysis. For example, the term "supplies" is used in paragraph (a), which provides that a contract for the furnishing of "supplies" in order to meet an emergency is exempt from public bidding. Unless "supplies" is construed to include "equipment," however, the lease of heavy equipment needed for rescue operations in case of a calamity will have to be submitted to public bidding before it can be entered into by the government.

In dissent Justice Feliciano says that in such a situation the government can simply resort to expropriation, paying compensation afterward. This is just like purchasing the equipment through negotiation when the question is whether the purchase should be by public bidding, not to mention the fact that the power to expropriate may not be exercised when the government can very well negotiate with private owners.

Indeed, there are fundamental difficulties in simultaneously contending (1) that E.O. No. 301, §1 covers both contracts of sale and lease agreements and (2) that the words "supplies," "materials" and "equipment" can not be interchanged. Thus, under paragraph (b) of §1, public bidding is not required "whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service." Following petitioners' theory, there should be a public bidding before the government can enter into a contract for the lease of bulldozers and dredging equipment even if these are urgently needed in areas ravaged by lahar because, first, lease contracts are covered by the general rule and, second, the exception to public bidding in paragraph (b) covers only "supplies" but not equipment.

To take still another example. Paragraph (d), which does away with the requirement of public bidding "whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or nonconforming to specifications." Again, following the theory of the petitioners, a contract for the lease of equipment cannot be entered into even if there are no bids because, first, lease contracts are governed by the general rule on public bidding and, second, the exception to public bidding in paragraph (d) applies only to contracts for the furnishing of "supplies."

Other examples can be given to show the absurdity of interpreting §1 as applicable to any contract for the furnishing of supplies, materials and

equipment and of considering the words "supplies," "materials" and "equipment" to be not interchangeable. Our ruling that §1 of E.O. No. 301 does not cover the lease of equipment avoids these fundamental difficulties and is supported by the text of §1, which is entitled "Guidelines for Negotiated Contracts" and by the fact that the only provisions of E.O. No. 301 on leases, namely, §§6 and 7, concern the lease of buildings by or to the government. Thus the text of §1 reads:

§1. Guidelines for Negotiated Contracts. — Any provision of law, decree, executive order or other issuances to the contrary notwithstanding, no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities shall be renewed or entered into without public bidding, except under any of the following situations:

a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property;

b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service;

c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government;

d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exhorbitant or non-conforming to specifications;

e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned; and

f. Whenever the purchase is made from an agency of the government.

Indeed, the purpose for promulgating E.O. No. 301 was merely to decentralize the system of reviewing negotiated contracts of purchase for the furnishing of supplies, materials and equipment as well as lease contracts of buildings. Theretofore, E.O. No. 298, promulgated on August 12, 1940, required consultation with the Secretary of Justice and the Department Head concerned and the approval of the President of the Philippines before contracts for the furnishing of supplies, materials and equipment could be made on a negotiated basis, without public bidding. E.O. No. 301 changed this by providing as follows:

§2. Jurisdiction over Negotiated Contracts. — In line with the principles of decentralization and accountability, negotiated contracts for public services or for furnishing supplies, materials or equipment may be entered into by the department or agency head or the governing board of the government-owned or controlled corporation concerned, without need of prior approval

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by higher authorities, subject to availability of funds, compliance with the standards or guidelines prescribed in Section 1 hereof, and to the audit jurisdiction of the commission on Audit in accordance with existing rules and regulations.

Negotiated contracts involving P2,000,000 up to P10,000,000 shall be signed by the Secretary and two other Undersecretaries.

xxx xxx xxx

§7. Jurisdiction Over Lease Contracts. — The heads of agency intending to rent privately-owned buildings or spaces for their use, or to lease out government-owned buildings or spaces for private use, shall have authority to determine the reasonableness of the terms of the lease and the rental rates thereof, and to enter into such lease contracts without need of prior approval by higher authorities, subject to compliance with the uniform standards or guidelines established pursuant to Section 6 hereof by the DPWH and to the audit jurisdiction of COA or its duly authorized representative in accordance with existing rules and regulations.

In sum, E.O. No. 301 applies only to contracts for the purchase of supplies, materials and equipment, and it was merely to change the system of administrative review of emergency purchases, as theretofore prescribed by E.O. No. 298, that E.O. No. 301 was issued on July 26, 1987. Part B of this Executive Order applies to leases of buildings, not of equipment, and therefore does not govern the lease contract in this case. Even if it applies, it does not require public bidding for entering into it.

Our holding that E.O. No. 301, §1 applies only to contracts of purchase and sale is conformable to P.D. No. 526, promulgated on August 2, 1974, which is in pari materia. P.D. No. 526 requires local governments to hold public bidding in the "procurement of supplies." By specifying "procurement of supplies" and excepting from the general rule "purchases" when made under certain circumstances, P.D. No. 526, §12 indicates quite clearly that it applies only to contracts of purchase and sale. This provision reads:

§12. Procurement without public bidding. — Procurement of supplies may be made without the benefit of public bidding in the following modes:

(1) Personal canvass of responsible merchants;

(2) Emergency purchases;

(3) Direct purchases from manufacturers or exclusive distributors;

(4) Thru the Bureau of Supply Coordination; and

(5) Purchase from other government entities or foreign governments.

Sec. 3 broadly defines the term "supplies" as including —

everything except real estate, which may be needed in the transaction of public business, or in the pursuit of any undertaking, project, or activity,

whether of the nature of equipment, furniture, stationery, materials for construction, or personal property of any sort, including non-personal or contractual services such as the repair and maintenance of equipment and furniture, as well as trucking, hauling, janitorial, security, and related or analogous services.

Thus, the texts of both E.O. No. 301, §1 and of P.D. No. 526, §§1 and 12, make it clear that only contracts for the purchase and sale of supplies, materials and equipment are contemplated by the rule concerning public biddings.

Finally, it is contended that equipment leases are attractive and commonly used in place of contracts of purchase and sale because of "multifarious credit and tax constraints" and therefore could not have been left out from the requirement of public bidding. Obviously these credit and tax constraints can have no attraction to the government when considering the advantages of sale over lease of equipment. The fact that lease contracts are in common use is not a reason for implying that the rule on public bidding applies not only to government purchases but also to lease contracts. For the fact also is that the government leases equipment, such as copying machines, personal computers and the like, without going through public bidding.

FOR THE FOREGOING REASONS, the motion for reconsideration of petitioners is DENIED with finality.

SO ORDERED.

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FRANCISCO V. HOR (415 SCRA 44)

Facts: On 28 November 2001, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Porceedings, superceding the previous House Impeachment Rules approved by the 11th Congress. On 22 July 2002, the House of Representatives adopted a Resolution, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF). On 2 June 2003, former President Joseph E. Estrada filed an impeachment complaint (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices of the Supreme Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes." The complaint was endorsed by House Representatives, and was referred to the House Committee on Justice on 5 August 2003 in accordance with Section 3(2) of Article XI of the Constitution. The House Committee on Justice ruled on 13 October 2003 that the first impeachment complaint was "sufficient in form," but voted to dismiss the same on 22 October 2003 for being insufficient in substance. Four months and three weeks since the filing of the first complaint or on 23 October 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint was filed with the Secretary General of the House by House Representatives against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. The second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least 1/3 of all the Members of the House of Representatives. Various petitions for certiorari, prohibition, and mandamus were filed with the Supreme Court against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year."

Within a period of 1 year, 2 impeachment proceedings were filed against Supreme Court Chief Justice Hilario Davide. The justiciable controversy in this case was the constitutionality of the subsequent filing of a second complaint to controvert the rules of impeachment provided for by law.

Issue: Whether the power of judicial review extends to those arising from impeachment proceedings.

Held: The Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution. The "moderating power" to "determine the proper allocation of powers" of the different branches of government and "to direct the course of government along constitutional channels" is inherent in all courts as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are legally demandable and enforceable." As indicated in Angara v. Electoral Commission, judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle

of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves. The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.

The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation, our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. The people expressed their will when they instituted the above-mentioned safeguards in the Constitution. This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or "judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.

Issue: Whether or not the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives is constitutional, and whether the resolution thereof is a political question — h; as resulted in a political crisis.

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Held: Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representativesare unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, is barred under paragraph 5, section 3 of Article XI of the Constitution.

REASONING:In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people.

At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality. There exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it bythe Constitution.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be necessary… to initiate impeachment proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.

Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period.

The Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government.

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PHIL ASSOC OF COLLEGES AND UNIVERSITIES V. SEC. OF EDUCATION (97 PHIL 806)

The petitioning colleges and universities request that Act No. 2706 as amended by Act No. 3075 and Commonwealth Act No. 180 be declared unconstitutional, because: A. They deprive owners of schools and colleges as well as teachers and parents of liberty and property without due process of law; B. They deprive parents of their natural rights and duty to rear their children for civic efficiency; and C. Their provisions conferring on the Secretary of Education unlimited power and discretion to prescribe rules and standards constitute an unlawful delegation of legislative power.

A printed memorandum explaining their position in extenso is attached to the record.

The Government's legal representative submitted a mimeographed memorandum contending that, (1) the matter constitutes no justiciable controversy exhibiting unavoidable necessity of deciding the constitutional questions; (2) petitioners are in estoppel to challenge the validity of the said acts; and (3) the Acts are constitutionally valid.

Petitioners submitted a lengthy reply to the above arguments.

Act No. 2706 approved in 1917 is entitled, "An Act making the inspection and recognition of private schools and colleges obligatory for the Secretary of Public Instruction." Under its provisions, the Department of Education has, for the past 37 years, supervised and regulated all private schools in this country apparently without audible protest, nay, with the general acquiescence of the general public and the parties concerned.

It should be understandable, then, that this Court should be doubly reluctant to consider petitioner's demand for avoidance of the law aforesaid, specially where, as respondents assert, petitioners suffered no wrong—nor allege any—from the enforcement of the criticized statute.

It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallability of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. (Cooley Constitutional Limitations, 8th Ed., Vol. I, p. 332.)

When a law has been long treated as constitutional and important rights have become dependent thereon, the Court may refuse to consider an attack on its validity. (C. J. S. 16, p. 204.)

As a general rule, the constitutionality of a statute will be passed on only if, and to the extent that, it is directly and necessarily involved in a justiciable controversy and is essential to the protection of the rights of the parties concerned. (16 C. J. S., p. 207.)

In support of their first proposition petitioners contend that the right of a citizen to own and operate a school is guaranteed by the Constitution, and any law requiring previous governmental approval or permit before such

person could exercise said right, amounts to censorship of previous restraint, a practice abhorent to our system of law and government. Petitioners obviously refer to section 3 of Act No. 2706 as amended which provides that before a private school may be opened to the public it must first obtain a permit from the Secretary of Education. The Solicitor General on the other hand points out that none of the petitioners has cause to present this issue, because all of them have permits to operate and are actually operating by virtue of their permits.1 And they do not assert that the respondent Secretary of Education has threatened to revoke their permits. They have suffered no wrong under the terms of law—and, naturally need no relief in the form they now seek to obtain.

It is an established principle that to entitle a private individual immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is interest common to all members of the public. (Ex parte Levitt, 302 U. S. 633 82 L. Ed. 493.)

Courts will not pass upon the constitutionality of a law upon the complaint of one who fails to show that he is injured by its operation. (Tyler vs. Judges, 179 U. S. 405; Hendrick vs. Maryland, 235 U. S. 610; Coffman vs. Breeze Corp., 323 U. S. 316-325.)

The power of courts to declare a law unconstitutional arises only when the interests of litigant require the use of that judicial authority for their protection against actual interference, a hypothetical threat being insufficient. (United Public Works vs. Mitchell, 330 U .S. 75; 91 L. Ed. 754.)

Bona fide suit.—Judicial power is limited to the decision of actual cases and controversies. The authority to pass on the validity of statutes is incidental to the decision of such cases where conflicting claims under the Constitution and under a legislative act assailed as contrary to the Constitution are raised. It is legitimate only in the last resort, and as necessity in the determination of real, earnest, and vital controversy between litigants. (Tañada and Fernando, Constitution of the Philippines, p. 1138.)

Mere apprehension that the Secretary of Education might under the law withdraw the permit of one of petitioners does not constitute a justiciable controversy. (Cf. Com. ex rel Watkins vs. Winchester Waterworks (Ky.) 197 S. W. 2d. 771.)

And action, like this, is brought for a positive purpose, nay, to obtain actual and positive relief. (Salonga vs. Warner Barnes, L-2245, January, 1951.) Courts do not sit to adjudicate mere academic questions to satisfy scholarly interest therein, however intellectually solid the problem may be. This is specially true where the issues "reach constitutional dimensions, for then there comes into play regard for the court's duty to avoid decision of constitutional issues unless avoidance becomes evasion." (Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep., May 23, 1995, Law Ed., Vol. 99, p. 511.)

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The above notwithstanding, in view of the several decisions of the United States Supreme Court quoted by petitioners, apparently outlawing censorship of the kind objected to by them, we have decided to look into the matter, lest they may allege we refuse to act even in the face of clear violation of fundamental personal rights of liberty and property.

Petitioners complain that before opening a school the owner must secure a permit from the Secretary of Education. Such requirement was not originally included in Act No. 2706. It was introduced by Commonwealth Act No. 180 approved in 1936. Why?

In March 1924 the Philippine Legislature approved Act No. 3162 creating a Board of Educational Survey to make a study and survey of education in the Philippines and of all educational institutions, facilities and agencies thereof. A Board chairmaned by Dr. Paul Munroe, Columbia University, assisted by a staff of carefully selected technical members performed the task, made a five-month thorough and impartial examination of the local educational system, and submitted a report with recommendations, printed as a book of 671 pages. The following paragraphs are taken from such report:

PRIVATE-ADVENTURE SCHOOLS

There is no law or regulation in the Philippine Islands today to prevent a person, however disqualified by ignorance, greed, or even immoral character, from opening a school to teach the young. It it true that in order to post over the door "Recognized by the Government," a private adventure school must first be inspected by the proper Government official, but a refusal to grant such recognition does not by any means result in such a school ceasing to exist. As a matter of fact, there are more such unrecognized private schools than of the recognized variety. How many, no one knows, as the Division of Private Schools keeps records only of the recognized type.

Conclusion.—An unprejudiced consideration of the fact presented under the caption Private Adventure Schools leads but to one conclusion, viz.: the great majority of them from primary grade to university are money-making devices for the profit of those who organize and administer them. The people whose children and youth attend them are not getting what they pay for. It is obvious that the system constitutes a great evil. That it should be permitted to exist with almost no supervision is indefensible. The suggestion has been made with the reference to the private institutions of university grade that some board of control be organized under legislative control to supervise their administration. The Commission believes that the recommendations it offers at the end of this chapter are more likely to bring about the needed reforms.

Recommendations.—The Commission recommends that legislation be enacted to prohibit the opening of any school by an individual or organization without the permission of the Secretary of Public Instruction. That before granting such permission the Secretary assure himself that such school measures up to proper standards in the following respects, and

that the continued existence of the school be dependent upon its continuing to conform to these conditions:

(1) The location and construction of the buildings, the lighting and ventilation of the rooms, the nature of the lavatories, closets, water supply, school furniture and apparatus, and methods of cleaning shall be such as to insure hygienic conditions for both pupils and teachers.

(2) The library and laboratory facilities shall be adequate to the needs of instruction in the subjects taught.

(3) The classes shall not show an excessive number of pupils per teacher. The Commission recommends 40 as a maximum.

(4) The teachers shall meet qualifications equal to those of teachers in the public schools of the same grade.

xxx xxx xxx

In view of these findings and recommendations, can there be any doubt that the Government in the exercise of its police power to correct "a great evil" could validly establish the "previous permit" system objected to by petitioners? This is what differentiates our law from the other statutes declared invalid in other jurisdictions. And if any doubt still exists, recourse may now be had to the provision of our Constitution that "All educational institutions shall be under the supervision and subject to regulation by the State." (Art. XIV, sec. 5.) The power to regulate establishments or business occupations implies the power to require a permit or license. (53 C. J. S. 4.)

What goes for the "previous permit" naturally goes for the power to revoke such permit on account of violation of rules or regulations of the Department.

II. This brings us to the petitioners' third proposition that the questioned statutes "conferring on the Secretary of Education unlimited power and discretion to prescribe rules and standards constitute an unlawful delegation of legislative power."

This attack is specifically aimed at section 1 of Act No. 2706 which, as amended, provides:

It shall be the duty of the Secretary of Public Instruction to maintain a general standard of efficiency in all private schools and colleges of the Philippines so that the same shall furnish adequate instruction to the public, in accordance with the class and grade of instruction given in them, and for this purpose said Secretary or his duly authorized representative shall have authority to advise, inspect, and regulate said schools and colleges in order to determine the efficiency of instruction given in the same,

"Nowhere in this Act" petitioners argue "can one find any description, either general or specific, of what constitutes a 'general standard of efficiency.' Nowhere in this Act is there any indication of any basis or condition to ascertain what is 'adequate instruction to the public.' Nowhere in this Act is

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there any statement of conditions, acts, or factors, which the Secretary of Education must take into account to determine the 'efficiency of instruction.'"

The attack on this score is also extended to section 6 which provides:

The Department of Education shall from time to time prepare and publish in pamphlet form the minimum standards required of primary, intermediate, and high schools, and colleges granting the degrees of Bachelor of Arts, Bachelor of Science, or any other academic degree. It shall also from time to time prepare and publish in pamphlet form the minimum standards required of law, medical, dental, pharmaceutical, engineering, agricultural and other medical or vocational schools or colleges giving instruction of a technical, vocational or professional character.

Petitioners reason out, "this section leaves everything to the uncontrolled discretion of the Secretary of Education or his department. The Secretary of Education is given the power to fix the standard. In plain language, the statute turns over to the Secretary of Education the exclusive authority of the legislature to formulate standard. . . .."

It is quite clear the two sections empower and require the Secretary of Education to prescribe rules fixing minimum standards of adequate and efficient instruction to be observed by all such private schools and colleges as may be permitted to operate. The petitioners contend that as the legislature has not fixed the standards, "the provision is extremely vague, indefinite and uncertain"—and for that reason constitutionality objectionable. The best answer is that despite such alleged vagueness the Secretary of Education has fixed standards to ensure adequate and efficient instruction, as shown by the memoranda fixing or revising curricula, the school calendars, entrance and final examinations, admission and accreditation of students etc.; and the system of private education has, in general, been satisfactorily in operation for 37 years. Which only shows that the Legislature did and could, validly rely upon the educational experience and training of those in charge of the Department of Education to ascertain and formulate minimum requirements of adequate instruction as the basis of government recognition of any private school.

At any rate, petitioners do not show how these standards have injured any of them or interfered with their operation. Wherefore, no reason exists for them to assail the validity of the power nor the exercise of the power by the Secretary of Education.

True, the petitioners assert that, the Secretary has issued rules and regulations "whimsical and capricious" and that such discretionary power has produced arrogant inspectors who "bully heads and teachers of private schools." Nevertheless, their remedy is to challenge those regulations specifically, and/or to ring those inspectors to book, in proper administrative or judicial proceedings—not to invalidate the law. For it needs no argument, to show that abuse by the officials entrusted with the execution of a statute does not per se demonstrate the unconstitutionality of such statute.

Anyway, we find the defendants' position to be sufficiently sustained by the decision in Alegra vs. Collector of Customs, 53 Phil., 394 upon holding the statute that authorized the Director of Agriculture to "designate standards for the commercial grades of abaca, maguey and sisal" against vigorous attacks on the ground of invalid delegation of legislative power.

Indeed "adequate and efficient instruction" should be considered sufficient, in the same way as "public welfare" "necessary in the interest of law and order" "public interest" and "justice and equity and substantial merits of the case" have been held sufficient as legislative standards justifying delegation of authority to regulate. (See Tañada and Fernando, Constitution of the Philippines, p. 793, citing Philippine cases.)

On this phase of the litigation we conclude that there has been no undue delegation of legislative power.

In this connection, and to support their position that the law and the Secretary of Education have transcended the governmental power of supervision and regulation, the petitioners appended a list of circulars and memoranda issued by the said Department. However they failed to indicate which of such official documents was constitutionally objectionable for being "capricious," or pain "nuisance"; and it is one of our decisional practices that unless a constitutional point is specifically raised, insisted upon and adequately argued, the court will not consider it. (Santiago vs. Far Eastern, 73 Phil., 408.)

We are told that such list will give an idea of how the statute has placed in the hands of the Secretary of Education complete control of the various activities of private schools, and why the statute should be struck down as unconstitutional. It is clear in our opinion that the statute does not in express terms give the Secretary complete control. It gives him powers to inspect private schools, to regulate their activities, to give them official permits to operate under certain conditions, and to revoke such permits for cause. This does not amount to complete control. If any of such Department circulars or memoranda issued by the Secretary go beyond the bounds of regulation and seeks to establish complete control, it would surely be invalid. Conceivably some of them are of this nature, but besides not having before us the text of such circulars, the petitioners have omitted to specify. In any event with the recent approval of Republic Act No. 1124 creating the National Board of Education, opportunity for administrative correction of the supposed anomalies or encroachments is amply afforded herein petitioners. A more expeditious and perhaps more technically competent forum exists, wherein to discuss the necessity, convenience or relevancy of the measures criticized by them. (See also Republic Act No. 176.)

If however the statutes in question actually give the Secretary control over private schools, the question arises whether the power of supervision and regulation granted to the State by section 5 Article XIV was meant to include control of private educational institutions. It is enough to point out that local educators and writers think the Constitution provides for control of Education by the State. (See Tolentino, Government of the Philippine

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Constitution, Vol. II, p. 615; Benitez, Philippine Social Life and Progress, p. 335.)

The Constitution (it) "provides for state control of all educational institutions" even as it enumerates certain fundamental objectives of all education to wit, the development of moral character, personal discipline, civic conscience and vocational efficiency, and instruction in the duties of citizenship. (Malcolm & Laurel, Philippine Constitutional Law, 1936.)

The Solicitor General cities many authorities to show that the power to regulate means power to control, and quotes from the proceedings of the Constitutional Convention to prove that State control of private education was intended by the organic law. It is significant to note that the Constitution grants power to supervise and to regulate. Which may mean greater power than mere regulation.

III. Another grievance of petitioners—probably the most significant—is the assessment of 1 per cent levied on gross receipts of all private schools for additional Government expenses in connection with their supervision and regulation. The statute is section 11-A of Act No. 2706 as amended by Republic Act No. 74 which reads as follows:

SEC. 11-A. The total annual expense of the Office of Private Education shall be met by the regular amount appropriated in the annual Appropriation Act: Provided, however, That for additional expenses in the supervision and regulation of private schools, colleges and universities and in the purchase of textbook to be sold to student of said schools, colleges and universities and President of the Philippines may authorize the Secretary of Instruction to levy an equitable assessment from each private educational institution equivalent to one percent of the total amount accruing from tuition and other fees: . . . and non-payment of the assessment herein provided by any private school, college or university shall be sufficient cause for the cancellation by the Secretary of Instruction of the permit for recognition granted to it.

Petitioners maintain that this is a tax on the exercise of a constitutional right—the right to open a school, the liberty to teach etc. They claim this is unconstitutional, in the same way that taxes on the privilege of selling religious literature or of publishing a newspaper—both constitutional privileges—have been held, in the United States, to be invalid as taxes on the exercise of a constitutional right.

The Solicitor General on the other hand argues that insofar as petitioners' action attempts to restrain the further collection of the assessment, courts have no jurisdiction to restrain the collection of taxes by injunction, and in so far as they seek to recover fees already paid the suit, it is one against the State without its consent. Anyway he concludes, the action involving "the legality of any tax impost or assessment" falls within the original jurisdiction of Courts of First Instance.

There are good grounds in support of Government's position. If this levy of 1 per cent is truly a mere fee—and not a tax—to finance the cost of the Department's duty and power to regulate and supervise private schools,

the exaction may be upheld; but such point involves investigation and examination of relevant data, which should best be carried out in the lower courts. If on the other hand it is a tax, petitioners' issue would still be within the original jurisdiction of the Courts of First Instance.

The last grievance of petitioners relates to the validity of Republic Act No. 139 which in its section 1 provides:

The textbooks to be used in the private schools recognized or authorized by the government shall be submitted to the Board (Board of Textbooks) which shall have the power to prohibit the use of any of said textbooks which it may find to be against the law or to offend the dignity and honor of the government and people of the Philippines, or which it may find to be against the general policies of the government, or which it may deem pedagogically unsuitable.

This power of the Board, petitioners aver, is censorship in "its baldest form". They cite two U. S. cases (Miss. and Minnesota) outlawing statutes that impose previous restraints upon publication of newspapers, or curtail the right of individuals to disseminate teachings critical of government institutions or policies.

Herein lies another important issue submitted in the cause. The question is really whether the law may be enacted in the exercise of the State's constitutional power (Art. XIV, sec. 5) to supervise and regulate private schools. If that power amounts to control of private schools, as some think it is, maybe the law is valid. In this connection we do not share the belief that section 5 has added new power to what the State inherently possesses by virtue of the police power. An express power is necessarily more extensive than a mere implied power. For instance, if there is conflict between an express individual right and the express power to control private education it cannot off-hand be said that the latter must yield to the former—conflict of two express powers. But if the power to control education is merely implied from the police power, it is feasible to uphold the express individual right, as was probably the situation in the two decisions brought to our attention, of Mississippi and Minnesota, states where constitutional control of private schools is not expressly produced.

However, as herein previously noted, no justiciable controversy has been presented to us. We are not informed that the Board on Textbooks has prohibited this or that text, or that the petitioners refused or intend to refuse to submit some textbooks, and are in danger of losing substantial privileges or rights for so refusing.

The average lawyer who reads the above quoted section of Republic Act 139 will fail to perceive anything objectionable. Why should not the State prohibit the use of textbooks that are illegal, or offensive to the Filipinos or adverse to governmental policies or educationally improper? What's the power of regulation and supervision for? But those trained to the investigation of constitutional issues are likely to apprehend the danger to civil liberties, of possible educational dictatorship or thought control, as petitioners' counsel foresee with obvious alarm. Much depends, however, upon the execution and implementation of the statute. Not that

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constitutionality depends necessarily upon the law's effects. But if the Board on Textbooks in its actuations strictly adheres to the letter of the section and wisely steers a middle course between the Scylla of "dictatorship" and the Charybdis of "thought control", no cause for complaint will arise and no occasion for judicial review will develop. Anyway, and again, petitioners now have a more expeditious remedy thru an administrative appeal to the National Board of Education created by Republic Act 1124.

Of course it is necessary to assure herein petitioners, that when and if, the dangers they apprehend materialize and judicial intervention is suitably invoked, after all administrative remedies are exhausted, the courts will not shrink from their duty to delimit constitutional boundaries and protect individual liberties.

IV. For all the foregoing considerations, reserving to the petitioners the right to institute in the proper court, and at the proper time, such actions as may call for decision of the issue herein presented by them, this petition for prohibition will be denied. So ordered.

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[DIGEST]: DAVID V. ARROYO (489 SCRA 162)

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: “The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,” and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.

On the same day, the President issued G. O. No. 5 implementing PP 1017.

Respondents stated that the proximate cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New People’s Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President Arroyo. They considered the aim to oust or assassinate the President and take-over the reigns of government as a clear and present danger.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly.

Issue:

Whether the issuance of PP 1021 renders the petitions moot and academic

Held:

The power of judicial review may be exercised only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question of constitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the determination of the case itself.

An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is “definite and concrete, touching the legal relations of parties having adverse legal

interest;” a real and substantial controversy admitting of specific relief. The Solicitor General refutes the existence of such actual case or controversy, contending that the present petitions were rendered “moot and academic” by President Arroyo’s issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness.

The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that “an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative.”

The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.

All the foregoing exceptions are present here and justify the Supreme Court’s assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the public’s interest, involving as they do the people’s basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional guarantees. And lastly, respondents’ contested actions are capable of repetition. Certainly, the petitions are subject to judicial review.

Issue:

Whether petitioners have legal standing

Held:

Locus standi is defined as “a right of appearance in a court of justice on a given question.” In private suits, standing is governed by the “real-parties-in interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that “every action must

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be prosecuted or defended in the name of the real party in interest.” Accordingly, the “real-party-in interest” is “the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.” Succinctly put, the plaintiff’s standing is based on his own right to the relief sought.

Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. However, to prevent just about any person from seeking judicial interference in any official policy or act with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public service the Supreme Court laid down the more stringent “direct injury” test. For a private individual to invoke the judicial power to determine the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a general interest common to all members of the public. However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the exercise of its discretion in cases of transcendental importance and far-reaching implications.

By way of summary, the following rules may be culled from the cases decided by the Supreme Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met:

(1) the cases involve constitutional issues;(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and(5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators.

Issue:

whether or not the Supreme Court may review the factual bases of the President’s exercise of his Commander-in-Chief power

Held:

Yes. In IBP v. Zamora, while the Court considered the President’s “calling-out” power as a discretionary power solely vested in his wisdom, it stressed that this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. This ruling is mainly a result of the Court’s reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only “to settle actual controversies involving rights which are legally demandable and enforceable,” but also “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of

jurisdiction on the part of any branch or instrumentality of the government.” The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the government. It speaks of judicial prerogative not only in terms of power but also of duty.

As to how the Court may inquire into the President’s exercise of power, Lansang v. Garcia adopted the test that judicial inquiry can go no further than to satisfy the Court not that the President’s decision is correct, but that the President did not act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness. In Integrated Bar of the Philippines, the Court further ruled that it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis and that if he fails, by way of proof, to support his assertion, then the Supreme Court cannot undertake an independent investigation beyond the pleadings.

Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid.

Issue:

whether PP 1017 and G.O. No. 5 are unconstitutional

Held:

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only “spoken words” and again, that “overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct.” Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be used “sparingly and only as a last resort,” and is “generally disfavored;” The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court.

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The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute “on its face,” not merely “as applied for” so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the “chilling;” deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad law’s “very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression.

The task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists.

Related to the “overbreadth” doctrine is the “void for vagueness doctrine” which holds that “a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application.” It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing “on their faces” statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again, petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017.

Constitutional Basis of PP 1017

First provision:

“by virtue of the power vested upon me by Section 18, Article VII … do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion”

Second provision:

“and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction;”

Third provision:

“as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency.”

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive Secretary, the Supreme Court held that Section 18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the 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 or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

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The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a “sequence” of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora, the Court ruled that the only criterion for the exercise of the calling-out power is that “whenever it becomes necessary,” the President may call the armed forces “to prevent or suppress lawless violence, invasion or rebellion.” Are these conditions present in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to declare a “state of rebellion” (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyo’s authority to declare a “state of rebellion” emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order.

President Arroyo’s declaration of a “state of rebellion” was merely an act declaring a status or condition of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article

XII, a provision on the State’s extraordinary power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so.

The declaration of Martial Law is a “warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law.”

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires.

(a) Arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.

Second Provision: “Take Care” Power

The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested, the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he will, among others, “execute its

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laws.” In the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country, including the Philippine National Police under the Department of Interior and Local Government.

Petitioners argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the clause “to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction.”

Is it within the domain of President Arroyo to promulgate “decrees”?

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order.

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders.

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution.

The assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate “decrees.” Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that “[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives.” To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not only to enforce obedience “to all the laws and to all decrees x x x” but also to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected with public interest.

Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency powers.

A distinction must be drawn between the President’s authority to declare “a state of national emergency” and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war.

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(2) In times of war or other national emergency, the Congress 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 Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to “other national emergency.” President Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:(1) There must be a war or other emergency.(2) The delegation must be for a limited period only.(3) The delegation must be subject to such restrictions as the Congress may prescribe.(4) The emergency powers must be exercised to carry out a national policy declared by Congress.

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the “the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof.

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception. Emergencies have been occasioned by a wide range of situations, classifiable under three (3) principal heads: a) economic, b) natural disaster, and c) national security.“Emergency,” as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.

In Araneta v. Dinglasan, the Supreme Court emphasized that legislative power, through which extraordinary measures are exercised, remains in Congress even in times of crisis.

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, the Supreme Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress.