law phil

EN BANC
ANAK MINDANAO PARTYLIST GROUP, as represented by Rep. Mujiv S. Hataman, and MAMALO DESCENDANTS ORGANIZATION, INC., as represented by its Chairman Romy Pardi, Petitioners, PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, - versus AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, THE EXECUTIVE TINGA, CHICO-NAZARIO, GARCIA, VELASCO, JR.,

G.R. No. 166052

Present:

SECRETARY, THE HON. EDUARDO R. ERMITA, and THE SECRETARY OF AGRARIAN/LAND REFORM, THE HON. RENE C. VILLA,

Respondents.

NACHURA, and REYES, JJ.

Promulgated:

August 29, 2007 x----------------------------------------------------------------------------------------x

DECISION

CARPIO MORALES, J.: Petitioners Anak Mindanao Party-List Group (AMIN) and Mamalo Descendants Organization, Inc. (MDOI) assail the constitutionality of Executive Order (E.O.) Nos. 364 and 379, both issued in 2004, via the present Petition for Certiorari and Prohibition with prayer for injunctive relief.

E.O. No. 364, which President Gloria Macapagal-Arroyo issued on September 27, 2004, reads:
EXECUTIVE ORDER NO. 364 TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO THE DEPARTMENT OF LAND REFORM WHEREAS, one of the five reform packages of the Arroyo administration is Social Justice and Basic [N]eeds;

WHEREAS, one of the five anti-poverty measures for social justice is asset reform; WHEREAS, asset reforms covers [sic] agrarian reform, urban land reform, and ancestral domain reform; WHEREAS, urban land reform is a concern of the Presidential Commission [for] the Urban Poor (PCUP) and ancestral domain reform is a concern of the National Commission on Indigenous Peoples (NCIP); WHEREAS, another of the five reform packages of the Arroyo administration is AntiCorruption and Good Government; WHEREAS, one of the Good Government reforms of the Arroyo administration is rationalizing the bureaucracy by consolidating related functions into one department; WHEREAS, under law and jurisprudence, the President of the Philippines has broad powers to reorganize the offices under her supervision and control; NOW[,] THEREFORE[,] I, Gloria Macapagal-Arroyo, by the powers vested in me as President of the Republic of the Philippines, do hereby order: SECTION 1. The Department of Agrarian Reform is hereby transformed into the Department of Land Reform. It shall be responsible for all land reform in the country, including agrarian reform, urban land reform, and ancestral domain reform. SECTION 2. The PCUP is hereby placed under the supervision and control of the Department of Land Reform. The Chairman of the PCUP shall be ex-officio Undersecretary of the Department of Land Reform for Urban Land Reform. SECTION 3. The NCIP is hereby placed under the supervision and control of the Department of Land Reform. The Chairman of the NCIP shall be ex-officio Undersecretary of the Department of Land Reform for Ancestral Domain Reform. SECTION 4. The PCUP and the NCIP shall have access to the services provided by the Departments Finance, Management and Administrative Office; Policy, Planning and Legal Affairs Office, Field Operations and Support Services Office, and all other offices of the Department of Land Reform. SECTION 5. All previous issuances that conflict with this Executive Order are hereby repealed or modified accordingly. SECTION 6. This Executive Order takes effect immediately. (Emphasis and underscoring supplied)

E.O. No. 379, which amended E.O. No. 364 a month later or on October 26, 2004, reads:

EXECUTIVE ORDER NO. 379 AMENDING EXECUTIVE ORDER NO. 364 ENTITLED TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO THE DEPARTMENT OF LAND REFORM WHEREAS, Republic Act No. 8371 created the National Commission on Indigenous Peoples; WHEREAS, pursuant to the Administrative Code of 1987, the President has the continuing authority to reorganize the administrative structure of the National Government. NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by the Constitution and existing laws, do hereby order: Section 1. Amending Section 3 of Executive Order No. 364 . Section 3 of Executive Order No. 364, dated September 27, 2004 shall now read as follows: Section 3. The National Commission on Indigenous Peoples (NCIP) shall be an attached agency of the Department of Land Reform. Section 2. Compensation. The Chairperson shall suffer no diminution in rank and salary. Section 3. Repealing Clause. All executive issuances, rules and regulations or parts thereof which are inconsistent with this Executive Order are hereby revoked, amended or modified accordingly. Section 4. Effectivity . This Executive Order shall take effect immediately. (Emphasis and underscoring in the original)

Petitioners contend that the two presidential issuances are unconstitutional for violating:
THE CONSTITUTIONAL PRINCIPLES OF SEPARATION OF POWERS AND OF THE RULE OF LAW[;] THE CONSTITUTIONAL SCHEME AND POLICIES FOR AGRARIAN REFORM, URBAN LAND REFORM, INDIGENOUS PEOPLES RIGHTS AND ANCESTRAL DOMAIN[; AND] THE CONSTITUTIONAL RIGHT OF THE PEOPLE AND THEIR ORGANIZATIONS TO EFFECTIVE AND REASONABLE PARTICIPATION IN DECISION-MAKING, INCLUDING THROUGH ADEQUATE CONSULTATION[.][1]

By Resolution of December 6, 2005, this Court gave due course to the Petition and required the submission of memoranda, with which petitioners and respondents complied on March 24, 2006 and April 11, 2006, respectively. The issue on the transformation of the Department of Agrarian Reform (DAR) into the Department of Land Reform (DLR) became moot and academic, however, the department having reverted to its former name by virtue of E.O. No. 456[2] which was issued on August 23, 2005. The Court is thus left with the sole issue of the legality of placing the Presidential Commission[3] for the Urban Poor (PCUP) under the supervision and control of the DAR, and the National Commission on Indigenous Peoples (NCIP) under the DAR as an attached agency. Before inquiring into the validity of the reorganization, petitioners locus standi or legal standing, inter alia,[4] becomes a preliminary question. The Office of the Solicitor General (OSG), on behalf of respondents, concedes that AMIN[5] has the requisite legal standing to file this suit as member[6] of Congress. Petitioners find it impermissible for the Executive to intrude into the domain of the Legislature. They posit that an act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress.[7] They add that to the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution.[8]

Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.[9] The OSG questions, however, the standing of MDOI, a registered peoples organization of Teduray and Lambangian tribesfolk of (North) Upi and South Upi in the province of Maguindanao. As co-petitioner, MDOI alleges that it is concerned with the negative impact of NCIPs becoming an attached agency of the DAR on the processing of ancestral domain claims. It fears that transferring the NCIP to the DAR would affect the processing of ancestral domain claims filed by its members. Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[10] It has been held that a party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[11] For a concerned party to be allowed to raise a constitutional question, it must show

that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action.[12] An examination of MDOIs nebulous claims of negative impact and probable setbacks[13] shows that they are too abstract to be considered judicially cognizable. And the line of causation it proffers between the challenged action and alleged injury is too attenuated. Vague propositions that the implementation of the assailed orders will work injustice and violate the rights of its members cannot clothe MDOI with the requisite standing. Neither would its status as a peoples organization vest it with the legal standing to assail the validity of the executive orders.[14] La Bugal-Blaan Tribal Association, Inc. v. Ramos, [15] which MDOI cites in support of its claim to legal standing, is inapplicable as it is not similarly situated with the therein petitioners who alleged personal and substantial injury resulting from the mining activities permitted by the assailed statute. And so is Cruz v. Secretary of Environment and Natural Resources,[16] for the indigenous peoples leaders and organizations were not the petitioners therein, who necessarily had to satisfy the locus standi requirement, but were intervenors who sought and were allowed to be impleaded, not to assail but to defend the constitutionality of the statute. Moreover, MDOI raises no issue of transcendental importance to justify a relaxation of the rule on legal standing. To be accorded standing on the ground of transcendental importance, Senate of the Philippines v. Ermita[17] requires that the following elements must be established: (1) the public character of the funds or other assets involved in the case, (2) the presence of a clear case of disregard of a

constitutional or statutory prohibition by the public respondent agency or instrumentality of government, and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised. The presence of these elements MDOI failed to establish, much less allege. Francisco, Jr. v. Fernando[18] more specifically declares that the transcendental importance of the issues raised must relate to the merits of the petition.

This Court, not being a venue for the ventilation of generalized grievances, must thus deny adjudication of the matters raised by MDOI. Now, on AMINs position. AMIN charges the Executive Department with transgression of the principle of separation of powers. Under the principle of separation of powers, Congress, the President, and the Judiciary may not encroach on fields allocated to each of them. The legislature is generally limited to the enactment of laws, the executive to the enforcement of laws, and the judiciary to their interpretation and application to cases and controversies. The principle presupposes mutual respect by and between the executive, legislative and judicial departments of the government and calls for them to be left alone to discharge their duties as they see fit.[19] AMIN contends that since the DAR, PCUP and NCIP were created by statutes,[20] they can only be transformed, merged or attached by statutes, not by mere executive orders. While AMIN concedes that the executive power is vested in the President[21] who,

as Chief Executive, holds the power of control of all the executive departments, bureaus, and offices,[22] it posits that this broad power of control including the power to reorganize is qualified and limited, for it cannot be exercised in a manner contrary to law, citing the constitutional duty[23] of the President to ensure that the laws, including those creating the agencies, be faithfully executed.

AMIN cites the naming of the PCUP as a presidential commission to be clearly an extension of the President, and the creation of the NCIP as an independent agency under the Office of the President.[24] It thus argues that since the legislature had seen fit to create these agencies at separate times and with distinct mandates, the President should respect that legislative disposition. In fine, AMIN contends that any reorganization of these administrative agencies should be the subject of a statute. AMINs position fails to impress.

The Constitution confers, by express provision, the power of control over executive departments, bureaus and offices in the President alone. And it lays down a limitation on the legislative power.
The line that delineates the Legislative and Executive power is not indistinct. Legislative power is the authority, under the Constitution, to make laws, and to alter and repeal them. The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general and comprehensive. The legislative body possesses plenary power for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest.

While Congress is vested with the power to enact laws, the President executes the laws. The executive power is vested in the President. It is generally defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing their due observance. As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of its officials. Corollary to the power of control, the President also has the duty of supervising and enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively.[25] (Italics omitted, underscoring supplied)

The Constitutions express grant of the power of control in the President justifies an executive action to carry out reorganization measures under a broad authority of law. [26]

In enacting a statute, the legislature is presumed to have deliberated with full knowledge of all existing laws and jurisprudence on the subject.[27] It is thus reasonable to conclude that in passing a statute which places an agency under the Office of the President, it was in accordance with existing laws and jurisprudence on the Presidents power to reorganize. In establishing an executive department, bureau or office, the legislature necessarily ordains an executive agencys position in the scheme of administrative structure. Such determination is primary,[28] but subject to the Presidents continuing authority to reorganize the administrative structure. As far as bureaus, agencies or offices in the executive department are concerned, the power of control may justify the President to deactivate the functions of a particular office. Or a law may expressly grant the President the broad authority to carry out reorganization measures.[29] The

Administrative Code of 1987 is one such law:[30]

SEC. 30. Functions of Agencies under the Office of the President . Agencies under the Office of the President shall continue to operate and function in accordance with their respective charters or laws creating them, except as otherwise provided in this Code or by law. SEC. 31. Continuing Authority of the President to Reorganize his Office . The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions: (1) Restructure the internal organization of the Office of the President Proper, including the immediate Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by abolishing, consolidating, or merging units thereof or transferring functions from one unit to another; (2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments and Agencies; and (3) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other departments or agencies.[31] (Italics in the original; emphasis and underscoring supplied)

In carrying out the laws into practical operation, the President is best equipped to assess whether an executive agency ought to continue operating in accordance with its charter or the law creating it. This is not to say that the legislature is incapable of making a similar assessment and appropriate action within its plenary power. The Administrative Code of 1987 merely underscores the need to provide the President with suitable solutions to situations on hand to meet the exigencies of the service that may call for the exercise of the power of control.
x x x The law grants the President this power in recognition of the recurring need of every President to reorganize his office to achieve simplicity, economy and efficiency. The Office of the President is the nerve center of the Executive Branch. To remain effective and efficient, the Office of the President must be capable of being shaped and reshaped by the President in the manner he deems fit to carry out his directives and policies. After all, the Office of the President is the command post of the President. This is the rationale behind the Presidents continuing authority to reorganize the administrative structure of the Office of the President.[32]

The Office of the President consists of the Office of the President proper and the agencies under it.[33] It is not disputed that PCUP and NCIP were formed as agencies under the Office of the President.[34] The Agencies under the Office of the President refer to those offices placed under the chairmanship of the President, those under the supervision and control of the President, those under the administrative supervision of the Office of the President, those attached to the Office for policy and program coordination, and those that are not placed by law or order creating them under any special department.[35] As thus provided by law, the President may transfer any agency under the Office of the President to any other department or agency, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency. Gauged against these guidelines,[36] the challenged executive orders may not be said to have been issued with grave abuse of discretion or in violation of the rule of law. The references in E.O. 364 to asset reform as an anti-poverty measure for social justice and to rationalization of the bureaucracy in furtherance of good government[37] encapsulate a portion of the existing policy in the Executive Office. As averred by the OSG, the President saw it fit to streamline the agencies so as not to hinder the delivery of crucial social reforms.[38] The consolidation of functions in E.O. 364 aims to attain the objectives of simplicity, economy and efficiency as gathered from the provision granting PCUP and NCIP access to the range of services provided by the DARs technical offices and support systems.[39]

The characterization of the NCIP as an independent agency under the Office of the President does not remove said body from the Presidents control and supervision with respect to its performance of administrative functions. So it has been opined:
That Congress did not intend to place the NCIP under the control of the President in all instances is evident in the IPRA itself, which provides that the decisions of the NCIP in the exercise of its quasijudicial functions shall be appealable to the Court of Appeals, like those of the National Labor Relations Commission (NLRC) and the Securities and Exchange Commission (SEC). Nevertheless, the NCIP, although independent to a certain degree, was placed by Congress under the office of the President and, as such, is still subject to the Presidents power of control and supervision granted under Section 17, Article VII of the Constitution with respect to its performance of administrative functions[.][40] (Underscoring supplied)

In transferring the NCIP to the DAR as an attached agency, the President effectively tempered the exercise of presidential authority and considerably recognized that degree of independence. The Administrative Code of 1987 categorizes administrative relationships into (1) supervision and control, (2) administrative supervision, and (3) attachment.[41] With respect to the third category, it has been held that an attached agency has a larger measure of independence from the Department to which it is attached than one which is under departmental supervision and control or administrative supervision. This is borne out by the lateral relationship between the Department and the attached agency. The attachment is merely for policy and program coordination.[42] Indeed, the essential autonomous character of a board is not negated by its attachment to a commission.[43] AMIN argues, however, that there is an anachronism of sorts because there can be no policy and program coordination between conceptually different areas of reform. It claims that the new framework subsuming agrarian reform, urban land reform and ancestral domain reform is fundamentally incoherent in view of the widely different

contexts.[44] And it posits that it is a substantive transformation or reorientation that runs contrary to the constitutional scheme and policies. AMIN goes on to proffer the concept of ordering the law[45] which, so it alleges, can be said of the Constitutions distinct treatment of these three areas, as reflected in separate provisions in different parts of the Constitution.[46] It argues that the Constitution did not intend an over-arching concept of agrarian reform to encompass the two other areas, and that how the law is ordered in a certain way should not be undermined by mere executive orders in the guise of administrative efficiency. The Court is not persuaded.

The interplay of various areas of reform in the promotion of social justice is not something implausible or unlikely.[47] Their interlocking nature cuts across labels and works against a rigid pigeonholing of executive tasks among the members of the Presidents official family. Notably, the Constitution inhibited from identifying and compartmentalizing the composition of the Cabinet. In vesting executive power in one person rather than in a plural executive, the evident intention was to invest the power holder with energy.[48] AMIN takes premium on the severed treatment of these reform areas in marked provisions of the Constitution. It is a precept, however, that inferences drawn from title, chapter or section headings are entitled to very little weight.[49] And so must reliance on sub-headings,[50] or the lack thereof, to support a strained deduction be given the weight of helium.

Secondary aids may be consulted to remove, not to create doubt.[51] AMINs thesis unsettles, more than settles the order of things in construing the Constitution. Its interpretation fails to clearly establish that the so-called ordering or arrangement of provisions in the Constitution was consciously adopted to imply a signification in terms of government hierarchy from where a constitutional mandate can per se be derived or asserted. It fails to demonstrate that the ordering or layout was not simply a matter of style in constitutional drafting but one of intention in government structuring. With its inherent ambiguity, the proposed interpretation cannot be made a basis for declaring a law or governmental act unconstitutional. A law has in its favor the presumption of constitutionality. For it to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The ground for nullity must be clear and beyond reasonable doubt.[52] Any reasonable doubt should, following the universal rule of legal hermeneutics, be resolved in favor of the constitutionality of a law.[53]

Ople v. Torres[54] on which AMIN relies is unavailing. In that case, an administrative order involved a system of identification that required a delicate adjustment of various contending state policies properly lodged in the legislative arena. It was declared unconstitutional for dealing with a subject that should be covered by law and for violating the right to privacy. In the present case, AMIN glaringly failed to show how the reorganization by executive fiat would hamper the exercise of citizens rights and privileges. It rested on the ambiguous conclusion that the reorganization jeopardizes economic, social and cultural rights. It intimated, without expounding, that the agendum behind the issuances is to weaken the indigenous peoples rights in favor of the mining industry. And it raised

concerns about the possible retrogression in DARs performance as the added workload may impede the implementation of the comprehensive agrarian reform program. AMIN has not shown, however, that by placing the NCIP as an attached agency of the DAR, the President altered the nature and dynamics of the jurisdiction and adjudicatory functions of the NCIP concerning all claims and disputes involving rights of indigenous cultural communities and

indigenous peoples. Nor has it been shown, nay alleged, that the reorganization was made in bad faith.[55] As for the other arguments raised by AMIN which pertain to the wisdom or soundness of the executive decision, the Court finds it unnecessary to pass upon them. The raging debate on the most fitting framework in the delivery of social services is endless in the political arena. It is not the business of this Court to join in the fray. Courts have no judicial power to review cases involving political questions and, as a rule, will desist from taking cognizance of speculative or hypothetical cases, advisory opinions and cases that have become moot.[56] Finally, a word on the last ground proffered for declaring the unconstitutionality of the assailed issuances that they violate Section 16, Article XIII of the Constitution[57] on the peoples right to participate in decision-making through adequate consultation mechanisms. The framers of the Constitution recognized that the consultation mechanisms were already operating without the States action by law, such that the role of the State would be mere facilitation, not necessarily creation of these consultation mechanisms. The State provides the support, but eventually it is the people, properly organized in their associations, who can assert the right and pursue the objective. Penalty for failure on the part of the government to consult could only be reflected in the ballot box and would not nullify government action.[58]

WHEREFORE, the petition is DISMISSED. Executive Order Nos. 364 and 379

issued on September 27, 2004 and October 26, 2004, respectively, are declared not unconstitutional.

SO ORDERED.

CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING CONSUELO Associate Justice SANTIAGO Associate Justice

YNARES-

ANGELINA GUTIERREZ

SANDOVAL-

Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIAMARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

DANTE O. TINGA ADOLFO S. AZCUNA Associate Justice Associate Justice

CANCIO C. GARCIA MINITA V. CHICO-NAZARIO Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

RUBEN T. REYES Associate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO Chief Justice

[1] [2]

Rollo, p. 6.

Entitled RENAMING THE DEPARTMENT OF LAND REFORM BACK TO DEPARTMENT OF AGRARIAN REFORM which declared that agrarian reform goes beyond just land reform but includes the totality of all factors and support services designed to lift the economic status of the beneficiaries.
[3] [4] Formerly Committee until modified by Memorandum Order No. 68 issued on January 22, 1987.

As there is no disagreement between the parties over the rest of the requisites for a valid exercise of judicial review, discussion on the same shall be unnecessary, as deemed by the Court. Vide Pimentel, Jr. v. Aguirre, G.R. No. 132988, July 19, 2000, 336 SCRA 201, 213. Anak Mindanao is a registered party-list group with one seat in the House of Representatives occupied by Rep. Mujiv S. Hataman whose constituency includes indigenous peoples (Lumads), peasants and urban poor in Mindanao.
[5]

Vide discussion in Senate of the Philippines v. Ermita, G.R. No. 169777, July 14, 2006, 495 SCRA 170, for a discussion on the entitlement of a party-list organization to participate in the legislative process vis--vis the intertwining rights of its representative/s.
[6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18] [19] [20]

Philconsa v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506. Pimentel, Jr. v. Office of the Executive Secretary , G.R. No. 158088, July 6, 2005, 462 SCRA 622. Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307 (2000). Francisco, Jr. v. The House of Representatives , 460 Phil. 830, 893 (2003). Vide Agan, Jr. v. Phil.International Air Terminals Co., Inc. , 450 Phil 744 (2003).

Vide Telecom and Broadcast Attys. of the Phils., Inc. v. COMELEC , 352 Phil. 153, 168 (1998); vide also Lozada v. Comelec, 205 Phil. 283 (1983) on the need to establish concrete injury. Rollo, pp. 5-6. Vide Sanlakas v. Executive Secretary , 466 Phil. 482, 508 (2004) citing Kilosbayan v. Morato, G.R. No. 118910, November 16, 1995, 250 SCRA 130. 465 Phil. 860 (2004). 400 Phil. 904 (2000). G.R. No. 169777, April 20, 2006, 488 SCRA 1. G.R. No. 166501, November 16, 2006, 507 SCRA 173. Vide Atitiw v. Zamora, G.R. No. 143374, September 30, 2005, 471 SCRA 329, 345-346.

The DAR was created by Republic Act No. 6389 (1971); the PCUP by Executive Order No. 82 (1986) as modified by Memorandum Order No. 68 (1987) in Pres. Aquinos exercise of legislative

powers under Proclamation No. 3, and Republic Act No. 7279 (1992); the NCIP by Republic Act No. 8371 (1997).
[21] [22] [23] [24] [25] [26] [27] [28]

Constitution, Art. VII, Sec. 1. Id., Art. VII, Sec. 17. Ibid. Republic Act No. 8371 (1997), vide Sec. 40. Ople v. Torres, 354 Phil. 948, 966-968 (1998). Bagaoisan v. National Tobacco Administration, 455 Phil. 761 (2003).

Didipio Earth-Savers Multi-Purpose Association, Inc. (DESAMA) v. Gozun, G.R. No. 157882, March 30, 2006, 485 SCRA 586. Vide Eugenio v. Civil Service Commission, 312 Phil. 1145, 1152 (1995) which quotes Am Jur 2d on Public Officers and Employees, viz: Except for such offices as are created by the Constitution, the creation of public offices is primarily a legislative function. In so far [sic] as the legislative power in this respect is not restricted by constitutional provisions, it is supreme, and the legislature may decide for itself what offices are suitable, necessary or convenient.
[29] [30] [31] [32] [33] [34] [35]

Vide Buklod ng Kawaning EIIB v. Hon. Sec. Zamora, 413 Phil. 281, 291 (2001). Id. at 294. Executive Order No. 292 (1987), Book III, Chapter 10. Domingo v. Hon. Zamora, 445 Phil. 7, 13 (2003). Executive Order No. 292 (1987), Book III, Chapter 8, Sec. 21. Vide Executive Order No. 82 (1986), Sec. 1; Republic Act No. 8371 (1997), Sec. 40.

Executive Order No. 292 (1987), Book III, Chapter 8, Sec. 23. The President shall, by executive order, assign offices and agencies not otherwise assigned by law to any department, or indicate to which department a government corporation or board may be attached. (Id., Book IV, Chapter 1. Sec. 5) Bagaoisan v. National Tobacco Administration, supra at 776, adds that the numbered paragraphs are not in the nature of provisos that unduly limit the aim and scope of the grant to the President of the power to reorganize but are to be viewed in consonance therewith.
[36] [37] [38] [39] [40] [41] [42] [43] [44]

Executive Order No. 364 (2004), perambulatory clauses. Rollo, p. 130. Executive Order No. 364 (2004), Sec. 4 & perambulatory clauses.

Separate Opinion of Justice Santiago M. Kapunan in Cruz v. Secretary of Environment and Natural Resources, supra at 1087-1088. Executive Order No. 292 (1987), Book IV, Chapter 7, Sec. 38. Beja, Sr. v. Court of Appeals, G.R. No. 97149, March 31, 1992, 207 SCRA 689. Eugenio v. Civil Service Commission, supra at 1155.

Rollo, Memorandum for Petitioners, pp. 85, 99. Particularly between agrarian reform and ancestral domain, (rural-based) on the one hand, and urban land reform (urban-based), on the other

hand; and between agricultural land (DARs concern) and non-agricultural land (concern of PCUP and NCIP, the latter dealing mostly with timber & forest), citing Luz Farms v. Secretary of the Department of Agrarian Reform, G.R. No. 86889, December 4, 1990, 192 SCRA 51. Id. at 99-100 citing Waller, AO, An Introduction to Law, 7th Ed. (1995), p. 57. Petitioners attributed the elaboration of the concept to Louis Waller who stated that the modern system of ordering involves an understanding of certain thought devices with their appropriate names, which lawyers manufactured in the process of creating the law. The function of all legal concepts is to enable discussion about the regulation of human behavior to be carried on in a sensible fashion. And new thinking may produce new classifications of legal rules to replace wholly or in part those which today seem so firmly established. (Underscoring supplied).
[45] [46] On Agrarian Reform Art. XIII, Secs. 4-8. On Urban Land Reform Art. XIII, Secs. 9-10; On Indigenous Peoples Rights Art. XIII, Sec. 6; Art. II, Sec. 22; Art. XII, Sec. 5; Art. XIV, Sec. 17; Art. XVI, Sec. 12. Also, Art. VI, Sec. 5 (2) on the erstwhile system of sectoral representation providing for separate representation of peasant, urban poor and indigenous cultural communities.

E.g., Constitution, Art. XIII, Sec. 6 which reads: The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands.
[47] [48]

Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary 793

(2003). Black, Handbook on the Construction and Interpretation of the Laws 258-259 (1911); Crawford, The Construction of Statutes 359-360 (1940); vide the Concurring and Dissenting Opinion of Justice (now Chief Justice) Reynato S. Puno in Santiago v. Comelec, 336 Phil. 848, 911 (1997).
[49] [50] [51] [52]

Found particularly in Article XIII of the Constitution. People v. Yabut, 58 Phil. 499 (1933). Beltran v. Secretary of Health, G.R. No. 133640, November 25, 2005, 476 SCRA 168, 199Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227 SCRA 100, Supra note 25.

200.
[53]

107-108.
[54] [55]

Cf. Canonizado v. Hon. Aguirre, 380 Phil. 280, 296 (2000); Larin v. Executive Secretary , 345 Phil. 962, 980 (1997) wherein it was held that reorganization is regarded as valid provided it is pursued in good faith and, as a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to make bureaucracy more efficient.
[56] [57]

Cutaran v. DENR, 403 Phil. 654, 662-663 (2001).

The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.
[58]

Vide Bernas, The Intent of the 1986 Constitution Writers 999, 1003-1005 (1995).

Today is Monday, September 10, 2012

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 178552 October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners , vs. ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178554 KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLUKMU), represented by its National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director Daisy Arago, Petitioners, vs. HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 178581 BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners , vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-inChief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178890 KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners, vs.

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-inChief, EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179157 THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEA III and WIGBERTO E. TAADA, Petitioners , vs. EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC), Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179461 BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,

vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-inChief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. DECISION CARPIO MORALES, J.: Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of 2007,1 signed into law on March 6, 2007. Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR), represented by their respective officers 3 who are also bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554. The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by their respective officers,4 and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church Peoples Response (PCPR), which were represented by their respective officers 5 who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890. On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition docketed as G.R. No. 179157. Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly based in the Southern Tagalog Region, 7 and individuals8 followed suit by filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581. Impleaded as respondents in the various petitions are the Anti-Terrorism Council 9 composed of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon. The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements. The petitions fail. Petitioners resort to certiorari is improper Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasijudicial functions. Section 1, Rule 65 of the Rules of Court is clear: Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction. The impropriety of certiorari as a remedy aside, the petitions fail just the same. In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case. 10 In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous. Petitioners lack locus standi Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. 11 Anak Mindanao Party-List Group v. The Executive Secretary 12 summarized the rule on locus standi, thus: Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. [A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of. For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.) Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government, especially the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers. While Chavez v. PCGG13 holds that transcendental public importance dispenses with the

requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi. Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA 9372. KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been subjected to "close security surveillance by state security forces," their members followed by "suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military build." They likewise claim that they have been branded as "enemies of the [S]tate." 14 Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners have yet to show any connection between the purported "surveillance" and the implementation of RA 9372. BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondents alleged action of tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is tantamount to the effects of proscription without following the procedure under the law. 15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations. The Court cannot take judicial notice of the alleged "tagging" of petitioners. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in

part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge.16 (emphasis and underscoring supplied.) No ground was properly established by petitioners for the taking of judicial notice. Petitioners apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging. The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their organization and members. While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America17 (US) and the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and NPA as terrorist organizations.19 Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under RA 9372. Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan, 20 urged the government to resume peace negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the policy statement of the Aquino Administration 21 of resuming peace talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied organizations. More important, there are other parties not before the Court with direct and specific interests in the questions being raised.22 Of recent development is the filing of the first case for proscription under Section 1723 of RA 9372 by the Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group.24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf Group. Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past rebellion charges against them. In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos;

and accused of being front organizations for the Communist movement were petitionerorganizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26 The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion, its elements not having been altered. Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged. Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained under the law. The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its members with standing. 27 The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372. Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Taada and Senator Sergio Osmea III, who cite their being respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed. Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise are of transcendental importance, "which must be settled early" and are of "far-reaching implications," without mention of any specific provision of RA 9372 under which they have been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the general public. Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress,28 whereas citizen standing must rest on direct and personal interest in the proceeding.29 RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and

personal interest in the implementation of the law. It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key. Petitioners fail to present an actual case or controversy By constitutional fiat, judicial power operates only when there is an actual case or controversy. Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and 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. 30 (emphasis and underscoring supplied.) As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.32 Information Technology Foundation of the Philippines v. COMELEC 33 cannot be more emphatic: [C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciabledefinite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and underscoring supplied) Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was held to be premature as it was tacked on uncertain, contingent events.34 Similarly, a petition that fails to allege that an application for a license to operate a radio or television station has been denied or granted by the authorities does not present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem. 35 The Court dismissed the petition in Philippine Press Institute v. Commission on Elections 36 for failure to cite any specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v. Commission on Elections, 37 to rule on the religious

freedom claim of the therein petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no actual controversy between real litigants. The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum. The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient facts to enable the Court to intelligently adjudicate the issues. 38 Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, 39 allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." 40 The plaintiffs therein filed an action before a federal court to assail the constitutionality of the material support statute, 18 U.S.C. 2339B (a) (1),41 proscribing the provision of material support to organizations declared by the Secretary of State as foreign terrorist organizations. They claimed that they intended to provide support for the humanitarian and political activities of two such organizations. Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be a justiciable controversy. 42 Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established, much less a real and existing one. Petitioners obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function. 43 Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.44 The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused. 45 Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation are rightly excepted Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism46 under RA 9372 in that terms like "widespread and extraordinary fear and panic among the populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts. Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech. For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute. Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48 The Court clarifies. At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and the vagueness doctrines have special application only to free-speech cases," and are "not appropriate for testing the validity of penal statutes." 50 It added that, at any rate, the challenged provision, under which the therein petitioner was charged, is not vague.51 While in the subsequent case of Romualdez v. Commission on Elections ,52 the Court stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject election offense 53 under the Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in precise language.54 The two Romualdez cases rely heavily on the Separate Opinion 55 of Justice Vicente V. Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder. The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads: A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes

regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been 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." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris [T]he 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. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.56 (Underscoring supplied.) The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights). To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane. A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. 57 The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. 58 As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected. 59 A "facial" challenge is likewise different from an "as-applied" challenge. Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. 60 Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected speech, the exercise of which should not at all times be abridged.62 As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights. 63 The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and "underscored that an on-its-face invalidation of penal statutes x x x may not be allowed."64 [T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the States ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the States power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him. 65 (Emphasis and underscoring supplied) It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases. By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants. 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 laws "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.66 (Emphasis in the original omitted; underscoring supplied.) In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, 67 observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment, 68 and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speechrelated conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of constitutionally protected expression." 71 Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent charge against them While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the law "on its face and in its entirety." 72 It stressed that "statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant."73 American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity." For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes are unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of liberty under law." 75 In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the constitutionality of criminal statutes. In at least three cases, 76 the Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws;

(2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand. In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of "unlawful demand" in the definition of terrorism 77 must necessarily be transmitted through some form of expression protected by the free speech clause. The argument does not persuade. What the law seeks to penalize is conduct, not speech. Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an "unlawful demand." Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a protected speech. Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case 78 illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating speech rather than conduct. Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present case where the expression figures only as an inevitable incident of making the element of coercion perceptible. [I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was, in part, initiated, evidenced, or carried out by means of language, either spoken, written, or printed . Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society. 79 (italics and underscoring supplied) Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited conduct.80 Since speech is not involved here, the Court cannot heed the call for a facial analysis. 1avvphi1 IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as applied to the therein petitioners inasmuch as they were actually

charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in its entirety. In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a statutes future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress. WHEREFORE, the petitions are DISMISSED. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice WE CONCUR: RENATO C. CORONA Chief Justice ANTONIO T. CARPIO Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice LUCAS P. BERSAMIN Associate Justice MARIANO C. DEL CASTILLO Associate Justice JOSE PORTUGAL PEREZ Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice ARTURO D. BRION Associate Justice DIOSDADO M. PERALTA Associate Justice ROBERTO A. ABAD Associate Justice MARTIN S. VILLARAMA, JR. Associate Justice JOSE CATRAL MENDOZA Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice C E R T I F I CAT I O N

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court. RENATO C. CORONA Chief Justice

Footnotes
1 A consolidation 2 3

of House Bill No. 4839 and Senate Bill No. 2137.

REPUBLIC ACT No. 9372, Sec. 62.

KMU Chairperson Elmer Labog, NAFLU-KMU National President Joselito V. Ustarez and NAFLU-KMU Secretary General Antonio C. Pascual, and CTUHR Executive Director Daisy Arago.
4

BAYAN Chairperson Dr. Carolina Pagaduan-Araullo, GABRIELA Secretary General Emerenciana de Jesus, KMP Secretary General Danilo Ramos, MCCCL Convenor Amado G. Inciong, COURAGE National President Ferdinand Gaite, KADAMAY Vice Chairperson Gloria G. Arellano, SCW Chairperson Merly Grafe, LFS National Chairperson Vencer Crisostomo, Anakbayan Secretary General Eleanor de Guzman, PAMALAKAYA Chairperson Fernando Hicap, ACT Chairperson Antonio Tinio, Migrante Chairperson Concepcion Bragas-Regalado, HEAD Deputy Secretary General Dr. Geneve Rivera, and Agham Chairperson Dr. Giovanni Tapang. Grafe and Tapang, however, failed to verify the petition.
5

Dr. Edelina P. De La Paz for Karapatan, Evangeline Hernandez for Hustisya, Mary Guy Portajada for Desaparecidos, Donato Continente for SELDA, Bishop Elmer M. Bolocon for EMJP and Fr. Gilbert Sabado for PCPR.
6

IBP is represented by Atty. Feliciano M. Bautista, national president, while CODAL is represented by Atty. Noel Neri, convenor/member.
7

BAYAN-ST is represented by Secretary General Arman Albarillo; Katipunan ng mga Magsasaka sa Timog Katagulagan (KASAMA-TK) by Secretary General Orly Marcellana; Pagkakaisa ng mga Manggagawa sa Timog Katagalugan (PAMANTIKKMU) by Regional Secretary General Luz Baculo; GABRIELA-Southern Tagalog by Secretary General Helen Asdolo; Organized Labor Association in Line Industries and Agriculture (OLALIA) by Chairperson Romeo Legaspi; Southern Tagalog Region Transport Organization (STARTER) by Regional Chairperson Rolando Mingo; Bayan Muna Partylist-ST by Regional Coordinator Bayani Cambronero; Anakbayan-ST by Regional Chairperson Pedro Santos, Jr.; LFS-ST by Spokesperson Mark Velasco; PAMALAKAYA-ST by Vice Chairperson Peter Gonzales, Bigkis at Lakas ng mga Katutubo sa Timog Katagalugan (BALATIK) by Regional Auditor Aynong Abnay;

Kongreso ng mga Magbubukid para sa Repormang Agraryo (Kompra) represented by member Leng Jucutan; Martir ng Bayan with no representation; Pagkakaisa at Ugnayan ng nmga Magbubukid sa Laguna (PUMALAG) represented by Provincial Secretary General Darwin Liwag; and Los Baos Rural Poor Organization for Progress and Equality represented by Teodoro Reyes.
8

Francesca Tolentino, Jannette Barrientos, Arnel Segune Beltran, Edgardo Bitara Yap, Oscar Lapida, Delfin de Claro, Sally Astera, Christian Nio Lajara, Mario Anicete, and Emmanuel Capulong.
9

REPUBLIC ACT No. 9372, Sec. 53.

10

Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133 (2003).
11

Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v. Carr, 369 U.S. 186 (1962).
12 13 14 15 16

G.R. No. 166052, August 29, 2007, 531 SCRA 583, 591-592. 360 Phil. 133 (1998). Rollo (G.R. No. 178890), pp. 11-12. Rollo (G.R. No. 178581), p. 17.

Vide Genesis Transport Service, Inc. v. Unyon ng Malayang Manggagawa ng Genesis Transport, G.R. No. 182114, April 5, 2010.
17 18

<http://www.state.gov/s/ct/rls/other/des/123085.htm> (last visited August 13, 2010).

<http://eurex.europa.eu/LexUriServ/site/en/oj/2005/l_314/l_31420051130en00410045.pdf> and its recent update <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=OJ:L:2009:023:0037:01:EN:HTM> on the Council Common Position (last visited August 13, 2010).
19Philippine

Daily Inquirer, July 11, 2007, Page A-1. <http://newsinfo.inquirer.net/breakingnews/nation/view/2007071175951/Reds_target_of_terror_law> (last visited August 16, 2010).
20 21

Visit

also

House Resolution No. 641.

In his State of the Nation Address, President Benigno Aquino III said: "x x x x. Tungkol naman po sa CPP-NPA-NDF: handa na ba kayong maglaan ng kongkretong

mungkahi, sa halip na pawang batikos lamang? Kung kapayapaan din ang hangad ninyo, handa po kami sa malawakang tigil-putukan. Mag-usap tayo. Mahirap magsimula ang usapan habang mayroon pang amoy ng pulbura sa hangin. Nananawagan ako: huwag po natin hayaang masayang ang napakagandang pagkakataong ito upang magtipon sa ilalim ng iisang adhikain. Kapayapaan at katahimikan po ang pundasyon ng kaunlaran. Habang nagpapatuloy ang barilan, patuloy din ang pagkakagapos natin sa kahirapan. x x x x." See: <http://www.gov.ph/2010/07/26/state-of-thenation-address-2010> (last visited August 25, 2010).
22

In Francisco v. House of Representatives, 460 Phil. 830, 899 (2003), the Court followed the determinants cited by Mr, Justice Florentino Feliciano in Kilosbayan v. Guingona for using the transcendental importance doctrine, to wit: (a) the character of the funds or other assets involved in the case; (b) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (c) the lack of any other party with a more direct and specific interest in the questions being raised.
23

SEC. 17. Proscription of Terrorist Organization, Association, or Group of Persons. Any organization, association, or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses acts to terrorize mentioned in this Act or to sow and create a condition of widespread fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.
24

<http://www.philstar.com/Article.aspx? articleId=607149&publicationSubCategoryId=63> (last visited: September 1, 2010).

25 26 27 28

G.R. Nos. 172070-72, June 1, 2007, 523 SCRA 318. Rollo (G.R. No. 178581), pp. 111-125. Supra note 22 at 896.

Gonzales v. Hon. Narvasa, 392 Phil. 518, 525 (2000), citing Flast v. Cohen, 392 US 83, 20 L Ed 2d 947, 88 S Ct 1942.

29

Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec , G.R. No. 132922, April 21, 1998, 289 SCRA 337.
30 31 32

Constitution, Article VIII, Section 1. 63 Phil. 139, 158 (1936).

Republic Telecommunications Holding, Inc. v. Santiago , G.R. No. 140338, August 7, 2007, 529 SCRA 232, 243.
33 34 35

499 Phil. 281, 304-305 (2005). Mariano, Jr. v. Commission on Elections, 312 Phil. 259 (1995).

Allied Broadcasting Center v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.
36 37 38

314 Phil. 131 (1995). G.R. No. 89651, November 10, 1989, 179 SCRA 287.

De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010, citing Buckley v. Valeo, 424 U.S. 1, 113-118 (1976) and Regional Rail Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).
39 40 41

561 U.S. [unpaginated] (2010). Volume 561 is still pending completion. Id. citing Babbitt v. Farm Workers, supra.

2339B. Providing material support or resources to designated foreign terrorist organizations. (a) Prohibited Activities. (1) Unlawful conduct. Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g) (6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).
42

Doe v. Bolton, 410 U.S. 179, 188-189 (1973).

43

Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18, 2005, 449 SCRA 1, 10, citing Allied Broadcasting Center, Inc. v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.
44

Lawrence H. Tribe, American Constitutional Law Vol. I, p.332 (3rd ed. 2000), citing Steffel v. Thompson, 415 U.S. 452 (1974) and Ellis v. Dyson, 421 U.S. 426 (1975).
45

Vide Garcia v. Commission on Elections , G.R. No. 111511, October 5, 1993, 227 SCRA 100, 117, stating that "all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm per se the grant of power[.]"
46

RA 9372 defines the crime of terrorism as follows: SEC. 3. Terrorism. Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: a. Article 222 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters); b. Article 134 (Rebellion or Insurrection); c. Article 134-a (Coup detat), including acts committed by private persons; d. Article 248 (Murder); e. Article 267 (Kidnapping and Serious Illegal Detention); f. Article 324 (Crimes Involving Destruction); or under 1. Presidential Decree No. 1613 (The Law on Arson); 2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); 3. Republic Act No. 5207 (Atomic Energy Regulatory and Liability Act of 1968); 4. Republic Act No. 6235 (Anti-Hijacking Law); 5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974); and, 6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives) thereby sowing and creating a condition of widespread and extraordinary fear

and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.
47 48 49

479 Phil. 265 (2004). 421 Phil. 290 (2001).

Republic Act No. 3019, Sec. 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government x x x. (Underscoring supplied)
50 51 52 53

Romualdez v. Hon. Sandiganbayan, supra at 281. Id. at 288. G.R. No. 167011, April 30, 2008, 553 SCRA 370.

Punishable under Section 45(j) in relation to Section 10(g) or (j) of Republic Act No. 8189.
54 55 56 57 58

Romualdez v. Commission on Elections, supra at 284. Estrada v. Sandiganbayan, supra at 421-450. Id. at 353-356. People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186, 195.

Blo Umpar Adiong v. Commission on Elections , G.R. No. 103956, March 31, 1992, 207 SCRA 712, 719-720.
59

Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279 (2003), note 39, citing Michael C. Dorf, Facial Challenges to State and Federal Statutes , 46 Stan. L. Rev. 235, 261-262 (1994).
60

Vide David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 239; Romualdez v. Commission on Elections, supra at 418, note 35.
61

Estrada v. Sandiganbayan, supra at 429.

62 63

Constitution, Art. III, Sec. 4.

The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the sovereign power of the state to maintain social order as an aspect of police power. The legislature may even forbid and penalize acts formerly considered innocent and lawful provided that no constitutional rights have been abridged. (People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476, 485).
64 65 66 67 68 69 70 71 72 73 74

Romualdez v. Commission on Elections, supra at 643. Id. at 645-646. David v. Macapagal-Arroyo, supra at 238. Estrada v. Sandiganbayan, supra; David v. Macapagal-Arroyo, supra. Estrada v. Sandiganbayan, supra at 354. Id. 539 U.S. 113, 156 L. Ed. 2d 148 (2003). Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972). Estrada v. Sandiganbayan, supra at 355. Id.

United States v. Waymer, 55 F.3d 564 (11th Circ. 1995) cert. denied, 517 U.S. 1119, 134 L. Ed. 2d 519 (1996); Chapman v. United States, 500 U.S. 453, 114 L. Ed 2d 524 (1991); United States v. Powell, 423 U.S. 87, 46 L. Ed. 2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 42 L. Ed 2d 706 (1975).
75

Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279 (2003).
76

People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186; People v. Dela Piedra, G.R. No. 121777, January 24, 2001, 350 SCRA 163; People v. Siton, G.R. No. 169364, September 18, 2009, 600 SCRA 476.
77 78

Republic Act No. 9372, Sec. 3, supra.

Rumsfield v. Forum for Academic and Institutional Rights, Inc. , 547 U.S. 47, 164 L.Ed 2d 156 (2006).

79

Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 93 L. Ed. 834, 843-844 (1949); Cf Brown v. Hartlage, 456 U.S. 45, 71 L. Ed 2d 732, 742 (1982) that acknowledges: x x x The fact that such an agreement [to engage in illegal conduct] necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited.
80

Vide Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones , 90 Cornell L. Rev. 1277, 1315 (2005). The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION ABAD, J.: I concur with the majority opinion in dismissing the various petitions filed before this Court challenging the validity of Republic Act (R.A.) 9372. I feel a need to emphasize, however, that as the grounds for dismissal are more procedural than substantive, our decision in these consolidated cases does not definitively uphold the validity of the questioned law. The specific questions raised by the petitioners against R.A. 9372 may be raised in the proper forum if and when an actual controversy arises and becomes ripe for adjudication. ROBERTO A. ABAD Associate Justice The Lawphil Project - Arellano Law Foundation

BAKER v. CARR, 369 U.S. 186 (1962)

369 U.S. 186 BAKER ET AL. v. CARR ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE. No. 6.

Argued April 19-20, 1961. Set for reargument May 1, 1961. Reargued October 9, 1961. Decided March 26, 1962. Appellants are persons allegedly qualified to vote for members of the General Assembly of Tennessee representing the counties in which they reside. They brought suit in a Federal District Court in Tennessee under 42 U.S.C. 1983, on behalf of themselves and others similarly situated, to redress the alleged deprivation of their federal constitutional rights by legislation classifying voters with respect to representation in the General Assembly. They alleged that, by means of a 1901 statute of Tennessee arbitrarily and capriciously apportioning the seats in the General Assembly among the State's 95 counties, and a failure to reapportion them subsequently notwithstanding substantial growth and redistribution of the State's population, they suffer a "debasement of their votes" and were thereby denied the equal protection of the laws guaranteed them by the Fourteenth Amendment. They sought, inter alia, a declaratory judgment that the 1901 statute is unconstitutional and an injunction restraining certain state officers from conducting any further elections under it. The District Court dismissed the complaint on the grounds that it lacked jurisdiction of the subject matter and that no claim was stated upon which relief could be granted. Held: 1. The District Court had jurisdiction of the subject matter of the federal constitutional claim asserted in the complaint. Pp. 198-204. 2. Appellants had standing to maintain this suit. Pp. 204-208. 3. The complaint's allegations of a denial of equal protection presented a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. Pp. 208-237. 179 F. Supp. 824, reversed and cause remanded. Charles S. Rhyne and Z. T. Osborn, Jr. reargued the cause for appellants. With them on the briefs were Hobart F. Atkins, Robert H. Jennings, Jr., J. W. Anderson, C. R. McClain, Walter Chandler, Harris A. Gilbert, E. K. Meacham and Herzel H. E. Plaine. [369 U.S. 186, 187] Jack Wilson, Assistant Attorney General of Tennessee, reargued the cause for appellees. With him on the briefs were George F. McCanless, Attorney General, and Milton P. Rice and James M. Glasgow, Assistant Attorneys General. Solicitor General Cox, by special leave of Court, 365 U.S. 864 , reargued the cause for the United States, as amicus curiae, urging reversal. With him on the briefs were Assistant Attorney General Marshall, Acting Assistant Attorney General Doar, Bruce J. Terris, Harold H. Greene, David Rubin and Howard A. Glickstein. Briefs of amici curiae, in support of appellants, were filed by J. Howard Edmondson, Governor of Oklahoma, and Norman E. Reynolds, Jr. for the Governor; W. Scott Miller, Jr. and George J. Long for the City of St. Matthews, Kentucky; Roger Arnebergh, Henry P. Kucera, J. Elliott Drinard, Barnett I. Shur, Alexander G. Brown, Nathaniel H. Goldstick and Charles S. Rhyne for the National Institute of Municipal Law Officers; Eugene H. Nickerson and David M. Levitan for John F. English et al.; Upton Sisson, Clare S. Hornsby, Walter L. Nixon, Jr. and John Sekul for Marvin Fortner et al.; and Theodore Sachs for August Scholle. MR. JUSTICE BRENNAN delivered the opinion of the Court. This civil action was brought under 42 U.S.C. 1983 and 1988 to redress the alleged deprivation of federal constitutional rights. The complaint, alleging that by means of a 1901 statute of Tennessee apportioning the members of the General Assembly among the State's 95 counties, 1 "these plaintiffs and others similarly situated, [369 U.S. 186, 188] are denied the equal protection of the laws accorded

them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes," was dismissed by a three-judge court convened under 28 U.S.C. 2281 in the Middle District of Tennessee. 2 The court held that it lacked jurisdiction of the subject matter and also that no claim was stated upon which relief could be granted. 179 F. Supp. 824. We noted probable jurisdiction of the appeal. 364 U.S. 898 . 3 We hold that the dismissal was error, and remand the cause to the District Court for trial and further proceedings consistent with this opinion. The General Assembly of Tennessee consists of the Senate with 33 members and the House of Representatives with 99 members. The Tennessee Constitution provides in Art. II as follows: "Sec. 3. Legislative authority - Term of office. - The Legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both dependent on the people; who shall hold their offices for two years from the day of the general election. "Sec. 4. Census. - An enumeration of the qualified voters, and an apportionment of the Representatives in the General Assembly, shall be made in the year one thousand eight hundred and seventy-one, and within every subsequent term of ten years. "Sec. 5. Apportionment of representatives. - The number of Representatives shall, at the several [369 U.S. 186, 189] periods of making the enumeration, be apportioned among the several counties or districts, according to the number of qualified voters in each; and shall not exceed seventy-five, until the population of the State shall be one million and a half, and shall never exceed ninety-nine; Provided, that any county having two-thirds of the ratio shall be entitled to one member. "Sec. 6. Apportionment of senators. - The number of Senators shall, at the several periods of making the enumeration, be apportioned among the several counties or districts according to the number of qualified electors in each, and shall not exceed one-third the number of representatives. In apportioning the Senators among the different counties, the fraction that may be lost by any county or counties, in the apportionment of members to the House of Representatives, shall be made up to such county or counties in the Senate, as near as may be practicable. When a district is composed of two or more counties, they shall be adjoining; and no county shall be divided in forming a district." Thus, Tennessee's standard for allocating legislative representation among her counties is the total number of qualified voters resident in the respective counties, subject only to minor qualifications. 4 Decennial reapportionment [369 U.S. 186, 190] in compliance with the constitutional scheme was effected by the General Assembly each decade from 1871 to 1901. The 1871 apportionment 5 was preceded by an 1870 statute requiring an enumeration. 6 The 1881 apportionment involved three statutes, the first authorizing an enumeration, the second enlarging the Senate from 25 to [369 U.S. 186, 191] 33 members and the House from 75 to 99 members, and the third apportioning the membership of both Houses. 7 In 1891 there were both an enumeration and an apportionment. 8 In 1901 the General Assembly abandoned separate enumeration in favor of reliance upon the Federal Census and passed the Apportionment Act here in controversy. 9 In the more than 60 years since that action, all proposals in both Houses of the General Assembly for reapportionment have failed to pass. 10 [369 U.S. 186, 192] Between 1901 and 1961, Tennessee has experienced substantial growth and redistribution of her population. In 1901 the population was 2,020,616, of whom 487,380 were eligible to vote. 11 The 1960 Federal Census reports the State's population at 3,567,089, of whom 2,092,891 are eligible to vote. 12 The relative standings of the counties in terms of qualified voters have changed significantly. It is primarily the continued application of the 1901 Apportionment Act to this shifted and enlarged voting population which gives rise to the present controversy.

Indeed, the complaint alleges that the 1901 statute, even as of the time of its passage, "made no apportionment of Representatives and Senators in accordance with the constitutional formula . . ., but instead arbitrarily and capriciously apportioned representatives in the Senate and House without reference . . . to any logical or reasonable formula whatever." 13 It is further alleged [369 U.S. 186, 193] that "because of the population changes since 1900, and the failure of the Legislature to reapportion itself since 1901," the 1901 statute became "unconstitutional and obsolete." Appellants also argue that, because of the composition of the legislature effected by the 1901 Apportionment Act, redress in the form of a state constitutional amendment to change the entire mechanism for reapportioning, or any other change short of that, is difficult or impossible. 14 The complaint concludes that "these plaintiffs [369 U.S. 186, 194] and others similarly situated, are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes." 15 They seek a [369 U.S. 186, 195] declaration that the 1901 statute is unconstitutional and an injunction restraining the appellees from acting to conduct any further elections under it. They also pray that unless and until the General Assembly enacts a valid reapportionment, the District Court should either decree a reapportionment by mathematical application of the Tennessee constitutional formulae to the most recent Federal Census figures, or direct the appellees to conduct legislative elections, primary and general, at large. They also pray for such other and further relief as may be appropriate.

I.
THE DISTRICT COURT'S OPINION AND ORDER OF DISMISSAL. Because we deal with this case on appeal from an order of dismissal granted on appellees' motions, precise identification [369 U.S. 186, 196] of the issues presently confronting us demands clear exposition of the grounds upon which the District Court rested in dismissing the case. The dismissal order recited that the court sustained the appellees' grounds "(1) that the Court lacks jurisdiction of the subject matter, and (2) that the complaint fails to state a claim upon which relief can be granted . . . ." In the setting of a case such as this, the recited grounds embrace two possible reasons for dismissal: First: That the facts and injury alleged, the legal bases invoked as creating the rights and duties relied upon, and the relief sought, fail to come within that language of Article III of the Constitution and of the jurisdictional statutes which define those matters concerning which United States District Courts are empowered to act; Second: That, although the matter is cognizable and facts are alleged which establish infringement of appellants' rights as a result of state legislative action departing from a federal constitutional standard, the court will not proceed because the matter is considered unsuited to judicial inquiry or adjustment. We treat the first ground of dismissal as "lack of jurisdiction of the subject matter." The second we consider to result in a failure to state a justiciable cause of action. The District Court's dismissal order recited that it was issued in conformity with the court's per curiam opinion. The opinion reveals that the court rested its dismissal upon lack of subject-matter jurisdiction and lack of a justiciable cause of action without attempting to distinguish between these grounds. After noting that the plaintiffs challenged the existing legislative apportionment in Tennessee under the Due Process and Equal Protection Clauses, and summarizing the supporting allegations and the relief requested, the court stated that "The action is presently before the Court upon the defendants' motion to dismiss predicated upon three [369 U.S. 186, 197] grounds: first, that the Court lacks jurisdiction of the subject matter; second, that the complaints fail to state a claim upon which relief can be granted; and

third, that indispensable party defendants are not before the Court." 179 F. Supp., at 826. The court proceeded to explain its action as turning on the case's presenting a "question of the distribution of political strength for legislative purposes." For, "From a review of [numerous Supreme Court] . . . decisions there can be no doubt that the federal rule, as enunciated and applied by the Supreme Court, is that the federal courts, whether from a lack of jurisdiction or from the inappropriateness of the subject matter for judicial consideration, will not intervene in cases of this type to compel legislative reapportionment." 179 F. Supp., at 826. The court went on to express doubts as to the feasibility of the various possible remedies sought by the plaintiffs. 179 F. Supp., at 827-828. Then it made clear that its dismissal reflected a view not of doubt that violation of constitutional rights was alleged, but of a court's impotence to correct that violation: "With the plaintiffs' argument that the legislature of Tennessee is guilty of a clear violation of the state constitution and of the rights of the plaintiffs the Court entirely agrees. It also agrees that the evil is a serious one which should be corrected without further delay. But even so the remedy in this situation clearly does not lie with the courts. It has long been recognized and is accepted doctrine that there are indeed some rights guaranteed by the Constitution for the violation of which the courts cannot give redress." 179 F. Supp., at 828. In light of the District Court's treatment of the case, we hold today only (a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of [369 U.S. 186, 198] action is stated upon which appellants would be entitled to appropriate relief; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the Tennessee apportionment statutes. 16 Beyond noting that we have no cause at this stage to doubt the District Court will be able to fashion relief if violations of constitutional rights are found, it is improper now to consider what remedy would be most appropriate if appellants prevail at the trial.

II.
JURISDICTION OF THE SUBJECT MATTER. The District Court was uncertain whether our cases withholding federal judicial relief rested upon a lack of federal jurisdiction or upon the inappropriateness of the subject matter for judicial consideration - what we have designated "nonjusticiability." The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not "arise under" the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, 2), or is not a "case or controversy" within the meaning of that section; or the cause is not one described by any jurisdictional statute. Our conclusion, see pp. 208-237. infra, that this cause presents no nonjusticiable "political question" settles the only possible doubt that it is a case or controversy. Under the present heading of "Jurisdiction [369 U.S. 186, 199] of the Subject Matter" we hold only that the matter set forth in the complaint does arise under the Constitution and is within 28 U.S.C. 1343. Article III, 2, of the Federal Constitution provides that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ." It is clear that the cause of action is one which "arises under" the Federal Constitution. The complaint alleges that the 1901 statute effects an apportionment

that deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment. Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were "so attenuated and unsubstantial as to be absolutely devoid of merit," Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 , or "frivolous," Bell v. Hood, 327 U.S. 678, 683 . 17 That the claim is unsubstantial must be "very plain." Hart v. Keith Vaudeville Exchange, 262 U.S. 271, 274 . Since the District Court obviously and correctly did not deem the asserted federal constitutional claim unsubstantial and frivolous, it should not have dismissed the complaint for want of jurisdiction of the subject matter. And of course no further consideration of the merits of the claim is relevant to a determination of the court's jurisdiction of the subject matter. We said in an earlier voting case from Tennessee: "It is obvious . . . that the court, in dismissing for want of jurisdiction, was controlled by what it deemed to be the want of merit in the averments which were made in the complaint as to the violation of the Federal right. But as the very nature of the controversy was Federal, and, therefore, [369 U.S. 186, 200] jurisdiction existed, whilst the opinion of the court as to the want of merit in the cause of action might have furnished ground for dismissing for that reason, it afforded no sufficient ground for deciding that the action was not one arising under the Constitution and laws of the United States." Swafford v. Templeton, 185 U.S. 487, 493 . "For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Bell v. Hood, 327 U.S. 678, 682 . See also Binderup v. Pathe Exchange, 263 U.S. 291, 305 -308. Since the complaint plainly sets forth a case arising under the Constitution, the subject matter is within the federal judicial power defined in Art. III, 2, and so within the power of Congress to assign to the jurisdiction of the District Courts. Congress has exercised that power in 28 U.S.C. 1343 (3): "The district courts shall have original jurisdiction of any civil action authorized by law 18 to be commenced by any person . . . [t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States . . . ." 19 [369 U.S. 186, 201] An unbroken line of our precedents sustains the federal courts' jurisdiction of the subject matter of federal constitutional claims of this nature. The first cases involved the redistricting of States for the purpose of electing Representatives to the Federal Congress. When the Ohio Supreme Court sustained Ohio legislation against an attack for repugnancy to Art. I, 4, of the Federal Constitution, we affirmed on the merits and expressly refused to dismiss for want of jurisdiction "In view . . . of the subjectmatter of the controversy and the Federal characteristics which inhere in it . . . ." Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 570 . When the Minnesota Supreme Court affirmed the dismissal of a suit to enjoin the Secretary of State of Minnesota from acting under Minnesota redistricting legislation, we reviewed the constitutional merits of the legislation and reversed the State Supreme Court. Smiley v. Holm, 285 U.S. 355 . And see companion cases from the New York Court of Appeals and the Missouri Supreme Court, Koenig v. Flynn, 285 U.S. 375 ; Carroll v. Becker, 285 U.S. 380 . When a three-judge District Court, exercising jurisdiction under the predecessor of 28 U.S.C. 1343 (3), permanently enjoined officers of the State of Mississippi from conducting an election of Representatives under a Mississippi redistricting act, we reviewed the federal questions on the merits and reversed the District Court. Wood v. Broom, 287 U.S. 1 , reversing 1 F. Supp. 134. A similar decree of a District Court, exercising jurisdiction under the same statute, concerning a Kentucky redistricting act, was [369 U.S. 186, 202] reviewed and the decree reversed. Mahan v. Hume, 287 U.S. 575 , reversing 1 F. Supp. 142. 20 The appellees refer to Colegrove v. Green, 328 U.S. 549 , as authority that the District Court lacked jurisdiction of the subject matter. Appellees misconceive the holding of that case. The holding was precisely contrary to their reading of it. Seven members of the Court participated in the decision. Unlike many other cases in this field which have assumed without discussion that there was

jurisdiction, all three opinions filed in Colegrove discussed the question. Two of the opinions expressing the views of four of the Justices, a majority, flatly held that there was jurisdiction of the subject matter. MR. JUSTICE BLACK joined by MR. JUSTICE DOUGLAS and Mr. Justice Murphy stated: "It is my judgment that the District Court had jurisdiction . . .," citing the predecessor of 28 U.S.C. 1343 (3), and Bell v. Hood, supra. 328 U.S., at 568 . Mr. Justice Rutledge, writing separately, expressed agreement with this conclusion. 328 U.S., at 564 , 565, n. 2. Indeed, it is even questionable that the opinion of MR. JUSTICE FRANKFURTER, joined by Justices Reed and Burton, doubted jurisdiction of the subject matter. Such doubt would have been inconsistent with the professed willingness to turn the decision on either the majority or concurring views in Wood v. Broom, supra. 328 U.S., at 551 . Several subsequent cases similar to Colegrove have been decided by the Court in summary per curiam statements. None was dismissed for want of jurisdiction of the subject matter. Cook v. Fortson, 329 U.S. 675 ; Turman v. [369 U.S. 186, 203] Duckworth, ibid.; Colegrove v. Barrett, 330 U.S. 804 ; 21 Tedesco v. Board of Supervisors, 339 U.S. 940 ; Remmey v. Smith, 342 U.S. 916 ; Cox v. Peters, 342 U.S. 936 ; Anderson v. Jordan, 343 U.S. 912 ; Kidd v. McCanless, 352 U.S. 920 ; Radford v. Gary, 352 U.S. 991 ; Hartsfield v. Sloan, 357 U.S. 916 ; Matthews v. Handley, 361 U.S. 127 . 22 Two cases decided with opinions after Colegrove likewise plainly imply that the subject matter of this suit is within District Court jurisdiction. In MacDougall v. Green, 335 U.S. 281 , the District Court dismissed for want of jurisdiction, which had been invoked under 28 U.S.C. 1343 (3), a suit to enjoin enforcement of the requirement that nominees for state-wide elections be supported by a petition signed by a minimum number of persons from at least 50 of the State's 102 counties. This Court's disagreement with that action is clear since the Court affirmed the judgment after a review of the merits and concluded that the particular claim there was without merit. In South v. Peters, 339 U.S. 276 , we affirmed the dismissal of an attack on the Georgia "county unit" system but founded our action on a ground that plainly would not have been reached if the lower court lacked jurisdiction of the subject matter, which allegedly existed under 28 U.S.C. 1343 (3). The express words of our holding were that "Federal courts consistently refuse to exercise their equity powers in cases posing [369 U.S. 186, 204] political issues arising from a state's geographical distribution of electoral strength among its political subdivisions." 339 U.S., at 277 . We hold that the District Court has jurisdiction of the subject matter of the federal constitutional claim asserted in the complaint.

III. STANDING.
A federal court cannot "pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies." Liverpool Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39 . Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing. It is, of course, a question of federal law. The complaint was filed by residents of Davidson, Hamilton, Knox, Montgomery, and Shelby Counties. Each is a person allegedly qualified to vote for members of the General Assembly representing his county. 23 These appellants sued "on their own behalf and on behalf of all qualified voters of their respective counties, and further, on behalf of all voters of the State of Tennessee who

are similarly situated . . . ." 24 The appellees are the Tennessee Secretary of State, Attorney General, Coordinator of Elections, and members of the State Board of Elections; the members of the State Board are sued in their own right and also as representatives of the County Election Commissioners whom they appoint. 25 [369 U.S. 186, 206]
[369 U.S. 186, 205]

We hold that the appellants do have standing to maintain this suit. Our decisions plainly support this conclusion. Many of the cases have assumed rather than articulated the premise in deciding the merits of similar claims. 26 And Colegrove v. Green, supra, squarely held that voters who allege facts showing disadvantage to themselves as individuals have standing to sue. 27 A number [369 U.S. 186, 207] of cases decided after Colegrove recognized the standing of the voters there involved to bring those actions. 28 These appellants seek relief in order to protect or vindicate an interest of their own, and of those similarly situated. Their constitutional claim is, in substance, that the 1901 statute constitutes arbitrary and capricious state action, offensive to the Fourteenth Amendment in its irrational disregard of the standard of apportionment prescribed by the State's Constitution or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis voters [369 U.S. 186, 208] in irrationally favored counties. A citizen's right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, when such impairment resulted from dilution by a false tally, cf. United States v. Classic, 313 U.S. 299 ; or by a refusal to count votes from arbitrarily selected precincts, cf. United States v. Mosley, 238 U.S. 383 , or by a stuffing of the ballot box, cf. Ex parte Siebold, 100 U.S. 371 ; United States v. Saylor, 322 U.S. 385 . It would not be necessary to decide whether appellants' allegations of impairment of their votes by the 1901 apportionment will, ultimately, entitle them to any relief, in order to hold that they have standing to seek it. If such impairment does produce a legally cognizable injury, they are among those who have sustained it. They are asserting "a plain, direct and adequate interest in maintaining the effectiveness of their votes," Coleman v. Miller, 307 U.S., at 438 , not merely a claim of "the right, possessed by every citizen, to require that the Government be administered according to law . . . ." Fairchild v. Hughes, 258 U.S. 126, 129 ; compare Leser v. Garnett, 258 U.S. 130 . They are entitled to a hearing and to the District Court's decision on their claims. "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Marbury v. Madison, 1 Cranch 137, 163.

IV.
JUSTICIABILITY. In holding that the subject matter of this suit was not justiciable, the District Court relied on Colegrove v. Green, supra, and subsequent per curiam cases. 29 The [369 U.S. 186, 209] court stated: "From a review of these decisions there can be no doubt that the federal rule . . . is that the federal courts . . . will not intervene in cases of this type to compel legislative reapportionment." 179 F. Supp., at 826. We understand the District Court to have read the cited cases as compelling the conclusion that since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a "political question" and was therefore nonjusticiable. We hold that this challenge to an apportionment presents no nonjusticiable "political question." The cited cases do not hold the contrary. Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question. Such an objection "is little more than a play upon words." Nixon v. Herndon, 273 U.S. 536, 540 . Rather, it is argued that apportionment cases, whatever the actual wording of the

complaint, can involve no federal constitutional right except one resting on the guaranty of a republican form of government, 30 and that complaints based on that clause have been held to present political questions which are nonjusticiable. We hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause. The District Court misinterpreted Colegrove v. Green and other decisions of this Court on which it relied. Appellants' claim that they are being denied equal protection is justiciable, and if [369 U.S. 186, 210] "discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights." Snowden v. Hughes, 321 U.S. 1, 11 . To show why we reject the argument based on the Guaranty Clause, we must examine the authorities under it. But because there appears to be some uncertainty as to why those cases did present political questions, and specifically as to whether this apportionment case is like those cases, we deem it necessary first to consider the contours of the "political question" doctrine. Our discussion, even at the price of extending this opinion, requires review of a number of political question cases, in order to expose the attributes of the doctrine - attributes which, in various settings, diverge, combine, appear, and disappear in seeming disorderliness. Since that review is undertaken solely to demonstrate that neither singly nor collectively do these cases support a conclusion that this apportionment case is nonjusticiable, we of course do not explore their implications in other contexts. That review reveals that in the Guaranty Clause cases and in the other "political question" cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the "political question." We have said that "In determining whether a question falls within [the political question] category, the approriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations." Coleman v. Miller, 307 U.S. 433, 454 -455. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the "political question" label to obscure the need for [369 U.S. 186, 211] case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. We shall then show that none of those threads catches this case. Foreign relations: There are sweeping statements to the effect that all questions touching foreign relations are political questions. 31 Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; 32 but many such questions uniquely demand single-voiced statement of the Government's views. 33 Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences [369 U.S. 186, 212] of judicial action. For example, though a court will not ordinarily inquire whether a treaty has been terminated, since on that question "governmental action . . . must be regarded as of controlling importance," if there has been no conclusive "governmental action" then a court can construe a treaty and may find it provides the answer. Compare Terlinden v. Ames, 184 U.S. 270, 285 , with Society for the Propagation of the Gospel in Foreign Parts v. New Haven, 8 Wheat. 464, 492-495. 34 Though a court will not undertake to

construe a treaty in a manner inconsistent with a subsequent federal statute, no similar hesitancy obtains if the asserted clash is with state law. Compare Whitney v. Robertson; 124 U.S. 190 , with Kolovrat v. Oregon, 366 U.S. 187 . While recognition of foreign governments so strongly defies judicial treatment that without executive recognition a foreign state has been called "a republic of whose existence we know nothing," 35 and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory, 36 once sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area. 37 Similarly, recognition of belligerency abroad is an executive responsibility, but if the executive proclamations fall short of an explicit answer, a court may construe them seeking, for example, to determine whether the situation is such that statutes designed to assure American neutrality have [369 U.S. 186, 213] become operative. The Three Friends, 166 U.S. 1, 63 , 66. Still again, though it is the executive that determines a person's status as representative of a foreign government, Ex parte Hitz, 111 U.S. 766 , the executive's statements will be construed where necessary to determine the court's jurisdiction, In re Baiz, 135 U.S. 403 . Similar judicial action in the absence of a recognizedly authoritative executive declaration occurs in cases involving the immunity from seizure of vessels owned by friendly foreign governments. Compare Ex parte Peru, 318 U.S. 578 , with Mexico v. Hoffman, 324 U.S. 30, 34 -35. Dates of duration of hostilities: Though it has been stated broadly that "the power which declared the necessity is the power to declare its cessation, and what the cessation requires," Commercial Trust Co. v. Miller, 262 U.S. 51, 57 , here too analysis reveals isolable reasons for the presence of political questions, underlying this Court's refusal to review the political departments' determination of when or whether a war has ended. Dominant is the need for finality in the political determination, for emergency's nature demands "A prompt and unhesitating obedience," Martin v. Mott, 12 Wheat. 19, 30 (calling up of militia). Moreover, "the cessation of hostilities does not necessarily end the war power. It was stated in Hamilton v. Kentucky Distilleries & W. Co., 251 U.S. 146, 161 , that the war power includes the power `to remedy the evils which have arisen from its rise and progress' and continues during that emergency. Stewart v. Kahn, 11 Wall. 493, 507." Fleming v. Mohawk Wrecking Co., 331 U.S. 111, 116 . But deference rests on reason, not habit. 38 The question in a particular case may not seriously implicate considerations of finality - e. g., a public program of importance [369 U.S. 186, 214] (rent control) yet not central to the emergency effort. 39 Further, clearly definable criteria for decision may be available. In such case the political question barrier falls away: "[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. . . . [It can] inquire whether the exigency still existed upon which the continued operation of the law depended." Chastleton Corp. v. Sinclair, 264 U.S. 543, 547 -548. 40 Compare Woods v. Miller Co., 333 U.S. 138 . On the other hand, even in private litigation which directly implicates no feature of separation of powers, lack of judicially discoverable standards and the drive for even-handed application may impel reference to the political departments' determination of dates of hostilities' beginning and ending. The Protector, 12 Wall. 700. Validity of enactments: In Coleman v. Miller, supra, this Court held that the questions of how long a proposed amendment to the Federal Constitution remained open to ratification, and what effect a prior rejection had on a subsequent ratification, were committed to congressional resolution and involved criteria of decision that necessarily escaped the judicial grasp. 41 Similar considerations apply to the enacting process: "The respect due to coequal and independent departments," and the need for finality and certainty about the status of a statute contribute to judicial reluctance to inquire whether, as passed, it complied with all requisite formalities. Field v. Clark, 143 U.S. 649, 672 , 676-677; see Leser v. Garnett, 258 U.S. 130, 137 . But it is not true that courts will never delve [369 U.S. 186, 215] into a legislature's records upon such a quest: If the enrolled statute lacks an effective date, a court will not

hesitate to seek it in the legislative journals in order to preserve the enactment. Gardner v. The Collector, 6 Wall. 499. The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder. The status of Indian tribes: This Court's deference to the political departments in determining whether Indians are recognized as a tribe, while it reflects familiar attributes of political questions, 42 United States v. Holliday, 3 Wall. 407, 419, also has a unique element in that "the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else. . . . [The Indians are] domestic dependent nations . . . in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian." The Cherokee Nation v. Georgia, 5 Pet. 1, 16, 17. 43 Yet, here too, there is no blanket rule. While [369 U.S. 186, 216] "`It is for [Congress] . . ., and not for the courts, to determine when the true interests of the Indian require his release from [the] condition of tutelage' . . ., it is not meant by this that Congress may bring a community or body of people within the range of this power by arbitrarily calling them an Indian tribe . . . ." United States v. Sandoval, 231 U.S. 28, 46 . Able to discern what is "distinctly Indian," ibid., the courts will strike down [369 U.S. 186, 217] any heedless extension of that label. They will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power. It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. The doctrine of which we treat is one of "political questions," not one of "political cases." The courts cannot reject as "no law suit" a bona fide controversy as to whether some action denominated "political" exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing. But it is argued that this case shares the characteristics of decisions that constitute a category not yet considered, cases concerning the Constitution's guaranty, in Art. IV, [369 U.S. 186, 218] 4, of a republican form of government. A conclusion as to whether the case at bar does present a political question cannot be confidently reached until we have considered those cases with special care. We shall discover that Guaranty Clause claims involve those elements which define a "political question," and for that reason and no other, they are nonjusticiable. In particular, we shall discover that the nonjusticiability of such claims has nothing to do with their touching upon matters of state governmental organization. Republican form of government: Luther v. Borden, 7 How. 1, though in form simply an action for damages for trespass was, as Daniel Webster said in opening the argument for the defense, "an unusual case." 44 The defendants, admitting an otherwise tortious breaking and entering, sought to justify their action on the ground that they were agents of the established lawful government of Rhode Island, which State was then under martial law to defend itself from active insurrection; that the plaintiff was engaged in that insurrection; and that they entered under orders to arrest the plaintiff. The case arose "out of the unfortunate political differences which agitated the people of Rhode Island in 1841 and 1842," 7 How., at 34, and which had resulted in a situation wherein two groups laid competing claims

to recognition as the lawful government. 45 The plaintiff's right to [369 U.S. 186, 219] recover depended upon which of the two groups was entitled to such recognition; but the lower court's refusal to receive evidence or hear argument on that issue, its charge to the jury that the earlier established or "charter" government was lawful, and the verdict for the defendants, were affirmed upon appeal to this Court. Chief Justice Taney's opinion for the Court reasoned as follows: (1) If a court were to hold the defendants' acts unjustified because the charter government had no legal existence during the period in question, it would follow that all of that government's actions - laws enacted, taxes collected, salaries paid, accounts settled, sentences passed - were of no effect; and that "the officers who carried their decisions into operation [were] answerable as trespassers, if not in some cases as criminals." 46 There was, of course, no room for application of any doctrine of de facto status to uphold prior acts of an officer not authorized de jure, for such would have defeated the plaintiff's very action. A decision for the plaintiff would inevitably have produced some significant measure of chaos, a consequence to be avoided if it could be done without abnegation of the judicial duty to uphold the Constitution. (2) No state court had recognized as a judicial responsibility settlement of the issue of the locus of state governmental authority. Indeed, the courts of Rhode Island had in several cases held that "it rested with the political power to decide whether the charter government had been displaced or not," and that that department had acknowledged no change. [369 U.S. 186, 220] (3) Since "[t]he question relates, altogether, to the constitution and laws of [the] . . . State," the courts of the United States had to follow the state courts' decisions unless there was a federal constitutional ground for overturning them. 47 (4) No provision of the Constitution could be or had been invoked for this purpose except Art. IV, 4, the Guaranty Clause. Having already noted the absence of standards whereby the choice between governments could be made by a court acting independently, Chief Justice Taney now found further textual and practical reasons for concluding that, if any department of the United States was empowered by the Guaranty Clause to resolve the issue, it was not the judiciary: "Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and . . . Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts. [369 U.S. 186, 221] "So, too, as relates to the clause in the above-mentioned article of the Constitution, providing for cases of domestic violence. It rested with Congress, too, to determine upon the means proper to be adopted to fulfill this guarantee. . . . [B]y the act of February 28, 1795, [Congress] provided, that, `in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection.' "By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. . . .

"After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? . . . If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order. . . . "It is true that in this case the militia were not called out by the President. But upon the application of the governor under the charter government, the President recognized him as the executive power of the State, and took measures to call out the militia to support his authority if it should be found necessary for the general government to interfere . . . . [C]ertainly no court of the United States, with a knowledge of this decision, would have been justified in recognizing the opposing party as the lawful government [369 U.S. 186, 222] . . . . In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice. . . ." 7 How., at 42-44. Clearly, several factors were thought by the Court in Luther to make the question there "political": the commitment to the other branches of the decision as to which is the lawful state government; the unambiguous action by the President, in recognizing the charter government as the lawful authority; the need for finality in the executive's decision; and the lack of criteria by which a court could determine which form of government was republican. 48 [369 U.S. 186, 223] But the only significance that Luther could have for our immediate purposes is in its holding that the Guaranty Clause is not a repository of judicially manageable standards which a court could utilize independently in order to identify a State's lawful government. The Court has since refused to resort to the Guaranty Clause - which alone had been invoked for the purpose - as the source of a constitutional standard for invalidating state action. See Taylor & Marshall v. Beckham (No. 1), 178 U.S. 548 (claim that Kentucky's resolution of contested gubernatorial election deprived voters of republican government held nonjusticiable); Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (claim that initiative and referendum negated republican government held nonjusticiable); Kiernan v. Portland, 223 U.S. 151 (claim that municipal charter amendment per municipal initiative and referendum negated republican government held nonjusticiable); [369 U.S. 186, 224] Marshall v. Dye, 231 U.S. 250 (claim that Indiana's constitutional amendment procedure negated republican government held nonjusticiable); O'Neill v. Leamer, 239 U.S. 244 (claim that delegation to court of power to form drainage districts negated republican government held "futile"); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (claim that invalidation of state reapportionment statute per referendum negates republican government held nonjusticiable); 49 Mountain Timber Co. v. Washington, 243 U.S. 219 (claim that workmen's compensation violates republican government held nonjusticiable); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74 (claim that rule requiring invalidation of statute by all but one justice of state court negated republican government held nonjusticiable); Highland Farms Dairy v. Agnew, 300 U.S. 608 (claim that delegation to agency of power to control milk prices violated republican government, rejected). Just as the Court has consistently held that a challenge to state action based on the Guaranty Clause presents no justiciable question so has it held, and for the same reasons, that challenges to congressional action on the ground of inconsistency with that clause present no justiciable question. In Georgia v. Stanton, 6 Wall. 50, the State sought by an original bill to enjoin execution of the Reconstruction Acts, claiming that it already possessed "A republican State, in every political, legal, constitutional, and juridical sense," and that enforcement of the new Acts "Instead of keeping the guaranty against a forcible overthrow of its government by foreign invaders or domestic insurgents, . . . is destroying that very government by force." 50 Congress had clearly refused to [369 U.S. 186, 225] recognize the republican character of the government of the suing State. 51 It seemed to the Court that the only constitutional claim that could be presented was under the Guaranty Clause, and Congress

having determined that the effects of the recent hostilities required extraordinary measures to restore governments of a republican form, this Court refused to interfere with Congress' action at the behest of a claimant relying on that very guaranty. 52 In only a few other cases has the Court considered Art. IV, 4, in relation to congressional action. It has refused to pass on a claim relying on the Guaranty Clause to establish that Congress lacked power to allow the States to employ the referendum in passing on legislation redistricting for congressional seats. Ohio ex rel. Davis v. Hildebrant, supra. And it has pointed out that Congress is not required to establish republican government in the territories before they become States, and before they have attained a sufficient population to warrant a [369 U.S. 186, 226] popularly elected legislature. Downes v. Bidwell, 182 U.S. 244, 278 -279 (dictum). 53 We come, finally, to the ultimate inquiry whether our precedents as to what constitutes a nonjusticiable "political question" bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common characteristics which we have been able to identify and label descriptively are present. We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home 54 if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action. This case does, in one sense, involve the allocation of political power within a State, and the appellants [369 U.S. 186, 227] might conceivably have added a claim under the Guaranty Clause. Of course, as we have seen, any reliance on that clause would be futile. But because any reliance on the Guaranty Clause could not have succeeded it does not follow that appellants may not be heard on the equal protection claim which in fact they tender. True, it must be clear that the Fourteenth Amendment claim is not so enmeshed with those political question elements which render Guaranty Clause claims nonjusticiable as actually to present a political question itself. But we have found that not to be the case here. In this connection special attention is due Pacific States Tel. Co. v. Oregon, 223 U.S. 118 . In that case a corporation tax statute enacted by the initiative was attacked ostensibly on three grounds: (1) due process; (2) equal protection; and (3) the Guaranty Clause. But it was clear that the first two grounds were invoked solely in aid of the contention that the tax was invalid by reason of its passage: "The defendant company does not contend here that it could not have been required to pay a license tax. It does not assert that it was denied an opportunity to be heard as to the amount for which it was taxed, or that there was anything inhering in the tax or involved intrinsically in the law which violated any of its constitutional rights. If such questions had been raised they would have been justiciable, and therefore would have required the calling into operation of judicial power. Instead, however, of doing any of these things, the attack on the statute here made is of a wholly different character. Its essentially political nature is at once made manifest by understanding that the assault which the contention here advanced makes it [sic] not on the tax as a tax, but on the State as a State. It is addressed to the [369 U.S. 186, 228] framework and political character of the government by which the statute levying the tax was passed. It is the government, the political entity, which (reducing the case to its essence) is called to the bar of this court, not for the purpose of testing judicially some exercise of power assailed, on the ground that its exertion has injuriously affected the rights of an individual because of repugnancy to some constitutional limitation, but to demand of the State that it establish its right

to exist as a State, republican in form." 223 U.S., at 150 -151. The due process and equal protection claims were held nonjusticiable in Pacific States not because they happened to be joined with a Guaranty Clause claim, or because they sought to place before the Court a subject matter which might conceivably have been dealt with through the Guaranty Clause, but because the Court believed that they were invoked merely in verbal aid of the resolution of issues which, in its view, entailed political questions. Pacific States may be compared with cases such as Mountain Timber Co. v. Washington, 243 U.S. 219 , wherein the Court refused to consider whether a workmen's compensation act violated the Guaranty Clause but considered at length, and rejected, due process and equal protection arguments advanced against it; and O'Neill v. Leamer, 239 U.S. 244 , wherein the Court refused to consider whether Nebraska's delegation of power to form drainage districts violated the Guaranty Clause, but went on to consider and reject the contention that the action against which an injunction was sought was not a taking for a public purpose. We conclude then that the nonjusticiability of claims resting on the Guaranty Clause which arises from their embodiment of questions that were thought "political," can have no bearing upon the justiciability of the equal protection claim presented in this case. Finally, we [369 U.S. 186, 229] emphasize that it is the involvement in Guaranty Clause claims of the elements thought to define "political questions," and no other feature, which could render them nonjusticiable. Specifically, we have said that such claims are not held nonjusticiable because they touch matters of state governmental organization. Brief examination of a few cases demonstrates this. When challenges to state action respecting matters of "the administration of the affairs of the State and the officers through whom they are conducted" 55 have rested on claims of constitutional deprivation which are amenable to judicial correction, this Court has acted upon its view of the merits of the claim. For example, in Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 , we reversed the Nebraska Supreme Court's decision that Nebraska's Governor was not a citizen of the United States or of the State and therefore could not continue in office. In Kennard v. Louisiana ex rel. Morgan, 92 U.S. 480 , and Foster v. Kansas ex rel. Johnston, 112 U.S. 201 , we considered whether persons had been removed from public office by procedures consistent with the Fourteenth Amendment's due process guaranty, and held on the merits that they had. And only last Term, in Gomillion v. Lightfoot, 364 U.S. 339 , we applied the Fifteenth Amendment to strike down a redrafting of municipal boundaries which effected a discriminatory impairment of voting rights, in the face of what a majority of the Court of Appeals thought to be a sweeping commitment to state legislatures of the power to draw and redraw such boundaries. 56 Gomillion was brought by a Negro who had been a resident of the City of Tuskegee, Alabama, until the municipal boundaries were so recast by the State Legislature [369 U.S. 186, 230] as to exclude practically all Negroes. The plaintiff claimed deprivation of the right to vote in municipal elections. The District Court's dismissal for want of jurisdiction and failure to state a claim upon which relief could be granted was affirmed by the Court of Appeals. This Court unanimously reversed. This Court's answer to the argument that States enjoyed unrestricted control over municipal boundaries was: "Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution . . . . The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. `It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.'" 364 U.S., at 344 -345. To a second argument, that Colegrove v. Green, supra, was a barrier to hearing the merits of the case, the Court responded that Gomillion was lifted "out of the so-called `political' arena and into the

conventional sphere of constitutional litigation" because here was discriminatory treatment of a racial minority violating the Fifteenth Amendment. "A statute which is alleged to have worked unconstitutional deprivations of petitioners' rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. . . . While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens, and only colored citizens, of [369 U.S. 186, 231] their theretofore enjoyed voting rights. That was not Colegrove v. Green. "When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right." 364 U.S., at 347 . 57 We have not overlooked such cases as In re Sawyer, 124 U.S. 200 , and Walton v. House of Representatives, 265 U.S. 487 , which held that federal equity power could not be exercised to enjoin a state proceeding to remove a public officer. But these decisions explicitly reflect only a traditional limit upon equity jurisdiction, and not upon federal courts' power to inquire into matters of state governmental organization. This is clear not only from the opinions in those cases, but also from White v. Berry, 171 U.S. 366 , which, relying on Sawyer, withheld federal equity from staying removal of a federal officer. Wilson v. North Carolina, 169 U.S. 586 , simply dismissed an appeal from an unsuccessful suit to upset a State's removal procedure, on the ground that the constitutional claim presented - that a jury trial was necessary if the removal procedure was to comport with due process requirements - was frivolous. Finally, in Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548 , where losing candidates attacked the constitutionality of Kentucky's resolution of a contested gubernatorial election, the Court refused to consider the merits of a claim posited upon [369 U.S. 186, 232] the Guaranty Clause, holding it presented a political question, but also held on the merits that the ousted candidates had suffered no deprivation of property without due process of law. 58 Since, as has been established, the equal protection claim tendered in this case does not require decision of any political question, and since the presence of a matter affecting state government does not render the case nonjusticiable, it seems appropriate to examine again the reasoning by which the District Court reached its conclusion that the case was nonjusticiable. We have already noted that the District Court's holding that the subject matter of this complaint was nonjusticiable relied upon Colegrove v. Green, supra, and later cases. Some of those concerned the choice of members of a state legislature, as in this case; others, like Colegrove itself and earlier precedents, Smiley v. Holm, 285 U.S. 355 , Koenig v. Flynn, 285 U.S. 375 , and Carroll v. Becker, 285 U.S. 380 , concerned the choice of Representatives in the Federal Congress. Smiley, Koenig and Carroll settled the issue in favor of justiciability of questions of congressional redistricting. The Court followed these precedents in Colegrove although over the dissent of three of the seven Justices who participated in that decision. On the issue of justiciability, all four Justices comprising a majority relied upon Smiley v. Holm, but in two opinions, one for three Justices, 328 U.S., at 566 , 568, and a separate one by Mr. Justice Rutledge, 328 U.S., at 564 . The argument that congressional redistricting problems presented a "political question" the resolution of which was confided to Congress might have been rested upon Art. I, 4, Art. I, 5, Art. I, 2, and Amendment [369 U.S. 186, 233] XIV, 2. Mr. Justice Rutledge said: "But for the ruling in Smiley v. Holm, 285 U.S. 355 , I should have supposed that the provisions of the Constitution, Art. I, 4, that "The Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . .'; Art. I, 2 [but see Amendment XIV, 2], vesting in Congress the duty of apportionment of representatives among the several states `according to their respective Numbers'; and Art. I, 5, making each House the sole judge of the qualifications of its own

members, would remove the issues in this case from justiciable cognizance. But, in my judgment, the Smiley case rules squarely to the contrary, save only in the matter of degree. . . . Assuming that that decision is to stand, I think . . . that its effect is to rule that this Court has power to afford relief in a case of this type as against the objection that the issues are not justiciable." 328 U.S., at 564 -565. Accordingly, Mr. Justice Rutledge joined in the conclusion that the case was justiciable, although he held that the dismissal of the complaint should be affirmed. His view was that "The shortness of the time remaining [before forthcoming elections] makes it doubtful whether action could, or would, be taken in time to secure for petitioners the effective relief they seek. . . . I think, therefore, the case is one in which the Court may properly, and should, decline to exercise its jurisdiction. Accordingly, the judgment should be affirmed and I join in that disposition of the cause." 328 U.S., at 565 -566. 59 [369
U.S. 186, 234]

Article I, 2, 4, and 5, and Amendment XIV, 2, relate only to congressional elections and obviously do not govern apportionment of state legislatures. However, our decisions in favor of justiciability even in light of those provisions plainly afford no support for the District Court's conclusion that the subject matter of this controversy presents a political question. Indeed, the refusal to award relief in Colegrove resulted only from the controlling view of a want of equity. Nor is anything contrary to be found in those per curiams that came after Colegrove. This Court dismissed the appeals in Cook v. Fortson and Turman v. Duckworth, 329 U.S. 675 , as moot. MacDougall v. Green, 335 U.S. 281 , held only that in that case equity would not act to void the State's requirement that there be at least a minimum of support for nominees [369 U.S. 186, 235] for state-wide office, over at least a minimal area of the State. Problems of timing were critical in Remmey v. Smith, 342 U.S. 916 , dismissing for want of a substantial federal question a three-judge court's dismissal of the suit as prematurely brought, 102 F. Supp. 708; and in Hartsfield v. Sloan, 357 U.S. 916 , denying mandamus sought to compel the convening of a three-judge court - movants urged the Court to advance consideration of their case, "Inasmuch as the mere lapse of time before this case can be reached in the normal course of . . . business may defeat the cause, and inasmuch as the time problem is due to the inherent nature of the case . . . ." South v. Peters, 339 U.S. 276 , like Colegrove appears to be a refusal to exercise equity's powers; see the statement of the holding, quoted, supra, p. 203. And Cox v. Peters, 342 U.S. 936 , dismissed for want of a substantial federal question the appeal from the state court's holding that their primary elections implicated no "state action." See 208 Ga. 498, 67 S. E. 2d 579. But compare Terry v. Adams, 345 U.S. 461 . Tedesco v. Board of Supervisors, 339 U.S. 940 , indicates solely that no substantial federal question was raised by a state court's refusal to upset the districting of city council seats, especially as it was urged that there was a rational justification for the challenged districting. See 43 So.2d 514. Similarly, in Anderson v. Jordan, 343 U.S. 912 , it was certain only that the state court had refused to issue a discretionary writ, original mandamus in the Supreme Court. That had been denied without opinion, and of course it was urged here that an adequate state ground barred this Court's review. And in Kidd v. McCanless, 200 Tenn. 273, 292 S. W. 2d 40, the Supreme Court of Tennessee held that it could not invalidate the very statute at issue in the case at bar, but its holding rested on its state law of remedies, i. e., the state view of [369 U.S. 186, 236] de facto officers, 60 and not on any view that the norm for legislative apportionment in Tennessee is not numbers of qualified voters resident in the several counties. Of course this Court was there precluded by the adequate state ground, and in dismissing the appeal, 352 U.S. 920 , we cited Anderson, supra, as well as Colegrove. Nor does the Tennessee court's decision in that case bear upon this, for just as in Smith v. Holm, 220 Minn. 486, 19 N. W. 2d 914, and Magraw v. Donovan, 163 F. Supp. 184, 177 F. Supp. 803, a state court's inability to grant relief does not bar a federal court's assuming jurisdiction to inquire into alleged deprivation of federal constitutional rights. Problems of relief also controlled in Radford v. Gary, 352 U.S. 991 , affirming the District Court's refusal to mandamus the Governor to call a session of the legislature, to mandamus the

legislature then to apportion, and if they did not comply, to mandamus the State Supreme Court to do so. And Matthews v. Handley, 361 U.S. 127 , affirmed a refusal to strike down the State's gross income tax statute - urged on the ground that the legislature was malapportioned - that had rested on the adequacy of available state legal remedies for suits involving that tax, including challenges to its constitutionality. Lastly, Colegrove v. Barrett, 330 U.S. 804 , in which Mr. Justice Rutledge concurred in this Court's refusal to note the appeal from a dismissal for want of equity, is sufficiently explained by his statement in Cook v. Fortson, supra: "The discretionary exercise or nonexercise of equitable or declaratory judgment jurisdiction . . . in one case is not precedent in another case [369 U.S. 186, 237] where the facts differ." 329 U.S., at 678 , n. 8. (Citations omitted.) We conclude that the complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment. The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with this opinion. Reversed and remanded.

G.R. No. L-23127 April 29, 1971 FRANCISCO SERRANO DE AGBAYANI, plaintiff-appellee, vs. PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF OF PANGASINAN, defendants, PHILIPPINE NATIONAL BANK, defendant-appellant. Dionisio E. Moya for plaintiff-appellee. Ramon B. de los Reyes for defendant-appellant. FERNANDO, J.: A correct appreciation of the controlling doctrine as to the effect, if any, to be attached to a statute subsequently adjudged invalid, is decisive of this appeal from a lower court decision. Plaintiff Francisco Serrano de Agbayani, now appellee, was able to obtain a favorable judgment in her suit against defendant, now appellant Philippine National Bank, permanently enjoining the other defendant, the Provincial Sheriff of Pangasinan, from proceeding with an extra-judicial foreclosure sale of land belonging to plaintiff mortgaged to appellant Bank to secure a loan declared no longer enforceable, the prescriptive period having lapsed. There was thus a failure to sustain the defense raised by appellant that if the moratorium under an Executive Order and later an Act subsequently found unconstitutional were to be counted in the computation, then the right to foreclose the mortgage was still subsisting. In arriving at such a conclusion, the lower court manifested a tenacious adherence to the inflexible view that an unconstitutional act is not a law, creating no rights and imposing no duties, and thus as inoperative as if it had never been. It was oblivious to the force of the principle adopted by this Court that while a statute's repugnancy to the fundamental law deprives it of its character as a juridical norm, its having been operative prior to its being nullified is a fact that is not devoid of legal consequences. As will hereafter be explained, such a failing of the lower court

resulted in an erroneous decision. We find for appellant Philippine National Bank, and we reverse. There is no dispute as to the facts. Plaintiff obtained the loan in the amount of P450.00 from defendant Bank dated July 19, 1939, maturing on July 19, 1944, secured by real estate mortgage duly registered covering property described in T.C.T. No. 11275 of the province of Pangasinan. As of November 27, 1959, the balance due on said loan was in the amount of P1,294.00. As early as July 13 of the same year, defendant instituted extra-judicial foreclosure proceedings in the office of defendant Provincial Sheriff of Pangasinan for the recovery of the balance of the loan remaining unpaid. Plaintiff countered with his suit against both defendants on August 10, 1959, her main allegation being that the mortgage sought to be foreclosed had long prescribed, fifteen years having elapsed from the date of maturity, July 19, 1944. She sought and was able to obtain a writ of preliminary injunction against defendant Provincial Sheriff, which was made permanent in the decision now on appeal. Defendant Bank in its answer prayed for the dismissal of the suit as even on plaintiff's own theory the defense of prescription would not be available if the period from March 10, 1945, when Executive Order No. 32 1 was issued, to July 26, 1948, when the subsequent legislative act 2 extending the period of moratorium was declared invalid, were to be deducted from the computation of the time during which the bank took no legal steps for the recovery of the loan. As noted, the lower court did not find such contention persuasive and decided the suit in favor of plaintiff. Hence this appeal, which, as made clear at the outset, possesses merit, there being a failure on the part of the lower court to adhere to the applicable constitutional doctrine as to the effect to be given to a statute subsequently declared invalid. 1. The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes a mere scrap of paper. As the new Civil Code puts it: "When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws of the Constitution. 3 It is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or executive act contrary to its terms cannot survive. Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties may have acted under it and may have changed their positions. What could be more fitting than that in a subsequent litigation regard be had to what has been done while such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: "The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official." 4 This language has been quoted with approval in a resolution in Araneta v. Hill 5 and the decision in Manila Motor Co., Inc. v. Flores. 6 An even more recent instance is the opinion of Justice Zaldivar speaking for the Court in Fernandez v. Cuerva and Co. 7 2. Such an approach all the more commends itself whenever police power legislation intended to promote public welfare but adversely affecting property rights is involved. While subject to be assailed on due process, equal protection and non-impairment grounds, all that is required to avoid the corrosion of invalidity is that the rational basis or reasonableness test is satisfied. The legislature on the whole is not likely to allow an enactment suffering, to paraphrase Cardozo, from the infirmity of out running the bounds of reason and resulting in sheer oppression. It may be of course that if challenged, an adverse judgment could be the result, as its running counter to the Constitution could still be shown. In the meanwhile though, in the normal course of things, it has been acted upon by the public and accepted as valid. To ignore such a fact would indeed be the fruitful parent of injustice. Moreover, as its constitutionality is conditioned on its being fair or reasonable, which in turn is dependent on the actual situation, never static but subject to change, a measure valid when enacted may subsequently, due to altered circumstances, be stricken down. That is precisely what happened in connection with Republic Act No. 342, the moratorium legislation, which continued Executive Order No. 32, issued by the then President Osmea, suspending the enforcement of payment of all debts and other monetary obligations payable by war sufferers. So it was explicitly held in Rutter v. Esteban 8 where such enactment was considered in 1953 "unreasonable and oppressive, and should not be prolonged a minute longer, and, therefore, the same should be declared null and void and without effect." 9 At the time of the issuance of the above Executive Order in 1945 and of the passage of such Act in 1948, there was a factual justification for the moratorium. The Philippines was confronted with an emergency of impressive magnitude at the time of her liberation from the Japanese military forces in 1945. Business was at a standstill. Her economy lay prostrate. Measures, radical measures, were then devised to tide her over until some semblance of normalcy could be restored and an improvement in her economy noted. No wonder then that the suspension of enforcement of payment of the obligations then existing was declared first by executive order and then by legislation. The Supreme Court was right therefore in rejecting the contention that on its face, the Moratorium Law was unconstitutional, amounting as it did to the impairment of the obligation of contracts. Considering the circumstances confronting the legitimate government upon its return to the Philippines, some such remedial device was needed and badly so. An unyielding insistence then on the rights to property on the part of the creditors was not likely to meet with judicial sympathy. Time passed however, and conditions did change. When the legislation was before this Court in 1953, the question before it was its satisfying the rational basis test, not as of the time of its enactment but as of such date. Clearly, if then it were found unreasonable, the right to non-impairment of contractual obligations must prevail over the assertion of community power to remedy an existing evil. The Supreme Court was convinced that such indeed was the case. As stated in the opinion of Justice Bautista Angelo:

"But we should not lose sight of the fact that these obligations had been pending since 1945 as a result of the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement is still inhibited because of the enactment of Republic Act No. 342 and would continue to be unenforceable during the eight-year period granted to prewar debtors to afford them an opportunity to rehabilitate themselves, which in plain language means that the creditors would have to observe a vigil of at least twelve (12) years before they could affect a liquidation of their investment dating as far back as 1941. This period seems to us unreasonable, if not oppressive. While the purpose of Congress is plausible, and should be commended, the relief accorded works injustice to creditors who are practically left at the mercy of the debtors. Their hope to effect collection becomes extremely remote, more so if the credits are unsecured. And the injustice is more patent when, under the law the debtor is not even required to pay interest during the operation of the relief, unlike similar statutes in the United States. 10 The conclusion to which the foregoing considerations inevitably led was that as of the time of adjudication, it was apparent that Republic Act No. 342 could not survive the test of validity. Executive Order No. 32 should likewise be nullified. That before the decision they were not constitutionally infirm was admitted expressly. There is all the more reason then to yield assent to the now prevailing principle that the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached. 3. Precisely though because of the judicial recognition that moratorium was a valid governmental response to the plight of the debtors who were war sufferers, this Court has made clear its view in a series of cases impressive in their number and unanimity that during the eight-year period that Executive Order No. 32 and Republic Act No. 342 were in force, prescription did not run. So it has been held from Day v. Court of First Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down only last year. What is deplorable is that as of the time of the lower court decision on January 27, 1960, at least eight decisions had left no doubt as to the prescriptive period being tolled in the meanwhile prior to such adjudication of invalidity. 13 Speaking of the opposite view entertained by the lower court, the present Chief Justice, in Liboro v. Finance and Mining Investments Corp . 14 has categorized it as having been "explicitly and consistently rejected by this Court." 15 The error of the lower court in sustaining plaintiff's suit is thus manifest. From July 19, 1944, when her loan matured, to July 13, 1959, when extra-judicial foreclosure proceedings were started by appellant Bank, the time consumed is six days short of fifteen years. The prescriptive period was tolled however, from March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953, when the decision of Rutter v. Esteban was promulgated, covering eight years, two months and eight days. Obviously then, when resort was had extrajudicially to the foreclosure of the mortgage obligation, there was time to spare before prescription could be availed of as a defense. WHEREFORE, the decision of January 27, 1960 is reversed and the suit of plaintiff filed August 10, 1959 dismissed. No costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Teehankee, Barredo, Villamor, and Makasiar, JJ., concur. Footnotes
1 Under Executive Order No. 32 providing for a debt moratorium, it was specifically stated: "Enforcement of payment of all debts and other monetary obligations payable within the Philippines, except debts and other monetary obligations entered into in any area after declaration by Presidential Proclamation that such area has been freed from enemy occupation and control, is temporarily suspended pending action

by the Commonwealth Government." Executive Order No. 32 was issued on March 10, 1945. Executive Order No. 32 amended Executive Order No. 25 (1944). 2 According to the declaration of policy in Republic Act No. 342 (1948), Executive Order No. 32 remains in full force and effect for the war sufferers as for them the emergency created by the last war was still existent. Then came this specific provision: "All debts and other monetary obligations payable by private parties within the Philippines originally incurred or contracted before December 8, 1941, and still remaining unpaid, any provision or provisions in the contract creating the same or in any subsequent agreement affecting such obligation to the contrary notwithstanding, shall not be due and demandable for a period of eight (8) years from and after settlement of the war damage claim of the debtor by the United States Philippine War Damage Commission, without prejudice, however, to any voluntary agreement which the interested parties may enter into after the approval of this Act for the settlement of said obligations." Sec. 2. 3 ART. 7. In the classic language of Justice Field: "An unconstitutional Act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been." Norton v. Shelly County, 118 US 425 (1886). 4 Chicot County Drainage Dist. v. Baxter States Bank 308 US 371, 374 (1940). 5 93 Phil. 1002 (1953). 6 99 Phil. 738 (1956). 7 L-21114, Nov. 28, 1967, 21 SCRA 1095. 8 93 Phil. 68 (1953). Rutter v. Esteban was subsequently cited in the following cases: Araneta v. Hill, 93 Phil. 1002 (1953); Londres v. National Life Insurance Co., 94 Phil. 627 (1954); Dizon v. Ocampo, 94 Phil. 803 (1954); De Leon v. Ibaez, 95 Phil. 119 (1954); Picornell and Co. v. Cordovan 95 Phil. 632 (1954); Berg v. Teus, 96 Phil. 102 (1954); Herrera v. Arellano, 97 Phil. 776 (1955); Chua Lamko v. Dioso, 97 Phil. 821 (1955); Rio y Cia v. Sandoval, 100 Phil. 407 (1956); Gonzaga v. Rehabilitation Finance Corp., 100 Phil. 892 (1957); Pacific Commercial Co. v. Aquino, 100 Phil. 961 (1957); Bachrach motor Co., Inc. v. Chua Tua Hian, 101 Phil. 194 (1957); Liboro v. Finance and Mining Investment Corp., 102 Phil. 489 1957); Rio y Compania v. Jolkipli 105 Phil. 447 (1959); People v. Jolliffe 105 Phil. 677 (1959); Uy Hoo and Co., Inc. v. Tan, 105 Phil. 717 (1959); Compania Maritima v. Court of Appeals and Libby, McNeill and Libby (Phil.), Inc., 108 Phil. 469 (1960). 9 Ibid., p. 82. The same conclusion obtains in the opinion of the Court as regards Executive Order No. 32. 10 Ibid., p. 77. 11 94 Phil. 816. 12 L-24137, January 30, 1970, 31 SCRA 219, citing Republic v. Grijaldo, L-20240, December 31, 1965, 15 SCRA 681; Republic v. Rodriguez, L-18967, January 31, 1966, 16 SCRA 53; Nielson and Co., Inc. v. Lepanto Consolidated Mining Co., L-21601, December 28, 1968, 26 SCRA 540. 13 Day v. Court of First Instance of Tarlac, 94 Phil. 816 (1954); Montilla v. Pacific Commercial Company, 98 Phil. 133 (1955); Pacific Commercial Co. v. Aquino, 100 Phil. 961 (1957); Bachrach Motor Co., Inc. v. Chua Tua Tian 101 Phil. 184 (1957); Liboro v. Finance and Mining Investment Corp., 102 Phil. 489 (1957); Rio y Compania v. Jolkipli, 105 Phil. 447 (1959); People v. Jollifee, 105 Phil. 677 (1959) ; Uy Hoo & Co., Inc. v. Tan, 105 Phil. 716 (1959). 14 102 Phil. 489 (1957). 15 Ibid., p. 493. The Lawphil Project - Arellano Law Foundation

G.R. Nos. L-32282-83 November 26, 1970 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. MARIO J. GUTIERREZ, Judge of the Court of First Instance of Ilocos Sur, CAMILO PILOTIN, FRANCISCO PIANO, DELFIN PIANO PEDRO PATAO, VINCENT CRISOLOGO, CAMILO PIANO, CAMILO PATAO, PEDRING PIANO, ISIDRO PUGAL, ANTONIO TABULDO, LORENZO PERALTA, VENANCIO PACLEB ANTONIO PIANO, FERMIN PUGAL, CARLITO PUGAL, FLOR PIANO, ERNING ABANO and EIGHTY-TWO (82) JOHN DOES, respondents. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Conrado T. Limcaoco, Solicitor Eduardo C. Abaya and Special Attorney Juan A. Sison for petitioners. Adaza, Adaza and Adaza for respondent Erning Abano. Crisologo Law Office and Pedro Quadra for respondent Camilo Pilotin. Juan T. David for respondent Vincent Crisologo.

Augusto Kalaw as private prosecutor. REYES, J.B.L., J.: Petition for writs of certiorari and mandamus, with preliminary injunction, filed by the Solicitor General and State Prosecutors, to annul and set aside the order of Judge Mario J. Gutierrez of the Court of First Instance of Ilocos Sur (respondent herein), dated 20 July 1970, denying the prosecution's urgent motion to transfer Criminal Case Nos. 47-V and 48-V of said Court of First Instance, entitled "People vs. Pilotin, et al.," to the Circuit Criminal Court of the Second Judicial District; to direct the respondent Judge to effectuate such transfer; and to restrain the trial of the cases aforesaid in the Court of First Instance of Ilocos Sur, sitting in Vigan, capital of the province. In the morning of 22 May 1970, a group of armed persons descended on barrio Ora Centro, municipality of Bantay, Province of Ilocos Sur, and set fire to various inhabited houses therein. On the afternoon of the same day, in barrio Ora Este of the same municipality and province, several residential houses were likewise burned by the group, resulting in the destruction of various houses and in the death of an old woman named Vicenta Balboa. After investigation by the authorities, the provincial fiscal, with several state prosecutors assigned by the Department of Justice to collaborate with him, on 10 June 1970 filed in the Court of First Instance of Vigan, Ilocos Sur, two informations (Criminal Cases 47-V for arson with homicide and 48-V for arson) charging that the seventeen private respondents herein, together with 82 other unidentified persons, "confederating, conspiring, confabulating and helping one another, did then and there willfully, unlawfully and feloniously burn or cause to be burned several residential houses, knowing the said houses to be occupied" and belonging to certain persons named in the filed informations in barrios Ora Este and Ora Centro, Bantay, Ilocos Sur (Petition, Annexes B and B-1). Accused Camilo Pilotin and Vincent Crisologo furnished bail, and on 15 June 1970 voluntarily appeared before respondent Judge Gutierrez, were arraigned and pleaded not guilty. Trial was then set for 27, 28 and 29 July 1970. It appears that on the same day, 15 June, the Secretary of Justice issued Administrative Order No. 221, authorizing Judge Lino Anover, of the Circuit Criminal Court of the Second Judicial District, with official station at San Fernando, La Union, to hold a special term in Ilocos Sur, from and after 1 July 1970. Three days thereafter, on 18 June 1970, the Secretary further issued Administrative Order No. 226, authorizing Judge Mario Gutierrez to transfer Criminal Cases Nos. 47-V and 48-V to the Circuit Criminal Court, "in the interest of justice and pursuant to Republic Act No. 5179, as implemented by Administrative Order Nos. 258 and 274" of the Department of Justice. On 22 June 1970, the prosecution moved the respondent judge for a transfer of cases 47-V and 48-V to the Circuit Criminal Court, invoking the Administrative Orders just mentioned and calling attention to the circumstance that they were issued at the instance of the witnesses seeking transfer of the hearing from Vigan to either San Fernando, La Union, or Baguio City, for reasons of security and personal safety, as shown in their affidavits. The accused vigorously opposed such transfer, and on 20 July 1970, the respondent judge declined the transfer sought, on the ground that Administrative Order No. 258 only provided for transfer of cases to the Circuit Criminal Court where the interest of justice required it for the more expeditious disposal of the cases, and in the cases involved the accused had already pleaded; that if the objective of the proposed transfer was to subsequently obtain a change of venue from the Supreme Court under Section 4 of Republic Act No. 5179 the same should

have been done right at the very inception of these cases. In view of the lower court's denial of the motion to transfer the cases to the Circuit Criminal Court, the prosecution resorted to Us for writs of certiorari and mandamus, charging abuse of discretion and praying this Court to set aside the order of denial of the transfer and to compel the respondent Court of First Instance to remand the cases to the Circuit Criminal Court of the Second Judicial District, as well as to authorize the latter to try the cases (47-V and 48-V) at either San Fernando, La Union, or Baguio City. Respondents in their answer denied any abuse of discretion in view of the fact that the Administrative Order No. 226 merely authorized the court below, but did not require or command it, to transfer the cases in question to the Circuit Criminal Court, and likewise denied that the circumstances justified any such transfer. At petitioners' request this Court enjoined the respondent Judge Gutierrez from proceeding with the trial of the cases until further orders. We agree with respondents that the present laws do not confer upon the Secretary of Justice power to determine what court should hear specific cases. Any such power, even in the guise of administrative regulation of executive affairs, trenches upon the time-honored separation of the Executive and the Judiciary; and while not directly depriving the courts of their independence, it would endanger the rights and immunities of the accused or civil party. It could be much too easily transformed into a means of predetermining the outcome of individual cases, so as to produce a result in harmony with the Administration's preferences. The creation by Republic Act No. 5179 of the Circuit Criminal Courts for the purpose of alleviating the burden of the regular Courts of First Instance, and to accelerate the disposition of criminal cases pending or to be filed therein, nowhere indicates an intent to permit the transfer of preselected individual cases to the circuit courts. Neither do Administrative Orders Nos. 258 and 274 evidence any such intention; particularly since Administrative Order No. 258, Series of 1968, in Section 2 of its Part V, as confirmed by Administrative Order No. 274 of the same year, in Section 3 of Part III thereof, provides that the transfer to Circuit Criminal Courts of cases pending in the regular Courts of First Instance should be effected by raffle, chance here operating to nullify any executive arbitration of what particular cases should be apportioned to either tribunal. The very terms of Administrative Order No. 226, issued on 18 June 1970 by Secretary of Justice Makasiar, relied upon by the petitioners, in merely authorizing, and not directing, Judges Arciaga and Gutierrez of the Court of First Instance of Ilocos Sur to transfer Criminal Cases Nos. 44-V and 47-V (People vs. Pilotin, et al.) to the Circuit Criminal Court of the Second Judicial District, reveals that the Secretary himself was aware of the impropriety of imperatively directing transfer of specified cases. Respondent Judge Gutierrez, therefore in construing Administrative Order No. 226 as permissive and not mandatory, acted within the limits of his discretion and violated neither the law nor the Executive Orders heretofore mentioned. It is unfortunate, however, that in refusing to consider Department Administrative Order No. 226 of the Secretary of Justice as mandatory respondent Judge Gutierrez failed to act upon the contention of the prosecuting officers that the cases against private respondents herein should be transferred to the Circuit Criminal Court of the Second Judicial District because a miscarriage of justice was impending, in view of the refusal of the prosecution witnesses to testify in the court sitting in Vigan, Ilocos Sur, where they felt their lives would be endangered. This claim was buttressed by the affidavits of the injured parties and prosecution witnesses, reaffirming their fear to appear in Vigan to testify in cases 47-V and 48-V and expressing their willingness to testify if the cases are heard outside of Ilocos Sur, where they can be free from

tension and terrorism (Petition, Annex J). The fear thus expressed can not be considered fanciful and unfounded when account is taken of the circumstances that the informations filed in the Court of First Instance of Ilocos Sur show that of the one hundred armed participants in the burning of the houses at barrios Ora Este and Ora Centro, Municipality of Bantay, some eighty-two (82) are still unidentified and at large; that one of the accused, private respondent Vincent Crisologo, belongs to an influential family in the province, being concededly the son of the Congressman for the first district of Ilocos Sur and of the lady Governor that the reluctant witnesses are themselves the complainants in the criminal cases, and, therefore, have reasons to fear that attempts will be made to silence them; that it is not shown that the Executive branch is able or willing to give these witnesses full security during the trial and for a reasonable time thereafter, that even if armed security escorts were to be provided, the same would be no guarantee against the possibility of murderous assault against the affiant witnesses, as recent events have proved; that Constabulary reports (Annex H) show that between 1 January and 31 May 1970 no less than 78 murders have been reported committed in said province, of which number only 21 were solved; and, finally, that the promotion and confirmation of respondent Judge Mario Gutierrez from Clerk of Court to Judge of the Court of First Instance of the Second Judicial District, Branch III, was actively supported by Congressman and Governor Crisologo, parents of accused Vincent Crisologo (Annexes H, H1, and K to N-2 to petitioner's supplemental memorandum). This just refusal to testify in Ilocos Sur manifested by the complaining witnesses, who had on a previous occasion freely given evidence before the investigators in Manila, renders manifest the imperious necessity of transferring the place of trial to a site outside of Ilocos Sur, if the cases are to be judicially inquired into conformably to the interest of truth and justice and the State is to be given a fair chance to present its side of the case. The respondents vigorously contend that a transfer of the trial site can not be made, because it is a long standing rule of criminal procedure in these Islands that one who commits a crime is amenable therefor only in the jurisdiction where the crime is committed, for the reason pointed out in U.S. vs. Cunanan, 26 Phil. 376, and People vs. Mercado, 65 Phil. 665, that the jurisdiction of a Court of First Instance in the Philippines is limited to certain well-defined territory and they can not take jurisdiction of persons charged with one offense committed outside of that limited territory, and they invoke Rule 110, Section 14 (a), of the Revised Rules of Court providing that "in all criminal prosecutions the action shall be instituted and tried in the court of the municipality or province wherein the offense was committed or any one of the essential ingredient thereof took place." It is well to note that this Court has explained in Beltran vs. Ramos, 96 Phil. 149, 150, that the purpose of the rule invoked by accused respondents herein was "not to compel the defendant to move to and appear in a different court from that of the province where the crime was committed, as it would cause him great inconvenience in looking for his witnesses and other evidence in another place." Where the convenience of the accused is opposed by that of the prosecution, as in the case at bar, it is but logical that the court should have power to decide where the balance of convenience or inconvenience lies, and to determine the most suitable place of the trial according to the exigencies of truth and impartial justice. In the particular case before Us, to compel the prosecution to proceed to trial in a locality where its witnesses will not be at liberty to reveal what they know is to make a mockery of the judicial process, and to betray the very purpose for which courts have been established. Since the rigorous application of the general principle of Rule 110, Section 14 (a), would result here in preventing a fair and impartial inquiry into the actual facts of the case, it must be

admitted that the exigencies of justice demand that the general rule relied upon by accused respondents should yield to occasional exceptions wherever there are weighty reasons therefor. Otherwise, the rigor of the law would become the highest injustice " summum jus, summa in juria." The respondents accused can not complain that to transfer the trial to a site where the prosecution's witnesses can feel free to reveal what they know would be equivalent to railroading them into a conviction. Because regardless of the place where its evidence is to be heard, the prosecution will be always obligated to prove the guilt of the accused beyond reasonable doubt. The scales of justice clearly lean in favor of the prosecution being given full opportunity to lay its case before a proper arbiter: for a dismissal of the charges for lack of evidence is a verdict that the prosecution can neither challenge nor appeal. We must thus reject the idea that our courts, faced by an impasse of the kind now before Us, are to confess themselves impotent to further the cause of justice. The Constitution has vested the Judicial Power in the Supreme Court and such inferior courts as may be established by law (Article VIII, Section 13), and such judicial power connotes certain incidental and inherent attributes reasonably necessary for an effective administration of justice. The courts "can by appropriate means do all things necessary to preserve and maintain every quality needful to make the judiciary an effective institution of government" (Borromeo vs. Mariano, 41 Phil. 322). One of these incidental and inherent powers of courts is that of transferring the trial of cases from one court to another of equal rank in a neighboring site, whenever the imperative of securing a fair and impartial trial, or of preventing a miscarriage of justice, so demands. This authority was early recognized in England as inhering in the courts of justice even prior to the eighteenth century. The opinion in Crocker vs. Justices of the Superior Court, 208 Mass. 162, 21 Ann. Cases 1067, has shown how the eminent Lord Chief Justice Mansfield, in Rex vs. Cowle (Eng.) 2 Burr 834, decided in 1759, said that, in this respect, "the law is clear and uniform as far back as it can be traced." And in Reg. vs. Conway, 7 Jr. C. J. 507, the question was fully discussed, and all the judges appear to have agreed as to the power of the court, Cramption, Jr., saying at page 525:
There is another common-law right, equally open to defendants and prosecutors, ... that where it appears that either party cannot obtain a fair and impartial trial in the proper county, then this court ... has jurisdiction to take the case out of the proper county, as it is called, and to bring it into an indifferent county ... This jurisdiction to change the venue ... has been exercised by this court from a very early period. We have reported cases, where the doctrine is laid down in emphatic language; we have the practice of the Court of Queen's Bench in England independently of any practice of our own court ... The general jurisdiction of the court, in a proper case, to change the venue from one county to any other, cannot be the subject of doubt.

This power to transfer trial of criminal cases in furtherance of justice, exercised through writs of certiorari, has, according to the weight of authority, passed to the State Supreme Courts of the American Union. 1 In Cochecho R. Co. vs. Farrington , 26 N.H. 428, at page 436, it was held that the power to transfer the place of holding trials
became thoroughly engrafted upon the common law, long before the independence of this country; and from that time forth, not only has the practice prevailed in the courts of England, but the power is now exercised by the Courts of very many if not all of our states, either by force of express statute or the adoption of the common law in the jurisprudence of the same.

That such inherent powers are likewise possessed by the Philippine courts admits of no doubt, because they were organized on the American pattern with the enactment of the first

judicial organic law, Act 136, on 11 June 1901, by the Philippine Commission, then composed by a majority of able American lawyers, fully familiar with the institutions and traditions of the common law. In Alzua and Arnalot vs. Johnson, 21 Phil. 300, 333, this Court stated:
And it is safe to say that in every volume of the Philippine Reports, numbers of cases might be cited wherein recourse has been had to the rules, principles and doctrines of the common law in ascertaining the true meaning and scope of the legislation enacted in and for the Philippine Islands since they passed under American sovereignty. Among the earliest measures of the Philippine Commission, after the establishment of Civil Government under American sovereignty, was the enactment on June 11, 1901, of Act No. 136, "An Act providing for the organization of courts in the Philippine Islands." This Act in express terms abolished the then existing Audiencia or Supreme Court and Courts of First Instance, and substituted in their place the courts provided therein. It sets out in general terms the jurisdiction, duties, privileges, and powers of the new courts and their judges. The majority of the members of the body which enacted it were able American lawyers. The spirit with which it is informed, and indeed its very language and terminology would be unintelligible without some knowledge of the judicial systems of England and the United States. Its manifest purpose and object was to replace the old judicial system, with its incidents and traditions drawn from Spanish sources, with a new system modeled in all its essential characteristics upon the judicial systems of the United States. It cannot be doubted, therefore, that any incident of the former system which conflicts with the essential principles and settled doctrines on which the new system rests, must be held to be abrogated by the law organizing the new system.

While not expressly conferred by Act 136, We find it difficult to believe that the framers' intent was to deny, by silence, to the Philippine Courts, and particularly upon this Supreme Court, the inherent jurisdiction possessed by the English and American courts under their common law heritage to transfer the place of trial of cases in order to secure and promote the ends of justice, by providing fair and impartial inquiry and adjudication. Like the exemption of judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, upheld in the Alzua case as essentially inherent in the courts established by Act 136, even if not expressly provided for, the power to transfer the place of trials when so demanded by the interest of justice is equally essential and possesses no inferior rank. To it apply, mutatis mutandis, the words of this Court in the Alzua case just cited:
The grounds of public policy and the reasoning upon which the doctrine is based are not less forceful and imperative in these Islands than in the countries from which the new judicial system was borrowed; and an examination of the reasons assigned ... leaves no room for doubt that a failure to recognize it as an incident to the new judicial system would materially impair its usefulness and tend very strongly to defeat the ends for which it was established. (21 Phil. 333334)

Not only has there been since then no proof of any specific pronouncement, by Constitution or Congress, against the exercise by our Courts of the power discussed heretofore: on the contrary, the law establishing the Circuit Criminal Courts, Republic Act No. 5179, in its Section 4, provides express legislative recognition of its existence:
SEC. 4. The Circuit Criminal Courts may hold sessions anywhere within their respective districts: Provided, however, that cases shall be heard within the province where the crime subject of the offense was committed. And provided further, that when the interest of justice so demands, with prior approval of the Supreme Court, cases may be heard in a neighboring province within the district ... (Emphasis supplied)

Since the requirements for proper jurisdiction have been satisfied by the filing of the criminal case in question with the Court of First Instance of Ilocos Sur, in which province the offenses

charged were committed, according to the informations; since the holding of the trial in a particular place is more a matter of venue, rather than jurisdiction; since the interests of truth and justice can not be subserved by compelling the prosecution to proceed to trial in the respondent court in Ilocos Sur, because its witnesses, for just and weighty reasons, are unwilling to testify therein, and the respondent court, ignoring their safety, has abusively denied the motion to have the case transferred to another court, this Supreme Court, in the exercise of judicial power possessed by it under the Constitution and the statutes, should decree that the trial of cases 47-V and 48-V should be heard and decided by the Circuit Criminal Court of the Second Judicial District, either in San Fernando, La Union, or in Baguio City, at the earlier available date. This arrangement would have the advantage that the same trial judge could later be authorized to hear the defense witnesses in Vigan, if circumstances so demanded. Furthermore, the adjudication of the case by a judge other than respondent Gutierrez, if resulting in acquittal, would remove any doubt or suspicion that the same was in any way influenced by the trial Judge's being beholden to the Crisologo family. The solution thus adopted is in harmony with the ideals set by this Court in Manila Railroad Co. vs. Attorney General, 20 Phil. 523, where We said:
... The most perfect procedure that can be devised is that which gives opportunity for the most complete and perfect exercise of the powers of the court within the limitations set by natural justice. It is that one which, in other words, gives the most perfect opportunity for the powers of the court to transmute themselves into concrete acts of justice between the parties before it. The purpose of such a procedure is not to restrict the jurisdiction of the court over the subject matter but to give it effective facility in righteous action. It may be said in passing that the most salient objection which can be urged against procedure today is that it so restricts the exercise of the court's power by technicalities that part of its authority effective for justice between the parties is many times in inconsiderable portion of the whole. The purpose of procedure is not to thwart justice . Its proper aim is to facilitate the application of justice to the rival claims of contending parties. It was created not to hinder and delay but to facilitate and promote the administration of justice. It does not constitute the thing itself which courts are always striving to secure to litigants. It is designed as the means best adapted to obtain that thing. In other words, it is a means to an end. It is the means by which the powers of the court are made effective in just judgments. When it loses the character of the one and takes on that of the other the administration of justice becomes incomplete and unsatisfactory and lays itself open to grave criticism. (Manila Railroad Co. v. Attorney-General, 20 Phil. 523, 529 [1911]. Emphasis and paragraphing supplied.)

In resume, this Court holds, and so rules: (1) That Republic Act No. 5179 creating the Circuit Criminal Courts did not, and does not, authorize the Secretary of Justice to transfer thereto specified and individual cases; (2) That this Supreme Court, in the exercise of the Judicial Power vested by the Constitution upon it and other statutory Courts, possesses inherent power and jurisdiction to decree that the trial and disposition of a case pending in a Court of First Instance be transferred to another Court of First Instance within the same district whenever the interest of justice and truth so demand, and there are serious and weighty reasons to believe that a trial by the court that originally had jurisdiction over the case would not result in a fair and impartial trial and lead to a miscarriage of justice. (3) That in the present case there are sufficient and adequate reasons for the transfer of the hearing of Criminal Cases Nos. 47-V and 48-V of the Court of First Instance of Ilocos Sur to the Circuit Criminal Court of the Second Judicial District, in the interest of truth and justice.
IN VIEW OF THE FOREGOING, the writs of certiorari and mandamus prayed for are granted; the order of the respondent Court of First Instance of Ilocos Sur, dated 20 July 1970, is

sustained in so far as it holds that the Administrative Order No. 221 of the Department of Justice is not mandatory, but only directory; nevertheless, said order is declared in grave abuse of discretion and set aside in so far as it declines to transfer the trial of its cases Nos. 47-V and 48V to another court within the district; and said respondent Court is accordingly directed and ordered to remand the two criminal cases aforesaid to the Circuit Criminal Court of the Second Judicial District for hearing of the evidence for the prosecution either in Baguio or San Fernando, La Union, at the earliest available date, and such other proceedings as the Circuit Criminal Court may determine in the interest of justice.

The accused are required to file bail bonds to answer for their appearance at the trial and sentence by the Circuit Criminal Court for the Second Judicial District, in the same amount, and under the same terms and conditions as their present bail bonds, which will be replaced by those herein ordered, all within fifteen (15) days from finality of this decision. No special pronouncement as to costs. Makalintal, Zaldivar, Castro and Teehankee, JJ., concur. Concepcion, C.J., took no part. Villamor, J., reserves his vote. Dizon and Makasiar, JJ., are on leave.

Separate Opinions
FERNANDO, J., concurring: The learned and scholarly opinion of Justice J.B.L. Reyes renders crystal-clear why the decision reached by this Court should be what it is. It is a manifestation of the jurist's art at its most exemplary. It belies the belief not infrequently given utterance that hard cases make bad law. The problem before us is unique and unprecedented as far as our previous decisions go. It calls for a resolution far-reaching in its consequences and far-flung in its implications. Fortunately for the administration of justice according to law, there is the recognition of power vested in this Court, in the past perhaps only imperfectly discerned but nonetheless in existence, to be utilized whenever there is need to do so. This is one such occasion. Even without resort then to precedents coming from jurisdictions after which our judicial system was patterned, the same result would have been reached. For only thus, to paraphrase Cardozo, would the flexibility and the creativeness of the judicial process assert themselves. The opinion of Justice J.B.L., Reyes therefore calls for assent, which I readily yield. Nor does it seem inappropriate if it be stressed that the conclusion reached by the Court is solidly buttressed not only in law as history but likewise in law as logic and as social control. Hence this brief concurring opinion, which likewise will afford me the opportunity to give expression to the view that the Constitution and the proceedings in the Constitutional Convention of 1934-1935 point unerringly to the conclusion that this Court as the sole body vested with judicial power by the fundamental law itself is not devoid of supervisory authority over inferior courts. Necessarily the prerogative to transfer the venue of criminal prosecutions whenever there is a persuasive showing that there would be a failure of justice is therein included. On

such an assumption, I do not feel called upon to inquire into any asserted authority, even if denominated administrative, of an alter ego of the Executive, the Secretary of Justice, over the lower courts. For my belief gets stronger with the years that it would be difficult to assert that such a competence, even as thus limited, is warranted under a Constitution based on the doctrine of separation of powers and necessarily committed to the principle of judicial independence. 1. We start with the grant by the Constitution of Judicial power to this Court and to such inferior courts as may be established by law. 1 Thus is conferred the authority to decide cases through the ascertainment of facts and the application of the law, involving many a time its interpretation. 2It connotes, in the language of the decision, "the imperative of securing a fair and impartial trial, or of preventing a miscarriage of justice. ...." 3Where, as this did develop in this case, there is more than a probability of an impasse with the witnesses for the prosecution displaying the utmost reluctance to testify if the trial would be held in Vigan, entailing the risk that there be, again in the language of the opinion, "a mockery of the judicial process." 4it would appear undeniable, and we have so held today, that this Court is not to be denied the necessary competence to set matters right. It is not to fold its hands as if in helpless submission to a binding decree of Providence but must meet the problem squarely, possessed of power adequate to cope with such an exigency. In the same way that the two other coordinate departments, the Executive and Congress, being constitutional organs, can rely on the fundamental law to justify the exercise of certain prerogatives, 5 so may this Court, the only constitutional court, exercise supervision over all other judicial agencies thereafter legislatively created, appropriately termed by the Constitution as inferior courts. There would be a void in the framework of government thus established if there is no official body of a higher rank that can take the necessary steps to avoid a frustration of the exercise of judicial power. It is my firm conviction that neither the Presidency nor Congress can rightfully be entrusted with such a task. If it were thus, then the doctrine of separation of powers becomes a myth. Such an approach necessarily and logically compel the conclusion that the so called administrative supervision exercised by the Secretary of Justice is, to put it at its mildest, infected with the gravest doubts as to its constitutionality. There is no need to go that far to reach a decision in this case as is so aptly demonstrated in the opinion of the Court. What appears to me undisputed is that where the question partakes of a judicial character, only this Court can perform that function and trace its source to the Constitution itself. That is to free the Constitution from the reproach that a situation is left unprovided for. What is more, it assures the utmost respect for the principle that like the other two coordinate and co-equal branches, Court is likewise the recipient of power conferred by the Constitution itself. 6 2. So much for law from the standpoint of analytical jurisprudence of law as logic. If the matter be viewed from the approach found congenial by sociological jurists, law as one of the most effective forms of social control, the same conclusion appears to be inescapable. This is to examine legal institutions in terms of how they function. It certainly would be a blot on the administration of justice if by the reluctance of witnesses to testify, based on what they consider to be a feeling that cannot be stigmatized under the circumstances as having no basis in reason, no trial could be had of a criminal case. It is a matter of great public interest that crime should not go unpunished. Of course, it is equally important that the rights of whoever is accused are duly safeguarded. Where as in this case an impasse is likely to occur, in itself an alarming symptom of a breakdown in the orderly legal processes, the loss of public

confidence in the rule of law itself is incalculable. That is an eventuality which at all pains must be avoided. The only question is how. If the legal doctrine and principles, which under the system of legal norms followed must be grounded in the Constitution itself do not recognize such a competence in this Court, then for some all may well be lost. It would be unthinkable, again given the assumption, not entirely without basis, that the two other branches of the government cannot escape political considerations, to assume that either Congress or the Executive can be trusted to take care of such a situation. Nor would it do to leave such matters in the hands of the lower courts, unless whatever is decided by them is subject to correction and review by the only constitutional court, certainly vested with the needed supervisory authority. It would thus appear, if a breakdown in the legal system is to be averted, that the power of this Court is undeniable. There would seem to be no other way to avoid a serious disruption in the legal order. The above considerations necessarily lead me to yield a full concurrence with what has been so persuasively and ably put forth in the masterly opinion of Justice J.B.L. Reyes. December 5, 1970 BARREDO, J., concurring: The accuracy of the technical bases as well as the unerring logic of the resolution of the various facets of this case evidence in the main opinion written by our erudite colleague Mr. Justice J.B.L. Reyes could not but impel the unanimous assent given thereto by the members of this Court. Indeed, I could give the best evidence of my full concurrence therein by merely signing the same without this separate opinion. I feel, however, that the impact of this decision is of such transcendental importance to the administration of justice in this country, particularly now when some sectors of our people make no secret of lingering doubts as to the fairness and impartiality by judicial actuations and decisions, that my duty as a member of this highest tribunal of the land calls for more than just the giving of my vote in favor thereof. I consider it incumbent upon me, since none of my brethren seems to be minded to do it, to project more emphatically certain relevant matters, the significance of which should go hand in hand with the resolution of the case itself. I can neither control nor conceal the feeling of full satisfaction that overwhelms me now, because I consider this decision as probably the first one of national importance, in a long time, that will receive universal and unqualified approval throughout the length and breath of this Republic. I am sure it will yield for our constitutional government as a whole and for the judiciary in particular a rich harvest of regained trust and confidence in the administration of justice. This decision is a great leap forward. We are shaking away from a long standing jurisprudential rule; We are casting aside technical procedural roadblocks; We are here and now proclaiming to all and sundry the plenitude, under the Constitution, of Our power and authority to "insure to (our people) and their posterity, the blessings of independence under a regime of justice" (Preamble of the Constitution) by holding that the "judicial power ... vested in ... (the) Supreme Court" necessarily carries with it the power to lay down procedures that will effectively and fully guarantee, as far as it is humanly possible to do so, that substantial justice shall not be defeated thru technicalities of procedure; and what is most important today, as I view it, is that this is one decision the essence of which spells simple justice that will be plainly understood by the common man. In the clearest terms, this Court holds in effect in this decision that inspite of the traditional rule that a person charged with an offense may not be tried in a province outside of the one ill which the alleged offense or any essential ingredient thereof has been committed, it is the duty of the corresponding trial court, with the

approval of the Supreme Court, to see to it that when the demands of justice require it, the venue is moved to another province wherein the circumstantial environment will insure a full disclosure of all material facts essential in the pursuit of truth and justice. Surely, the common man would not understand why the Supreme Court in whom the totality of judicial power is vested by the Constitution would not have the authority and the right, nay the duty, to prevent a trial from being held in a place where it would be nothing more than a farce and an empty show, the final chapter of which may have already been prewritten, even independently of the honesty and integrity of the presiding judge, because of external factors and forces that impede the witnesses from making a free and fearless exposition of what they know. I am exceedingly happy that by this decision, the common man will understand that neither the Constitution nor this Court will ever be found wanting in what is needed top render justice in its truest sense. Now, for some views of my own on the specific legal issues raised by the parties in their pleadings. The problem revolves around the power of the Secretary of the Department of Justice vis-a-vis the operation of the Circuit Criminal Courts created by Republic Act 5179. The People contends that by Administrative Order 258 and 271, Series of 1968 and Administrative Order No. 226, Series of 1970, of the Secretary of Justice, issued pursuant allegedly to Republic Act 5179, (presumably Section 8 thereof) the transfer of the criminal cases herein involved, Criminal Cases Nos. 47-V and 48-V of the Court of First Instance of Ilocos Sur to the Circuit Criminal Court of the Second Judicial District is legally justifiable. On the other hand, the defense submits that under the uniformly announced doctrine of this Court regarding the jurisdictional nature of the venue of criminal cases and principally because to give effect to the administrative orders aforementioned would be impairing the independence of the judiciary, the accused in aforesaid cases must be tried in Vigan, Ilocos Sur, by the Court of First Instance in which, it is a fact, the case was filed on June 15, 1970, the very day Administrative Order No. 221 of the Secretary of Justice authorizing Judge Lino Anover of the Circuit Criminal Court to hold sessions in Vigan beginning July 1, 1970 was issued. It is my considered view that the less said about the intervention of the Department of Justice with the Circuit Criminal Courts by the issuance of Administrative Orders 258 and 274, Series of 1968 and worse Administrative Order No. 226, Series of 1970 the better, for I find absolutely no legal authority for the issuance of said Orders. The first two purportedly direct and instruct the judges of the various judicial districts of the Philippines as to how to apportion among themselves, together with the corresponding circuit criminal court judges, the cases falling within their concurrent jurisdiction. I feel very strongly that the distribution of the powers of government by the Constitution places, even in its broadest sense, everything that judges have to do that might in one way or another affect or be related to the ultimate disposition of the controversies and cases to be tried by them, including the distribution of the cases to be tried by them, entirely and exclusively with the judges themselves by common agreement among them, and so I hold that whatever be the import of Section 8 of Republic Act 5179 providing that "for administrative purposes, the Circuit Criminal Courts shall be under the supervision of the Department of Justice," the same cannot be considered as contemplating any intervention of the Secretary of Justice in the distribution of cases among judges. That the common impression and long standing practice on the matter are otherwise, cannot alter what, in my humble view, the Constitution ordains. I take it that under Republic Act 5179, Circuit Criminal Courts are nothing but additional branches of the regular Courts of First Instance in their respective districts with the limited concurrent jurisdiction to take cognizance of, try and decide only those cases enumerated in

Section 1 of the Act. This is readily implied from Section 3 of the Act which says:
SEC. 3. The provisions of all laws and the Rules of Court relative to the judges of the Courts of First Instance and the trial, disposition and appeal of criminal cases therein shall be applicable to the circuit judge and the cases cognizable by them insofar as they are not inconsistent with the provisions of this Act.

It is also my conviction that when Congress enacted Republic Act 5179, it was conscious of the existing doctrinal rule laid down by this Court, in Cunanan 1 that in criminal cases, venue is equivalent to territorial jurisdiction and precisely because of this consciousness and the knowledge that the nature of the crimes placed within the jurisdiction of the Circuit Criminal Courts is such that their successful prosecution might be impaired or obstructed by the doctrinal rule aforementioned that in Section 4 of the Act, Congress expressly provided that as a rule, "cases shall be heard within the province where the crime subject of the offense (sic) was committed" but "when the interest of justice so demands, with the prior approval of the Supreme Court, cases may be heard in a neighboring province of the district." It is contended that these quoted provisions of Section 4 contemplate only those cases already in the Circuit Criminal Court. That may be so, but my view is that by the said provisions, Congress has precisely opened the door for the regular courts trying cases of the nature enumerated in the Act to shift those cases to the circuit criminal court in instances like the present wherein it appears quite evident that to maintain Vigan as the venue of the trials in question will defeat the ends of justice, for, after all, the circuit court is just another branch of the Court of First Instance, and once it is in the former court, then Section 4 may be easily applied. Moving of cases from one branch of a Court of First Instance to another branch thereof is neither new nor unusual when the judges concerned are agreed that such a step would best promote the interests of justice. In the light of this practice, commendable in its motivation, why cannot the transfer be made from the Court of First Instance to circuit criminal court? Indeed, this should not be treated as merely a matter of discretion; judges should feel bound to act accordingly, as a matter of duty, hence a negative action in the appropriate cases is ground for certiorari or mandamus. In this connection, however, I must hasten to advert, that the interested parties should be duly heard on the matter and, in accordance with the spirit, if not the letter of the law, approval of the Supreme Court be secured. Apropos of all this discussion, I would like to make it clear that the rule invoked by the defense to the effect that venue in criminal cases is jurisdictional in character has no foundation in any act of the legislature. There can be no question that jurisdiction is conferred only by law and that it is only venue that may be fixed by the Rules of Court because jurisdiction is substantive and venue is merely procedural. The rule the defense invokes is found only in a decision of this Court rendered way back in 1913. In Cunanan, supra, this Court held: "The jurisdiction of the Courts of First Instance of the Philippine Islands, in criminal cases, is limited to certain well-defined territory. They cannot take jurisdiction of persons charged with an offense alleged to have been committed outside of that limited territory." As can be noted, no provision of law is cited in support of the ruling. The reason is simple. There is no such law. In other words, whatever force such invoked ruling may have is no more than that of a construction given by this Court. I dare say that when a previous construction by this Court runs counter to fundamental principles now separating the rule making power of the courts from the legislative faculty to define and apportion jurisdiction, it is best to lean in favor of recognizing the constitutional boundaries of our prerogatives when they are plain and the contrary cannot be implied. And since it was this Court that made the construction, there is nothing to stop Us from modifying the same, and inasmuch as Section 14, par. (a) of Rule 110

is purely a rule of venue, not legislated upon by Congress as a jurisdictional matter, Our power to change the same is unquestionable. I, therefore, reiterate my concurrence in the resolution of this point in the main opinion. Accordingly, I agree that the respondent judge gravely abused his discretion in not yielding to the suggested transfer of the cases in question to the circuit criminal court. Court trials and proceedings mean nothing unless the pronouncement and decisions of the courts merit the faith and trust of the parties in particular and the people in general. To the common man specially, the imperatives of justice administered by our courts are: (1) judge who can be trusted and (2) procedures that insulate the proceedings from all factors that may taint the ultimate outcome of litigations with doubt and skepticism. To my mind, it is not enough that a judge trusts himself or can be trusted as capable of acting in good faith, it is equally important that no circumstance attendant to the proceedings should mar that quality of trustworthiness. It is thus clear that by Our decision in this case, We are not expressing any distrust as to the impartiality of respondent judge; it should be clearly understood, however, that it is possible for his decision to be unfair not because he has made it so, but because under the circumstances, the adulterated evidence before him leaves him no other alternative. May I say as I close that what is most striking in this decision is that it is a unanimous one, in spite of the fact that at first blush it appeared that there were formidable adverse precedents on our way. After long and careful deliberation and after viewing all its angles, factual and legal, when the time for voting came, there was no hesitation in the assent that all of us gave to the rationalizations and conclusions contained in the scholarly main opinion of Mr. Justice Reyes and the dispositive part of the decision, but by no means and in absolutely no degree did the public discussion generated by the peculiary circumstances and personages involved in this case ever influence any of Us, as such things, indeed, never will.

Separate Opinions

FERNANDO, J., concurring: The learned and scholarly opinion of Justice J.B.L. Reyes renders crystal-clear why the decision reached by this Court should be what it is. It is a manifestation of the jurist's art at its most exemplary. It belies the belief not infrequently given utterance that hard cases make bad law. The problem before us is unique and unprecedented as far as our previous decisions go. It calls for a resolution far-reaching in its consequences and far-flung in its implications. Fortunately for the administration of justice according to law, there is the recognition of power vested in this Court, in the past perhaps only imperfectly discerned but nonetheless in existence, to be utilized whenever there is need to do so. This is one such occasion. Even without resort then to precedents coming from jurisdictions after which our judicial system was patterned, the same result would have been reached. For only thus, to paraphrase Cardozo, would the flexibility and the creativeness of the judicial process assert themselves. The opinion of Justice J.B.L., Reyes therefore calls for assent, which I readily yield. Nor does it seem inappropriate if it be stressed that the conclusion reached by the Court is solidly buttressed not only in law as history but likewise in law as logic and as social control. Hence this brief concurring opinion, which likewise will afford me the opportunity to give expression to the view that the Constitution and the proceedings in the Constitutional Convention of 1934-1935 point unerringly to the conclusion that this Court as the sole body vested with

judicial power by the fundamental law itself is not devoid of supervisory authority over inferior courts. Necessarily the prerogative to transfer the venue of criminal prosecutions whenever there is a persuasive showing that there would be a failure of justice is therein included. On such an assumption, I do not feel called upon to inquire into any asserted authority, even if denominated administrative, of an alter ego of the Executive, the Secretary of Justice, over the lower courts. For my belief gets stronger with the years that it would be difficult to assert that such a competence, even as thus limited, is warranted under a Constitution based on the doctrine of separation of powers and necessarily committed to the principle of judicial independence. 1. We start with the grant by the Constitution of Judicial power to this Court and to such inferior courts as may be established by law. 1 Thus is conferred the authority to decide cases through the ascertainment of facts and the application of the law, involving many a time its interpretation. 2It connotes, in the language of the decision, "the imperative of securing a fair and impartial trial, or of preventing a miscarriage of justice. ...." 3Where, as this did develop in this case, there is more than a probability of an impasse with the witnesses for the prosecution displaying the utmost reluctance to testify if the trial would be held in Vigan, entailing the risk that there be, again in the language of the opinion, "a mockery of the judicial process." 4it would appear undeniable, and we have so held today, that this Court is not to be denied the necessary competence to set matters right. It is not to fold its hands as if in helpless submission to a binding decree of Providence but must meet the problem squarely, possessed of power adequate to cope with such an exigency. In the same way that the two other coordinate departments, the Executive and Congress, being constitutional organs, can rely on the fundamental law to justify the exercise of certain prerogatives, 5 so may this Court, the only constitutional court, exercise supervision over all other judicial agencies thereafter legislatively created, appropriately termed by the Constitution as inferior courts. There would be a void in the framework of government thus established if there is no official body of a higher rank that can take the necessary steps to avoid a frustration of the exercise of judicial power. It is my firm conviction that neither the Presidency nor Congress can rightfully be entrusted with such a task. If it were thus, then the doctrine of separation of powers becomes a myth. Such an approach necessarily and logically compel the conclusion that the so called administrative supervision exercised by the Secretary of Justice is, to put it at its mildest, infected with the gravest doubts as to its constitutionality. There is no need to go that far to reach a decision in this case as is so aptly demonstrated in the opinion of the Court. What appears to me undisputed is that where the question partakes of a judicial character, only this Court can perform that function and trace its source to the Constitution itself. That is to free the Constitution from the reproach that a situation is left unprovided for. What is more, it assures the utmost respect for the principle that like the other two coordinate and co-equal branches, Court is likewise the recipient of power conferred by the Constitution itself. 6 2. So much for law from the standpoint of analytical jurisprudence of law as logic. If the matter be viewed from the approach found congenial by sociological jurists, law as one of the most effective forms of social control, the same conclusion appears to be inescapable. This is to examine legal institutions in terms of how they function. It certainly would be a blot on the administration of justice if by the reluctance of witnesses to testify, based on what they consider to be a feeling that cannot be stigmatized under the circumstances as having no basis in reason, no trial could be had of a criminal case. It is a matter of great public interest

that crime should not go unpunished. Of course, it is equally important that the rights of whoever is accused are duly safeguarded. Where as in this case an impasse is likely to occur, in itself an alarming symptom of a breakdown in the orderly legal processes, the loss of public confidence in the rule of law itself is incalculable. That is an eventuality which at all pains must be avoided. The only question is how. If the legal doctrine and principles, which under the system of legal norms followed must be grounded in the Constitution itself do not recognize such a competence in this Court, then for some all may well be lost. It would be unthinkable, again given the assumption, not entirely without basis, that the two other branches of the government cannot escape political considerations, to assume that either Congress or the Executive can be trusted to take care of such a situation. Nor would it do to leave such matters in the hands of the lower courts, unless whatever is decided by them is subject to correction and review by the only constitutional court, certainly vested with the needed supervisory authority. It would thus appear, if a breakdown in the legal system is to be averted, that the power of this Court is undeniable. There would seem to be no other way to avoid a serious disruption in the legal order. The above considerations necessarily lead me to yield a full concurrence with what has been so persuasively and ably put forth in the masterly opinion of Justice J.B.L. Reyes. December 5, 1970 BARREDO, J., concurring: The accuracy of the technical bases as well as the unerring logic of the resolution of the various facets of this case evidence in the main opinion written by our erudite colleague Mr. Justice J.B.L. Reyes could not but impel the unanimous assent given thereto by the members of this Court. Indeed, I could give the best evidence of my full concurrence therein by merely signing the same without this separate opinion. I feel, however, that the impact of this decision is of such transcendental importance to the administration of justice in this country, particularly now when some sectors of our people make no secret of lingering doubts as to the fairness and impartiality by judicial actuations and decisions, that my duty as a member of this highest tribunal of the land calls for more than just the giving of my vote in favor thereof. I consider it incumbent upon me, since none of my brethren seems to be minded to do it, to project more emphatically certain relevant matters, the significance of which should go hand in hand with the resolution of the case itself. I can neither control nor conceal the feeling of full satisfaction that overwhelms me now, because I consider this decision as probably the first one of national importance, in a long time, that will receive universal and unqualified approval throughout the length and breath of this Republic. I am sure it will yield for our constitutional government as a whole and for the judiciary in particular a rich harvest of regained trust and confidence in the administration of justice. This decision is a great leap forward. We are shaking away from a long standing jurisprudential rule; We are casting aside technical procedural roadblocks; We are here and now proclaiming to all and sundry the plenitude, under the Constitution, of Our power and authority to "insure to (our people) and their posterity, the blessings of independence under a regime of justice" (Preamble of the Constitution) by holding that the "judicial power ... vested in ... (the) Supreme Court" necessarily carries with it the power to lay down procedures that will effectively and fully guarantee, as far as it is humanly possible to do so, that substantial justice shall not be defeated thru technicalities of procedure; and what is most important today, as I view it, is that this is one decision the essence of which spells simple justice that will be plainly understood by the common man. In the clearest terms, this Court holds in effect

in this decision that inspite of the traditional rule that a person charged with an offense may not be tried in a province outside of the one ill which the alleged offense or any essential ingredient thereof has been committed, it is the duty of the corresponding trial court, with the approval of the Supreme Court, to see to it that when the demands of justice require it, the venue is moved to another province wherein the circumstantial environment will insure a full disclosure of all material facts essential in the pursuit of truth and justice. Surely, the common man would not understand why the Supreme Court in whom the totality of judicial power is vested by the Constitution would not have the authority and the right, nay the duty, to prevent a trial from being held in a place where it would be nothing more than a farce and an empty show, the final chapter of which may have already been prewritten, even independently of the honesty and integrity of the presiding judge, because of external factors and forces that impede the witnesses from making a free and fearless exposition of what they know. I am exceedingly happy that by this decision, the common man will understand that neither the Constitution nor this Court will ever be found wanting in what is needed top render justice in its truest sense. Now, for some views of my own on the specific legal issues raised by the parties in their pleadings. The problem revolves around the power of the Secretary of the Department of Justice vis-a-vis the operation of the Circuit Criminal Courts created by Republic Act 5179. The People contends that by Administrative Order 258 and 271, Series of 1968 and Administrative Order No. 226, Series of 1970, of the Secretary of Justice, issued pursuant allegedly to Republic Act 5179, (presumably Section 8 thereof) the transfer of the criminal cases herein involved, Criminal Cases Nos. 47-V and 48-V of the Court of First Instance of Ilocos Sur to the Circuit Criminal Court of the Second Judicial District is legally justifiable. On the other hand, the defense submits that under the uniformly announced doctrine of this Court regarding the jurisdictional nature of the venue of criminal cases and principally because to give effect to the administrative orders aforementioned would be impairing the independence of the judiciary, the accused in aforesaid cases must be tried in Vigan, Ilocos Sur, by the Court of First Instance in which, it is a fact, the case was filed on June 15, 1970, the very day Administrative Order No. 221 of the Secretary of Justice authorizing Judge Lino Anover of the Circuit Criminal Court to hold sessions in Vigan beginning July 1, 1970 was issued. It is my considered view that the less said about the intervention of the Department of Justice with the Circuit Criminal Courts by the issuance of Administrative Orders 258 and 274, Series of 1968 and worse Administrative Order No. 226, Series of 1970 the better, for I find absolutely no legal authority for the issuance of said Orders. The first two purportedly direct and instruct the judges of the various judicial districts of the Philippines as to how to apportion among themselves, together with the corresponding circuit criminal court judges, the cases falling within their concurrent jurisdiction. I feel very strongly that the distribution of the powers of government by the Constitution places, even in its broadest sense, everything that judges have to do that might in one way or another affect or be related to the ultimate disposition of the controversies and cases to be tried by them, including the distribution of the cases to be tried by them, entirely and exclusively with the judges themselves by common agreement among them, and so I hold that whatever be the import of Section 8 of Republic Act 5179 providing that "for administrative purposes, the Circuit Criminal Courts shall be under the supervision of the Department of Justice," the same cannot be considered as contemplating any intervention of the Secretary of Justice in the distribution of cases among judges. That the common impression and long standing practice on the matter are otherwise, cannot alter what, in my humble view, the Constitution ordains.

I take it that under Republic Act 5179, Circuit Criminal Courts are nothing but additional branches of the regular Courts of First Instance in their respective districts with the limited concurrent jurisdiction to take cognizance of, try and decide only those cases enumerated in Section 1 of the Act. This is readily implied from Section 3 of the Act which says:
SEC. 3. The provisions of all laws and the Rules of Court relative to the judges of the Courts of First Instance and the trial, disposition and appeal of criminal cases therein shall be applicable to the circuit judge and the cases cognizable by them insofar as they are not inconsistent with the provisions of this Act.

It is also my conviction that when Congress enacted Republic Act 5179, it was conscious of the existing doctrinal rule laid down by this Court, in Cunanan 1 that in criminal cases, venue is equivalent to territorial jurisdiction and precisely because of this consciousness and the knowledge that the nature of the crimes placed within the jurisdiction of the Circuit Criminal Courts is such that their successful prosecution might be impaired or obstructed by the doctrinal rule aforementioned that in Section 4 of the Act, Congress expressly provided that as a rule, "cases shall be heard within the province where the crime subject of the offense (sic) was committed" but "when the interest of justice so demands, with the prior approval of the Supreme Court, cases may be heard in a neighboring province of the district." It is contended that these quoted provisions of Section 4 contemplate only those cases already in the Circuit Criminal Court. That may be so, but my view is that by the said provisions, Congress has precisely opened the door for the regular courts trying cases of the nature enumerated in the Act to shift those cases to the circuit criminal court in instances like the present wherein it appears quite evident that to maintain Vigan as the venue of the trials in question will defeat the ends of justice, for, after all, the circuit court is just another branch of the Court of First Instance, and once it is in the former court, then Section 4 may be easily applied. Moving of cases from one branch of a Court of First Instance to another branch thereof is neither new nor unusual when the judges concerned are agreed that such a step would best promote the interests of justice. In the light of this practice, commendable in its motivation, why cannot the transfer be made from the Court of First Instance to circuit criminal court? Indeed, this should not be treated as merely a matter of discretion; judges should feel bound to act accordingly, as a matter of duty, hence a negative action in the appropriate cases is ground for certiorari or mandamus. In this connection, however, I must hasten to advert, that the interested parties should be duly heard on the matter and, in accordance with the spirit, if not the letter of the law, approval of the Supreme Court be secured. Apropos of all this discussion, I would like to make it clear that the rule invoked by the defense to the effect that venue in criminal cases is jurisdictional in character has no foundation in any act of the legislature. There can be no question that jurisdiction is conferred only by law and that it is only venue that may be fixed by the Rules of Court because jurisdiction is substantive and venue is merely procedural. The rule the defense invokes is found only in a decision of this Court rendered way back in 1913. In Cunanan, supra, this Court held: "The jurisdiction of the Courts of First Instance of the Philippine Islands, in criminal cases, is limited to certain well-defined territory. They cannot take jurisdiction of persons charged with an offense alleged to have been committed outside of that limited territory." As can be noted, no provision of law is cited in support of the ruling. The reason is simple. There is no such law. In other words, whatever force such invoked ruling may have is no more than that of a construction given by this Court. I dare say that when a previous construction by this Court runs counter to fundamental principles now separating the rule making power of the courts from the legislative faculty to define and apportion jurisdiction, it is best to lean in favor

of recognizing the constitutional boundaries of our prerogatives when they are plain and the contrary cannot be implied. And since it was this Court that made the construction, there is nothing to stop Us from modifying the same, and inasmuch as Section 14, par. (a) of Rule 110 is purely a rule of venue, not legislated upon by Congress as a jurisdictional matter, Our power to change the same is unquestionable. I, therefore, reiterate my concurrence in the resolution of this point in the main opinion. Accordingly, I agree that the respondent judge gravely abused his discretion in not yielding to the suggested transfer of the cases in question to the circuit criminal court. Court trials and proceedings mean nothing unless the pronouncement and decisions of the courts merit the faith and trust of the parties in particular and the people in general. To the common man specially, the imperatives of justice administered by our courts are: (1) judge who can be trusted and (2) procedures that insulate the proceedings from all factors that may taint the ultimate outcome of litigations with doubt and skepticism. To my mind, it is not enough that a judge trusts himself or can be trusted as capable of acting in good faith, it is equally important that no circumstance attendant to the proceedings should mar that quality of trustworthiness. It is thus clear that by Our decision in this case, We are not expressing any distrust as to the impartiality of respondent judge; it should be clearly understood, however, that it is possible for his decision to be unfair not because he has made it so, but because under the circumstances, the adulterated evidence before him leaves him no other alternative. May I say as I close that what is most striking in this decision is that it is a unanimous one, in spite of the fact that at first blush it appeared that there were formidable adverse precedents on our way. After long and careful deliberation and after viewing all its angles, factual and legal, when the time for voting came, there was no hesitation in the assent that all of us gave to the rationalizations and conclusions contained in the scholarly main opinion of Mr. Justice Reyes and the dispositive part of the decision, but by no means and in absolutely no degree did the public discussion generated by the peculiary circumstances and personages involved in this case ever influence any of Us, as such things, indeed, never will.
#

Footnotes
1 56 Am. Jur. (Venue), pages 47-48, 50. For an exhaustive review of precedents, see Crocker vs. Justices of the Superior Courts, 208 Mass. 162, 21 Ann. Cas. 1067; Barry vs. Truax 99 NW 769, 65 LRA 762. FERNANDO, J., concurring: 1 According to the Constitution: "The judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law." Art. VIII, Sec. 1. 2 Cf. City of Baguio v. de Leon, L-24756, Oct. 31, 1968, 25 SCRA 938; Vera v. Arca, L-25721, May 26, 1969, 28 SCRA 351; Pecson Jose v. Santos, L-25510, Oct. 30, 1970. 3 Opinion of Justice J.B.L. Reyes, p. 5, Editor's Note: p. 180 this volume). 4 Ibid. 5 Cf. Planas v. Gil, 67 Phil. 62 (1939); Villena v. Secretary of Interior, 67 Phil. 451 (1939); Arnault v. Nazareno, 87 Phil. 29 (1950). 6 Cf. Debates in the Constitutional Convention with Delegate Jose P. Laurel explaining his draft proposal as found in V Laurel, ed., Proceedings of the Philippine Constitutional Convention pp. 724-731; 911-928. BARREDO, J., concurring: 1 26 Phil. 376.

The Lawphil Project - Arellano Law Foundation

G.R. No. L-39380 April 14, 1978

LUALHATI L. LINA, petitioner, vs. The Honorable AMANTE P. PURISIMA in his capacity as Presiding Judge of the Court of First Instance of Manila, PHILIPPINE VETERANS BANK, and ESTEBAN CABANOS, respondents. Honesto Salcedo and Pantaleon Z. Salcedo for petitioner. Levy M. Narvaez for respondents. BARREDO, J.: 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. 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 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; 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 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. Castro (C.J), Fernando, Antonio, Muoz Palma, Aquino, Concepcion, Jr., Santos, Fernandez, and Guerrero, JJ., concur.

Separate Opinions TEEHANKEE, J, concurring: The case at bar graphically portrays the grave in. justice inflicted upon government employees who have been summary dismissed "for being notoriously undesirable" when in truth and in fact their record shows the contrary. it is to the credit of respondent Cabanas, as president of respon. dent bank, that he ordered her immediate reinstatement upon realizing petitioner's high efficiency record, when She sought redress with this Court. The interests of substantial and expeditious justice justify the Court's disposition of the case

on the merits, aside from the fact that respondents have in effect confessed judgment, With their manifestation that they had already voluntarily ordered the reinstatement of petitioner with the payment of back salaries and expenses actually incurred in the case, including attomey's fees. The Court's judgment is however, incomplete, insofar as it directs that she be reimbursed her actual litigation expenses without determination of such amount, since no trial was held in the lower court which had wrongly dismissed her complaint. The judgment's footnote expresses the expectation that "(T)he amount of the actual expenses may be threshed out by the par. ties in the most reasonable and expeditious manner that Will avoid further litigation between them Or recourse to this court by any of them. " The judgment should, however, fully dispose of the controversy. In my view, the judgment should provide for the remand of the case to the lower court only for the purpose of fixing and determining the amount of such litigation expenses, without prejudice to the parties coming to an agreement as to a mutually acceptable amount to be paid to petitioner by way of reimbursement. MAKASIAR, J.,dissenting: 1. Despite the order for her to return or for her reinstatement dated May 12, 1975 without prejudice to the outcome of this case, petitioner did not return for about three years, insisting that this case should first be decided. Such an arrogant attitude is unreasonable and amounts to abandonment of her office or position. Hence, she should not be reinstated. mandamus to compel reinstatement can only prosper if filed within one (1) year from the accrual of the cause of action. She did not work since she received the order for her reinstatement. Consequently, she is not entitled to back salary, even if reinstated, much less to moral and exemplary damages since there is no proof of bad faith on the part of the respondent Bank and bank president. To pay her back salaries, damages and attorney's fees would be immoral and reprehensible under the circumstances. The Philippine Veterans Bank is an agency or instrumentality of the government; because only government corporations can be created by special law (Sec. 7, Art. XIV, 1935 Constitution; Sec. 4, Art. XIV, 1973 Constitution). The Philippine Veterans Bank exists by virtue of a special charter, Republic Act No. 3518. Emphasizing that it is a government agency is the fact that her case was raised to the Office of the President. Moreover, it is funded or subsidized by the State (Sec. 3[b], Rep. Act No. 3518). 2. The case should at most be remanded to the trial court for reception of evidence on her efficiency as well as on the charge that she is not cooperative, has poor public relations, and cannot get along with her co-employees and other persons, in order to determine whether she is really notoriously undesirable. With respect to her efficiency rating, she could be a favorite of her superiors. If it is true that petitioner, a pharmacist, was appointed bookkeeper, this may demonstrate illegal discrimination in her favor from the start; because of the existence in Manila of many eligibles due to the numerous commerce and business administration graduates who are more qualified since they have more bookkeeping and accounting units or subjects. There are many of these more competent unemployed walking the streets. The function of a bookkeeper in a bank is delicate; any error may result in a serious prejudice to the bank, to its clients or customers and shareholders or any other person dealing with the bank. For a considerable period of time after her appointment, petitioner must have been trained for free for her book. keeping duties during which time she was being paid her salary.

3. The fact that respondents offered to pay her back wages and expenses pursuant to the manifestations of May 22, 1975 and November 12, 1976, cannot be considered estoppel against the respondent Bank; because there is no estoppel against the government that can be generated by the unauthorized acts of its officers. The funds which are in the custody of the bank do not belong to its officers. As heretofore stated, initially, the bank was capitalized by the government (Sec. 3[b], R.A. 3518). Such funds can only be disposed of by the Bank for its lawful obligations.

Separate Opinions TEEHANKEE, J, concurring: The case at bar graphically portrays the grave in. justice inflicted upon government employees who have been summary dismissed "for being notoriously undesirable" when in truth and in fact their record shows the contrary. it is to the credit of respondent Cabanas, as president of respon. dent bank, that he ordered her immediate reinstatement upon realizing petitioner's high efficiency record, when She sought redress with this Court. The interests of substantial and expeditious justice justify the Court's disposition of the case on the merits, aside from the fact that respondents have in effect confessed judgment, With their manifestation that they had already voluntarily ordered the reinstatement of petitioner with the payment of back salaries and expenses actually incurred in the case, including attomey's fees. The Court's judgment is however, incomplete, insofar as it directs that she be reimbursed her actual litigation expenses without determination of such amount, since no trial was held in the lower court which had wrongly dismissed her complaint. The judgment's footnote expresses the expectation that "(T)he amount of the actual expenses may be threshed out by the par. ties in the most reasonable and expeditious manner that Will avoid further litigation between them Or recourse to this court by any of them. " The judgment should, however, fully dispose of the controversy. In my view, the judgment should provide for the remand of the case to the lower court only for the purpose of fixing and determining the amount of such litigation expenses, without prejudice to the parties coming to an agreement as to a mutually acceptable amount to be paid to petitioner by way of reimbursement. MAKASIAR, J.,dissenting: 1. Despite the order for her to return or for her reinstatement dated May 12, 1975 without prejudice to the outcome of this case, petitioner did not return for about three years, insisting that this case should first be decided. Such an arrogant attitude is unreasonable and amounts to abandonment of her office or position. Hence, she should not be reinstated. mandamus to compel reinstatement can only prosper if filed within one (1) year from the accrual of the cause of action. She did not work since she received the order for her reinstatement. Consequently, she is not entitled to back salary, even if reinstated, much less to moral and exemplary damages since there is no proof of bad faith on the part of the respondent Bank and bank president. To pay her back salaries, damages and attorney's fees would be immoral and reprehensible under the circumstances. The Philippine Veterans Bank is an agency or instrumentality of the government; because only government corporations can be created by special law (Sec. 7, Art. XIV, 1935

Constitution; Sec. 4, Art. XIV, 1973 Constitution). The Philippine Veterans Bank exists by virtue of a special charter, Republic Act No. 3518. Emphasizing that it is a government agency is the fact that her case was raised to the Office of the President. Moreover, it is funded or subsidized by the State (Sec. 3[b], Rep. Act No. 3518). 2. The case should at most be remanded to the trial court for reception of evidence on her efficiency as well as on the charge that she is not cooperative, has poor public relations, and cannot get along with her co-employees and other persons, in order to determine whether she is really notoriously undesirable. With respect to her efficiency rating, she could be a favorite of her superiors. If it is true that petitioner, a pharmacist, was appointed bookkeeper, this may demonstrate illegal discrimination in her favor from the start; because of the existence in Manila of many eligibles due to the numerous commerce and business administration graduates who are more qualified since they have more bookkeeping and accounting units or subjects. There are many of these more competent unemployed walking the streets. The function of a bookkeeper in a bank is delicate; any error may result in a serious prejudice to the bank, to its clients or customers and shareholders or any other person dealing with the bank. For a considerable period of time after her appointment, petitioner must have been trained for free for her book. keeping duties during which time she was being paid her salary. 3. The fact that respondents offered to pay her back wages and expenses pursuant to the manifestations of May 22, 1975 and November 12, 1976, cannot be considered estoppel against the respondent Bank; because there is no estoppel against the government that can be generated by the unauthorized acts of its officers. The funds which are in the custody of the bank do not belong to its officers. As heretofore stated, initially, the bank was capitalized by the government (Sec. 3[b], R.A. 3518). Such funds can only be disposed of by the Bank for its lawful obligations. Footnotes
1 Which extended the injunction of General Order No. 3 to cases involving the validity of the martial law proclamation itself. 2 On the basis of her last salary as indicated in Annex 4 of respondents' Compliance and Manifestation dated February 10, 1975, which is Three Hundred Forty (P340.00) Pesos a month or Four Thousand Eighty (P 4,080) Pesos, per annum and considering that there are exactly four (4) years and two (2) months from October 12, 1972. the date of her dismiss up to December 12, 1975, which is one month after respondents, manifestation of November 12, 1976, the total back salaries due petitioner would amount to slightly more or less P17,000. The amount of the actual expenses may be threshed out by the Parties in the most reasonable and expeditious manner that will avoid further litigation between them or recourse to this Court by any of them. The Lawphil Project - Arellano Law Foundation

G.R. No. L-61700 September 14, 1987 PRINCESITA SANTERO, FEDERICO SANTERO and WILLIE SANTERO, petitioners, vs. HON. COURT OF FIRST INSTANCE OF CAVITE, ANSELMA DIAZ, VICTOR, RODRIGO, ANSELMINA, MIGUEL, all surnamed SANTERO, and REYNALDO EVARISTO, in his capacity as Administrator of the Intestate Estate of PABLO SANTERO, respondents.

PARAS, J.: This is a Petition for certiorari which questions the order of the respondent court granting the Motion for Allowance filed by private respondents. Said order reads as follows:
Acting on the Motion For Allowance dated June 30, 1982 filed by Victor, Rodrigo, Anselmina and Miguel, all surnamed Santero, thru their guardian, Anselma Diaz, the Opposition thereto dated July 8, 1982 filed by the oppositors, the Reply to Opposition dated July 12, 1982 filed by movant Anselma Diaz and the Rejoinder dated July 26, 1982 filed by the oppositors, the Court was constrained to examine the Motion For Allowance filed by the herein movant last year wherein the ground cited was for support which included educational expenses, clothing and medical necessities, which was granted and said minors were given an allowance prayed for in their motion. In the Motion For Allowance in question guardian-movant Anselma Diaz only followed the precedent of the Court which granted a similar motion last year to be spent for the school expenses of her wards. In their opposition the oppositors contend that the wards for whom allowance is sought are no longer schooling and have attained majority age so that they are no longer under guardianship. They likewise allege that the administrator does not have sufficient funds to cover the said allowance because whatever funds are in the hands of the administrator, they constitute funds held in trust for the benefit of whoever will be adjudged as owners of the Kawit property from which said administrator derives the only income of the intestate estate of Pablo Santero, et al. In the Reply filed by the guardian-movant, she admitted some of her children are of age and not enrolled for the first semester due to lack of funds but will be enrolled as soon as they are given the requested allowances. She cited Article 290 of the Civil Code providing that: Support is everything that is indispensable for substance, dwelling, clothing and medical attendance, according to the social position of the family. Support also includes the education of the person entitled to be supported until he completes his education or training for some trade or vocation, even beyond the age of majority.' citing also Section 3 of Rule 83 of the Rules of Court which provides: Allowance to widow and family. The widow and minor or incapacitated children of a deceased person, during the settlement of the estate, shall receive therefrom, under the direction of the Court, such allowance as provided by law.' From the foregoing discussion alone, the Court cannot deviate from its duty to give the allowance sought by the wards, the fact that they need further education which should have been provided to them if their deceased father were alive. On the allegation that the funds from which the allowance would be derived are trust funds, the Court, time and again had emphasized that the estate of the Santeros is quite big and the amount to be released for allowances is indeed insignificant and which can easily be replaced from its general fund if the so-called trust fund is adjudicated to the oppositors. WHEREFORE, Victor, Rodrigo, Anselmina and Miguel, all surnamed Santero are hereby granted an allowance of two thousand (P2,000.00) pesos each for tuition fees, clothing materials and subsistence out of any available funds in the hands of the administrator who is ordered to reimburse to them the said amount after this order shall have become final to enable the oppositors to file their appeal by certiorari if they so desire within the reglementary period. SO ORDERED. Bacoor, Cavite, July 28, 1982. ILDEFONSO M. BLEZA Executive Judge (pp. 35-36, Rollo)

It appears from the records that petitioners Princesita Santero-Morales, Federico Santero and Winy Santero are the children begotten by the late Pablo Santero with Felixberta Pacursa while private respondents Victor, Rodrigo, Anselmina and Miguel all surnamed Santero are four of the seven children begotten by the same Pablo Santero with Anselma Diaz. Both sets of children are the natural children of the late Pablo Santero since neither of their mothers, was married to their father Pablo. Pablo Santero in turn, who died on November 30, 1973 was the only legitimate son of Pascual Santero who died in 1970 and Simona Pamuti Vda. de Santero who died in 1976. Meanwhile before We could act on the instant petition private respondents filed another Motion for Allowance dated March 25, 1985 with the respondent court to include Juanita, Estelita and Pedrito all surnamed Santero as children of the late Pablo Santero with Anselma Diaz praying that an order be granted directing the administrator Reynaldo C. Evaristo, to deliver the sum of P6,000.00 to each of the seven (7) children of Anselma Diaz as their allowance from the estate of Pablo Santero. The respondent Court granted the motion of the private respondents but oppositors (petitioners herein) asked the court to reconsider said Order. On September 10, 1985, an Amended Order was issued by respondent Court directing Anselma Diaz to submit her clarification or explanation as to the additional three (3) children of Anselma Diaz included in the motion. In compliance therewith Anselma Diaz filed her "Clarification" stating among others that in her previous motions, only the last four minor children as represented by the mother, Anselma Diaz were included in the motion for support and her first three (3) children who were then of age should have been included since all her children have the right to receive allowance as advance payment of their shares in the inheritance of Pablo Santero under Art. 188, of the New Civil Code. On October 15, 1985, petitioners herein filed their Motion to Admit Supplemental Petition opposing the inclusion of three (3) more heirs. We denied that "Motion for Extension of Time to file their Supplemental Petition" as per Our Resolution dated October 23, 1985. On November 11, 1985, another Order was issued by the respondent court directing the administrator of the estate to get back the allowance of the three additional recipients or children of Anselma Diaz apparently based on the oppositors' (petitioners herein) "Urgent Motion to Direct the Administrator to Withhold Disbursement of Allowance to the Movants." The issues now being raised in this present Petition are: 1. Whether or not respondent court acted with abuse of discretion amounting to lack of jurisdiction in granting the allowance to the respondents Victor, Rodrigo, Anselmina and Miguel-P2,000.00 each despite the fact that all of them are not minors and all are gainfully employed with the exception of Miguel. 2. Whether or not respondent Court acted with abuse of discretion in granting the allowance based on the allegations of the said respondents that the abovenamed wards are still schooling and they are in actual need of money to defray their school expenses for 1982-83 when the truth is that they are no longer schooling. 3. Whether or not respondent Court acted with abuse of discretion in granting the motion for allowance without conducting a hearing thereon, to determine the truth of allegations of the private respondents. Petitioners argue that private respondents are not entitled to any allowance since they have

already attained majority age, two are gainfully employed and one is married as provided for under Sec. 3 Rule 83, of the Rules of Court. Petitioners also allege that there was misrepresentation on the part of the guardian in asking for allowance for tuition fees, books and other school materials and other miscellaneous expenses for school term 1982-83 because these wards have already attained majority age so that they are no longer under guardianship. They further allege that the administrator of the estate of Pablo Santero does not have sufficient funds to cover said allowance because whatever funds are in the hands of the administrator constitute funds held in trust for the benefit of whoever will be adjudged as owners of the Kawit properties from where these funds now held by the administrator are derived. In this connection, the question of whether the private respondents are entitled to allowance or not concerns only the intestate estate of the late Pablo Santero and not the intestate estates of Pascual Santero and Simona Pamuti, parents of their late legitimate son Pablo Santero. The reason for this is Art. 992 of the New Civil Code which states that "An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child." The question of whether or not the petitioners and private respondents are entitled to inherit by right of representation from their grandparents more particularly from Simona Pamuti was settled by Us in the related case of "Anselma Diaz, et al. vs. Felisa Pamuti-Jardin" (G.R. No. 66574-R) wherein We held that in view of the barrier present in said Art. 992, petitioners and private respondents are excluded from the intestate estate of Simona Pamuti Vda. de Santero. The present petition obviously lacks merit. The controlling provision of law is not Rule 83, Sec. 3 of the New Rules of Court but Arts. 290 and 188 of the Civil Code reading as follows:
Art. 290. Support is everything that is indispensable for sustenance, dwelling, clothing and medical attendance, according tothe social position of the family. Support also includes the education of the person entitled to be supported until he completes his education or training for some profession, trade or vocation, even beyond the age of majority. Art. 188. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them.

The fact that private respondents are of age, gainfully employed, or married is of no moment and should not be regarded as the determining factor of their right to allowance under Art. 188. While the Rules of Court limit allowances to the widow and minor or incapacitated children of the deceased, the New Civil Code gives the surviving spouse and his/her children without distinction. Hence, the private respondents Victor, Rodrigo, Anselmina and Miguel all surnamed Santero are entitled to allowances as advances from their shares in the inheritance from their father Pablo Santero. Since the provision of the Civil Code, a substantive law, gives the surviving spouse and to the children the right to receive support during the liquidation of the estate of the deceased, such right cannot be impaired by Rule 83 Sec. 3 of the Rules of Court which is a procedural rule. Be it noted however that with respect to "spouse," the same must be the "legitimate spouse" (not common-law spouses who are the mothers of the children here). It is not true that the Motion for Allowance was granted by respondent Court without hearing. The record shows that the "Motion for Allowance" dated June 30, 1982 contains a Notice of

Hearing (p. 2, Annex "A") addressed to the lawyers for the petitioners and setting the hearing thereof on July 8, 1982 at 9:00 in the morning. Apparently a copy of said motion was duly received by the lawyer, Atty. Beltran as he filed an opposition thereto on the same date of hearing of the motion. Furthermore even the instant petition admits that the wards, (petitioners and private respondents as represented by their respective guardians) "have been granted allowances for school expenses for about 8 years now." The respondent court in granting the motion for allowance merely "followed the precedent of the court which granted a similar motion last year." (Annex "F") However in previous years (1979-1981) the "wards" (petitioners and private respondents) only received P1,500.00 each depending upon the availability of funds as granted by the court in several orders. (Annex 1 to Annex 4). WHEREFORE, in the light of the aforementioned circumstances, the instant Petition is hereby DISMISSED and the assailed judgment is AFFIRMED. SO ORDERED. Yap (Chairman), Melencio-Herrera, and Sarmiento, JJ., concur. Padilla, J., took no part. The Lawphil Project - Arellano Law Foundation

G.R. No. 81381 September 30, 1988 EFIGENIO S. DAMASCO, petitioner, vs. JUDGE HILARIO L. LAQUI in his capacity as Presiding Judge of Metropolitan Trial Court, Br. 59, Mandaluyong, Metro Manila and the PEOPLE OF THE PHILIPPINES, respondents. Del Prado, Diaz. Sy, Damasco Law Offices for petitioner. The Solicitor General for respondent. PADILLA, J.: In an Information dated 11 September 1987, but filed only on 17 September 1987 with the Municipal Trial Court of Mandaluyong, Branch 59, presided over by respondent Judge Hilario L. Laqui, petitioner Atty. Eugenio S. Damasco was charged with the crime of grave threats committed as follows:
That on or about the 8th day of July 1987, in the Municipality of Mandaluyong, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously threaten one Rafael K. Sumadohat with the infliction upon his person of a wrong amounting to a crime, that is, by then and there uttering the following remarks, to wit: BAKIT MO AKO GINAGANITO? MAGBABAYAD KA ... PAPATAYIN KITA ... MAYROON AKONG BARIL, BABARILIN KITA, TAGADIYAN LANG AKO (Rollo, P. 13)

Upon arraignment, petitioner pleaded not guilty. After trial, respondent judge found that the

evidence presented did not establish the crime of grave threats but only of light threats. As a result, petitioner was convicted of the latter crime and was sentenced to pay a fine of P100.00 and the costs. Subsequently, petitioner filed a Motion to Rectify and Set Aside the dispositive part of respondent Judge's decision, contending that he cannot be convicted of light threats, necessarily included in grave threats charged in the information, as the lighter offense had already prescribed when the information was filed. Petitioner states that the crime was committed on 8 July 1987 and the information was filed only on 17 September 1987 or after the lapse of 71 days. (Incidentally the affidavit complaint was filed with the Fiscal's Office only on 7 September 1987, or after the lapse of 61 days from 8 July 1987. 1 ) Upon the other hand, the crime of light threats, which is a light offense, prescribes in two (2) months 2 which means sixty (60) days. 3 In denying petitioner's motion, the lower court held that:
Just to disabuse the mind of the movant, let it be said that the Court is fully aware of the respective date of the commission of the offense and of the filing of the information. The Court holds on to the principle that the allegation in the information confers jurisdiction and that jurisdiction once acquired cannot be lost. Thus, since the Court acquired jurisdiction to try the case because the information was filed within the prescriptive period for the crime charged, which is Grave Threats, the same cannot be lost by prescription, if after trial what has been proven is merely light threats. 4

The Office of the Solicitor General, in its Comment, recommends that the petition be given due course, stating that:
Respondent Judge denied the "Motion to Rectify and Set Aside the Dispositive Portion of the Decision" apparently with the misimpression that what was being questioned was the court's jurisdiction over the offense charged, ratiocinating that jurisdiction, once acquired, cannot be lost. But such is not the case. True, the allegations in the Information confer jurisdiction upon the courts, and once acquired, such jurisdiction cannot be lost. However, this principle is not applicable in the case at bar. The jurisdiction of the lower court over the crime was never questioned. Rather, the legal dispute lies in whether or not it was proper for respondent Judge to still convict petitioner after finding him guilty of the lesser offense of light threats but which has already prescribed. Verily, the query should be answered in the negative for reasons heretofore discussed. 5

In the case of Francisco vs. Court of Appeals, 6 the Court held that where an accused has been found to have committed a lesser offense includible within the graver offense charged, he cannot be convicted of the lesser offense if it has already prescribed. To hold otherwise, according to the Court, would be to sanction a circumvention of the law on prescription by the simple expedient of accussing the defendant of the graver offense. Incidentally, in the case of Felino Reyes vs. Hon. Intermediate Appellate Court and People of the Philippines, 7 a Memorandum prepared by this ponente for the Court, entitled "An Examination of the Rule Which Holds That One Cannot Be Convicted Of A Lesser Offense Includible Within a Greater Offense, Where Prosecution For The Latter Was Commenced After Expiration Of Limitations Applicable To The Lesser Offense," discusses a possible attempt to depart from the rule laid down in Francisco vs. CA, 8 by invoking the principle of presumption of regularity in the performance of official acts and duties, and by interpreting the phrase "prescription of a crime or offense" as merely "a bar to the commencement of a criminal action. 9 However, Philippine jurisprudence considers prescription of a crime or offense as a loss or

waiver by the State of its right to prosecute an act prohibited and punished by law. 10 Hence, while it is the rule that an accused who fails to move to quash before pleading, is deemed to waive all objections which are grounds of a motion to quash, yet, this rule cannot apply to the defense of prescription, which under Art. 69 of the Revised Penal Code extinguishes criminal liability. To apply the suggestion in the aforecited memorandum could contravene said Article 89, which is a part of substantive law. 11 This position is further strengthened by Sec. 8, Rule 117, 1985 Rules on Criminal Procedure, which added extinction of offense as one of the exceptions to the general rule regarding the effects of a failure to assert a ground of a motion to quash. Thus, as suggested by the cited memorandum, a departure from the ruling in Francisco vs. CA, 12 can be done only "through an overhaul of some existing rules on criminal procedure to give prescription a limited meaning, i.e., a mere bar to the commencement of a criminal action and therefore, waivable. 13 But this will have to contend with the Constitutional provision that while the Supreme Court has the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleadings, practice and procedure in all courts, the admission to the practice of law, the integrated bar, and the legal assistance to the underprivileged, such rules shall not however diminish, increase or modify substantive rights .
14

ACCORDINGLY, the petition is GRANTED and the questioned decision is SET ASIDE. SO ORDERED. Melencio-Herrera (Chairperson), Paras, Sarmiento and Regalado, JJ., concur. Footnotes
1 Rollo, pp. 32 and 45. 2 Art. 90, Revised Penal Code. 3 People v. Del Rosario, G.R. No. L-7234, May 21,1955, 97 Phil. 67. 4 Rollo, p. 16. 5 Ibid., p. 28. 6 G.R. No. L-45674,13 May 1983,122 SCRA 538. 7 G.R. No. 69867, 7 July 1987. 8 Francisco vs. CA, supra. 9 Memorandum, pp, 2 and 10. 10 People vs. Moran, 44 Phil. 387, 433; Santos vs. Superintendent, 55 Phil. 345. 11 Page 694, Vol. I, The Revised Penal Code, by Ramon C. Aquino. 12 Francisco vs. CA, supra. 13 Memorandum, p. 10. 14 Sec. 5, [5], Art. 8, 1987 Constitution.

BAGUIO MARKET VENDORS MULTI-PURPOSE COOPERATIVE (BAMARVEMPCO), represented by RECTO INSO, Operations Manager, Petitioner,

G.R. No. 165922 Present: CARPIO, J., Chairperson,

BRION, DEL CASTILLO, - versus ABAD, and PEREZ, JJ.

HON. ILUMINADA CABATO-CORTES, Executive Judge, Regional Trial Court, Baguio City, Respondent. ____________________ x --------------------------------------------------------------------------------------- x Promulgated:

DECISION

CARPIO, J.:

The Case

For review[1] are the Orders[2] of the Executive Judge of the Regional Trial Court of Baguio City finding petitioner Baguio Market Vendors Multi-Purpose Cooperative liable for payment of foreclosure fees.

The Facts

Petitioner Baguio Market Vendors Multi-Purpose Cooperative (petitioner) is a credit cooperative organized under Republic Act No. 6938 (RA 6938), or the Cooperative Code of the Philippines.[3] Article 62(6) of RA 6938 exempts cooperatives:

from the payment of all court and sheriff's fees payable to the Philippine Government for and in connection with all actions brought under this Code, or where such action is brought by the Cooperative Development Authority before the court, to enforce the payment of obligations contracted in favor of the cooperative.[4]

In 2004, petitioner, as mortgagee, filed with the Clerk of Court of the Regional Trial Court of Baguio City (trial court) a petition to extrajudicially foreclose a mortgage under Act 3135, as amended.[5] Under Section 7(c) of Rule 141, as amended,[6] petitions for extrajudicial foreclosure are subject to legal fees based on the value of the mortgagees claim. Invoking Article 62 (6) of RA 6938, petitioner sought exemption from payment of the fees.

The Ruling of the Trial Court

In an Order dated 30 August 2004, Judge Iluminada Cabato-Cortes (respondent), Executive Judge of the trial court, denied the request for exemption, citing Section 22 of Rule 141 of the Rules of Court, as amended, exempting from the Rules coverage only the Republic of the Philippines, its agencies and instrumentalities and certain suits of local government units.[7] Petitioner sought reconsideration but respondent denied its motion in the Order dated 6 October 2004. This time, respondent reasoned that petitioners reliance on Article 62(6) of RA 6938 is misplaced because the fees collected under Rule 141 are not fees payable

to the Philippine Government as they do not accrue to the National Treasury but to a special fund[8] under the Courts control.[9]

Hence, this petition.

Petitioner maintains that the case calls for nothing more than a simple application of Article 62(6) of RA 6938.

The Office of the Solicitor General (OSG), in its Manifestation (in lieu of Comment), joins causes with petitioner. The OSG submits that as the substantive rule, Article 62(6) of RA 6938 prevails over Section 22 of Rule 141, a judicial rule of procedure. The OSG also takes issue with respondents finding that the legal fees collected under Rule 141 are not fees payable to the Philippine Government as the judiciary forms part of the Philippine government, as defined under the Revised Administrative Code.[10]

Although not a party to this suit, we required the Courts Office of the Chief Attorney (OCAT) to comment on the petition, involving as it does, issues relating to the Courts power to promulgate judicial rules. In its compliance, the OCAT recommends the denial of the petition, opining that Section 22, Rule 141, as amended, prevails over Article 62(6) of RA 6938 because (1) the power to impose judicial fees is eminently judicial and (2) the 1987 Constitution insulated the Courts rule-making powers from Congress interference by omitting in the 1987 Constitution the provision in the 1973 Constitution allowing Congress to alter judicial rules. The OCAT called attention to the Courts previous denial of a request by a cooperative group for the issuance of guidelines to implement cooperatives fees exemption under Article 62(6) of RA 6938. [11] Lastly, the OCAT recommends the amendment of Section 22, Rule 141 to make

explicit the non-exemption of cooperatives from the payment of legal fees.

The Issue The question is whether petitioners application for extrajudicial foreclosure is exempt from legal fees under Article 62(6) of RA 6938.

The Ruling of the Court

We hold that Article 62(6) of RA 6938 does not apply to petitioners foreclosure proceeding.

Petitions for Extrajudicial Foreclosure Outside of the Ambit of Article 62(6) of RA 6938 The scope of the legal fees exemption Article 62(6) of RA 6938 grants to cooperatives is limited to two types of actions, namely: (1) actions brought under RA 6938; and (2) actions brought by the Cooperative Development Authority to enforce the payment of obligations contracted in favor of cooperatives. By simple deduction, it is immediately apparent that Article 62(6) of RA 6938 is no authority for petitioner to claim exemption from the payment of legal fees in this proceeding because first, the fees imposable on petitioner do not pertain to an action brought under RA 6938 but to a petition for extrajudicial foreclosure of mortgage under Act 3135. Second, petitioner is not the Cooperative Development Authority which can claim exemption only in actions to enforce payments of obligations on behalf of cooperatives.

The Power of the Legislature vis a vis the Power of the Supreme Court to Enact Judicial Rules

Our holding above suffices to dispose of this petition. However, the Court En Banc has recently ruled in Re: Petition for Recognition of the Exemption of the Government Service Insurance System from Payment of Legal Fees [12] on the issue of legislative exemptions from court fees. We take the opportunity to reiterate our En Banc ruling in GSIS. Until the 1987 Constitution took effect, our two previous constitutions textualized a power sharing scheme between the legislature and this Court in the enactment of judicial rules. Thus, both the 1935[13] and the 1973[14] Constitutions vested on the Supreme Court the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. However, these constitutions also granted to the legislature the concurrent power to repeal, alter or supplement such rules.[15]

The 1987 Constitution textually altered the power-sharing scheme under the previous charters by deleting in Section 5(5) of Article VIII Congress subsidiary and corrective power.[16] This glaring and fundamental omission led the Court to observe in Echegaray v. Secretary of Justice[17] that this Courts power to promulgate judicial rules is no longer shared by this Court with Congress:

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it enhanced the rule making power of this Court [under] Section 5(5), Article VIII [18] x x x .

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasijudicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure . In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. x x x x (Italicization in the original; boldfacing supplied)

Any lingering doubt on the import of the textual evolution of Section 5(5) should be put to rest with our recent En Banc ruling denying a request by the Government Service Insurance System (GSIS) for exemption from payment of legal fees based on Section 39 of its Charter, Republic Act No. 8291, exempting GSIS from all taxes, assessments, fees, charges or dues of all kinds.[19] Reaffirming Echegarays construction of Section 5(5), the Court described its exclusive power to promulgate rules on pleading, practice and procedure as one of the safeguards of this Courts institutional independence:

[T]he payment of legal fees is a vital component of the rules promulgated by this Court concerning pleading, practice and procedure, it cannot be validly annulled, changed or modified by Congress. As one of the safeguards of this Courts institutional independence , the power to promulgate rules of pleading, practice and procedure is now the Courts exclusive domain .[20] x x x (Emphasis supplied)

WHEREFORE, we DENY the petition. We AFFIRM the Orders dated 30 August 2004 and 6 October 2004 of the Executive Judge of the Regional Trial Court of Baguio City.

Let a copy of this Decision be furnished the Office of the Court Administrator for circulation to all courts.

SO ORDERED.

ANTONIO T. CARPIO Associate Justice

WE CONCUR:

ARTURO D. BRION Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD Associate Justice

JOSE P. PEREZ Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO Associate Justice Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO Chief Justice

[1] [2] [3] [4] [5]

Under Rule 45 of the 1997 Rules of Civil Procedure. Dated 30 August 2004 and 6 October 2004.

Effective 27 April 1990, 15 days after its publication in the Official Gazette on 2 April 1990 following Article 130 of RA 6938.

For a comparison of the varying tax treatment of cooperatives created under RA 6938 and cooperatives created under Presidential Decree, see PHILRECA v. Secretary, 451 Phil. 683 (2003). Real[6]

An Act To Regulate the Sale of Property Under Special Powers Inserted In Or Annexed To Estate Mortgages. Most recently by Administrative Matter No. 04-2-04-SC, effective 16 August 2004. [7]
Section 22 provides: Government exempt. The Republic of the Philippines, its agencies and instrumentalities are exempt from paying the legal fees provided in the Rule. Local governments and governmentowned or controlled corporations with or without independent charters are not exempt from paying such fees. However, all court actions, criminal or civil instituted at the instance of the provincial, city or municipal

treasurer or assessor under Sec. 280 of the Local Government Code of 1991 shall be exempt from the payment of court and sheriffs fees. [8] [9] [10] [11]

The Judiciary Development Fund, created under Presidential Decree No. 1949. Rollo, p. 15. Executive Order No. 292.

A.M. No. 92-9-408-O, 6 October 1992, Re: Request of the Philippine Federation of Credit Cooperatives, Inc. (Min. Res.)
[12] [13] [14]

A.M. No. 08-2-01-0, 11 February 2010 (Res.). Article VIII, Section 13. Article X, Section 5(5).
The 1935 Constitution provides: The Congress shall have the power to repeal, alter or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines. (Section 13, Article VIII). Similarly, the 1973 Constitution provides: The Supreme Court shall have the following powers: x x x (5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the bar, which, however, may be repealed, altered or supplemented by the Batasang Pambansa. (Section 5(5), Article X).

[15]

[16] [17] [18]

In Re Cunanan, 94 Phil. 534 (1954). 361 Phil. 73, 88 (1999). The provision reads in full: Section 5. The Supreme Court shall have the following powers: xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. [19] [20]

Supra note 12. Id. at 13-14.

G.R. No. L-2068

October 20, 1948

DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCERO, Judge of First Instance of Pampanga, Respondent. TUASON, J.:
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The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of Pampanga after he had been bound over to that court for trial, praying that the record of the case be remanded to the justice of the peace court of Masantol, the court of origin, in order that the petitioner

might cross-examine the complainant and her witnesses in connection with their testimony, on the strength of which warrant was issued for the arrest of the accused. The motion was denied and that denial is the subject matter of this proceeding.
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According to the memorandum submitted by the petitioner's attorney to the Court of First Instance in support of his motion, the accused, assisted by counsel, appeared at the preliminary investigation. In that investigation, the justice of the peace informed him of the charges and asked him if he pleaded guilty or not guilty, upon which he entered the plea of not guilty. "Then his counsel moved that the complainant present her evidence so that she and her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected, invoking section 11 of rule 108, and the objection was sustained. "In view thereof, the accused's counsel announced his intention to renounce his right to present evidence," and the justice of the peace forwarded the case to the court of first instance.
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Leaving aside the question whether the accused, after renouncing his right to present evidence, and by reason of that waiver he was committed to the corresponding court for trial, is estopped, we are of the opinion that the respondent judge did not act in excess of his jurisdiction or in abuse of discretion in refusing to grant the accused's motion to return the record for the purpose set out therein. In Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336, recently promulgated, in which case the respondent justice of the peace had allowed the accused, over the complaint's objection, to recall the complainant and her witnesses at the preliminary investigation so that they might be cross-examined, we sustained the justice of the peace's order. We said that section 11 of Rule 108 does not curtail the sound discretion of the justice of the peace on the matter. We said that "while section 11 of Rule 108 defines the bounds of the defendant's right in the preliminary investigation, there is nothing in it or any other law restricting the authority, inherent in a court of justice, to pursue a course of action reasonably calculated to bring out the truth."
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But we made it clear that the "defendant can not, as a matter of right, compel the complaint and his witnesses to repeat in his presence what they had said at the preliminary examination before the issuance of the order of arrest." We called attention to the fact that "the constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings' nor will the absence of a preliminary examination be an infringement of his right to confront witnesses." As a matter of fact, preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial.
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The foregoing decision was rendered by a divided court. The minority went farther than the majority and denied even any discretion on the part of the justice of the peace or judge holding the preliminary investigation to compel the complainant and his witnesses to testify anew.
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Upon the foregoing considerations, the present petition is dismissed with costs against the petitioner. Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur.

Separate Opinions FERIA, J., dissenting: I am sorry to dissent from the decision.
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The petitioner in the present case appeared at the preliminary investigation before the Justice of the Peace of Masantol, Pampanga, and after being informed of the criminal charges against him and asked if he pleaded guilty or not guilty, pleaded not guilty. "Then the counsel for the petitioner moved that the complainant present her evidence so that her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected to petitioner's motion invoking section 11, Rule 108, and the objection was sustained. In view thereof, the accused refused to present his evidence, and the case was forwarded to the Court of First Instance of Pampanga.
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The counsel for the accused petitioner filed a motion with the Court of First Instance praying that the record of the case be remanded to the justice of the peace of Masantol, in order that the petitioner might cross-examine the complainant and her witnesses in connection with their testimony. The motion was denied, and for that reason the present special civil action of mandamus was instituted.
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It is evident that the refusal or waiver of the petitioner to present his evidence during the investigation in the justice of the peace, was not a waiver of his alleged right to be confronted with and crossexamine the witnesses for the prosecution, that is, of the preliminary investigation provided for in General Order No. 58 and Act No. 194, to which he claims to be entitled, as shown by the fact that, as soon as the case was forwarded to the Court of First Instance, counsel for the petitioner filed a motion with said court to remand the case to the Justice of the Peace of Masantol ordering the latter to make said preliminary investigation. His motion having been denied, the petitioner has filed the present action in which he squarely attacks the validity of the provision of section 11, Rule 108, on the ground that it deprives him of the right to be confronted with and cross-examine the witnesses for the prosecution, contrary to the provision of section 13, Article VIII, of the Constitution.
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In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not discuss and decide the question of validity or constitutionality of said section 11 in connection with section 1 of Rule 108, because that question was not raised therein, and we merely construed the provisions on preliminary investigation or Rule 108. In said case the writer of this dissenting opinion said: It may not be amiss to state that, modesty aside, the writer of this dissenting opinion, then a practising attorney, was the one who prepared the draft of the Rules of Court relating to criminal procedure, and the provisions on preliminary investigation in the draft were the same as those of the old law, which gave the defendant the right to be confronted with and to cross-examine the witnesses for the prosecution. But the Supreme Court approved and adopted in toto the draft, except the part referring to preliminary investigation which it modified, by suppressing said right and enacting, in its stead, the provisions of section 11 of Rule 108 in its present form. I prefer the old to the new procedure. But I can not subscribe to the majority decision, which is a judicial legislation and makes the exercise of the right of a defendant to be confronted, with and cross-examine the witnesses against him, to depend entirely upon the whim or caprice of a judge or officer conducting the preliminary investigation. But now the question of the validity of said section 11, Rule 108, is squarely presented to this Court for decision, we have perforce to pass upon it.
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Section 13, Article VIII, of the Constitution prescribes that "the Supreme Court shall have power to promulgate rules concerning pleading, practice and procedure in all courts, but said rules shall not diminish, increase or modify substantive rights." The constitution added the last part of the abovequoted constitutional precept in order to emphasize that the Supreme Court is not empowered, and therefore can not enact or promulgate substantive laws or rules, for it is obvious that rules which diminish, increase or modify substantive rights, are substantive and not adjective laws or rules

concerning pleading, practice and procedure.

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It does not require an elaborate arguments to show that the right granted by law upon a defendant to be confronted with and cross-examine the witnesses for the prosecuted in preliminary investigation as well as in the trial of the case is a substantive right. It is based on human experience, according to which a person is not prone to tell a lie against another in his presence, knowing fully well that the latter may easily contradict him, and that the credibility of a person or veracity of his testimony may be efficaciously tested by a cross-examination. It is substantive right because by exercising it, an accused person may show, even if he has no evidence in his favor, that the testimonies of the witnesses for the prosecution are not sufficient to indicate that there is a probability that a crime has been committed and he is guilty thereof, and therefore the accused is entitled to be released and not committed to prison, and thus avoid an open and public accusation of crime, the trouble, expense, and anxiety of a public trial, and the corresponding anxiety or moral suffering which a criminal prosecution always entails.
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This right is not a constitutional but a statutory right granted by law to an accused outside of the City of Manila because of the usual delay in the final disposition of criminal cases in provinces. The law does not grant such right to a person charged with offenses triable by the Court of First Instance in the City of Manila, because of the promptness, actual or presumptive, with which criminal cases are tried and disposed of in the Court of First Instance of said city. But this right, though not a constitutional one, can not be modified, abridged, or diminished by the Supreme Court, by virtue of the rule making power conferred upon this Court by the Constitution.
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Since the provisions of section 11 of Rule 108 as construed by this Court in several cases, (in which the question of constitutionality or validity of said section had not been squarely raised) do away with the defendant's right under discussion, it follows that said section 11 diminishes the substantive right of the defendant in criminal case, and this Court has no power or authority to promulgate it and therefore is null and void.
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The fact that the majority of this Court has ruled in the above cited case of Dequito and Saling Buhay vs. Arellano, that the inferior or justice of the peace courts have discretion to grant a defendant's request to have the witnesses for the prosecution recalled to testify again in the presence of the defendant and be cross-examined by the latter, does not validate said provision; because to make the exercise of an absolute right discretionary or dependent upon the will or discretion of the court or officer making the preliminary investigation, is evidently to diminish or modify it.
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Petition is therefore granted. PERFECTO, J., dissenting:

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In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs. Arellano, No. L1336, we said: In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that will not contravene the constitutional provision guaranteeing to all accused the right "to meet the witnesses face to face." (Section 1 [17], Article III.)
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Consequently, at the preliminary hearing contemplated by said reglementary section, the defendant is entitled as a matter of fundamental right to her the testimony of the witnesses for the prosecution and to cross-examine them.
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Although in such preliminary hearing the accused cannot finally be convicted, he is liable to endure the ordeal eloquently depicted in the decision, and the constitutional guarantee protects defendants, not only from the jeopardy of being finally convicted and punished,

but also from the physical, mental and moral sufferings that may unjustly be visited upon him in any one of the stages of the criminal process instituted against him. He must be afforded the opportunities to have the charges against him quashed, not only at the final hearing, but also at the preliminary investigation, if by confronting the witnesses for the prosecution he can convince the court that the charges are groundless. There is no justice in compelling him to undergo the troubles of a final hearing if at the preliminary hearing the case can be terminated in his favor. Otherwise, the preliminary investigation or hearing will be an empty gesture that should not have a place within the framework of dignified and solemn judicial proceedings. On the strength of the above quoted opinion the opinion should be granted and so we vote. Petition dismissed. RESOLUTION March 8, 1949 TUASON, J.:
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This cause is now before us on a motion for reconsideration.

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In the decision sought to be reconsidered, we said, citing Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336: "The constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings; nor will the absence of a preliminary examination be an infringement of his right to confront witness. As a matter of fact, preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial." We took this ruling to be ample enough to dispose the constitutional question pleaded in the application for certiorari. Heeding the wishes of the petitioner, we shall enlarge upon the subject.
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It is contended that section 11 of Rule 108 of the Rules of Court 1 infringes section 13, Article VIII, of the Constitution. 2 It is said that the rule in question deals with substantive matters and impairs substantive rights.
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We can not agree with this view. We are of the opinion that section 11 of Rule 108, like its predecessors, is an adjective law and not a substantive law or substantive right. Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations. (60 C.J., 980.) Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their invasion. (36 C. J., 27; 52 C. J. S., 1026.)
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As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from the procedural law which provides or regulates the steps by which one who commits a crime is to be punished. (22 C. J. S., 49.) Preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution.
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As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence - which is the "the mode and manner of proving the competent facts and circumstances on which a party relies to establish the fact in dispute in judicial proceedings" - is identified with and forms part of the method by which, in private law, rights are enforced and redress obtained, and, in criminal law, a law transgressor is punished.

Criminal procedure refers to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) the entire rules of evidence have been incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules.
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In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said: Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U. S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Ct. Rep., 443. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S., 343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is not well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at the trial, by removing the disqualification of persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which changes the rules of evidence after the indictment so as to render admissible against the accused evidence previously held inadmissible, Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep., 922; or which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or which abolishes a court for hearing criminal appeals, creating a new one in its stead. See Duncan vs. Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 sup. Ct. Rep., 570. Tested by this standard, we do not believe that the curtailment of the right of an accused in a preliminary investigation to cross-examine the witnesses who had given evidence for his arrest is of such importance as to offend against the constitutional inhibition. As we have said in the beginning, preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition.
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While section 11 of Rule 108 denies to the defendant the right to cross-examine witnesses in a preliminary investigation, his right to present his witnesses remains unaffected, and his constitutional right to be informed of the charges against him both at such investigation and at the trial is unchanged. In the latter stage of the proceedings, the only stage where the guaranty of due process comes into play, he still enjoys to the full extent the right to be confronted by and to cross-examine the witnesses against him. The degree of importance of a preliminary investigation to an accused may be gauged by the fact that this formality is frequently waived.
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The distinction between "remedy" and "substantive right" is incapable of exact definition. The difference is somewhat a question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.) It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused

in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage. For the Court's power is not merely to compile, revise or codify the rules of procedure existing at the time of the Constitution's approval. This power is "to promulgate rules concerning pleading, practice, and procedure in all courts," which is a power to adopt a general, complete and comprehensive system of procedure, adding new and different rules without regard to their source and discarding old ones.
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The motion is denied. Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, JJ., concur. --> FERIA, J., dissenting: I dissent.
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The motion for reconsideration must be granted.

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According to the resolution, the right of a defendant to be confronted with and cross-examine the witnesses for the prosecution in a preliminary investigation granted by law or provided for in General Orders, No. 58, as amended, in force prior to the promulgation of the Rules of Court, is not a substantive right but a mere matter of procedure, and therefore this Court can suppress it in section 11, Rule 108, of the Rules of Court, for the following reasons:
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First. Because "preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is also procedural." . . . "The entire rules of evidence have been incorporated into the Rules of Court." And therefore "we can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole Code of evidence embodied in these rules."
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Secondly. Because, "preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition."
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Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of exact definition. The difference is somewhat a question of degree" . . . It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. . . . "This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage."
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Before proceeding it is necessary to distinguish substantive law from procedure, for the distinction is not always well understood. Substantive law is that part of the law which creates, defines, and regulates rights as opposed to objective or procedural law which prescribes the method of enforcing rights. What constitutes practice and procedure in the law is the mode or proceeding by which a legal right is enforced, "that which regulates the formal steps in an action or judicial proceedings; the course of procedure in courts; the form, manner and order in which proceedings have been, and are accustomed to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts through their various sages according to the principles of law and the rules laid down by the respective courts." 31 Cyc. Law and Procedure, p. 1153; id., 32, section 405; Rapalje & Lawrence's Law Dictionary; Anderson Law Dictionary; Bouvier's Law Dictionary.
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Substantive rights may be created or granted either in the Constitution or in any branch of the law, civil, criminal, administrative or procedural law. In our old Code of Civil Procedure, Act No. 190, as amended, there are provisions which create, define and regulate substantive rights, and many of those provisions such as those relating to guardianship, adoption, evidence and many others are incorporated in the Rules of Court for the sake of convenience and not because this Court is empowered to promulgate them as rules of court. And our old law of Criminal Procedure General Orders No. 58 grants the offended party the right to commence a criminal action or file a complaint against the offender and to intervene in the criminal prosecution against him, and grants the defendant in the Court of First Instance (except in the City of Manila) the right to bail, and to a preliminary investigation including his rights during said investigation, and the rights at the trial, which are now reproduced or incorporated in Rules 106, 108, 110, and 111 of the Rules of Court, except the rights now in question. And all these, and others not necessary for us to mention, are obviously substantive rights.
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(1) As to the first argument, the premise "the preliminary investigation is eminently and essentially remedial is not correct. Undoubtedly the majority means to say procedural, in line with the conclusion in the resolution, because remedial law is one thing, and procedural law is another. Obviously they are different branches of the law. "Remedial statute" is "a statute providing a remedy for an injury as distinguished from a penal statute. A statute giving a party a mode of remedy for a wrong where he had none or a different one before. . . . Remedial statutes are those which are made to supply such defects, and abridge such superfluities in the common law, as arise either from the general imperfections of all human law, from change of time and circumstances, from the mistakes and unadvised determination of unlearned (or even learned) judges, or from any other cause whatsoever." (Black's Law Dictionary, third edition, pp. 1525, 1526.)
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It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant after arrest "is a rule of evidence and therefore is also procedural." In the first place, the provisions of said section to the effect that "the defendant, after the arrest and his delivery to the court has the right to be informed of the complaint or information filed against him, and also to be informed of the testimony and evidence presented against him, and may be allowed to testify and present witnesses or evidence for him if he so desires," are not rules of evidence; and in the second place, it is evident that most of the rules of evidence, if not all, are substantive laws that define, create or regulate rights, and not procedural. "Rules of evidence are substantive rights found in common law chiefly and growing out of reasoning, experience and common sense of lawyers and courts." (State vs. Pavelich, et al., 279 P., 1102.) "It is true that weighing of evidence and the rules of practice with respect thereto form part of the law of procedure, but the classification of proofs is sometime determined by the substantive law." (U. S. vs. Genato, 15 Phil., 170, 176.) How can the law on judicial notice, conclusive as well as juris tantum presumption, hearsay and best evidence rule, parol evidence rule, interpretation of documents, competency of a person to testify as a witness be considered procedural?
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Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules," is evidently wrong, not only for the reason just stated, but because our contention that the defendant can not be deprived of his right to be confronted with and cross-examine the witness of the prosecution is a preliminary investigation under consideration would not, if upheld, necessarily tear down said section. Our theory, is that said section 11 should be so construed as to be valid and effective, that is, that if the defendant asks the court to recall the witness or witnesses for the prosecution to testify again in his presence, and to allow the former to cross-examine the latter, the court or officer making the preliminary investigation is under obligation to grant the request. But if the defendant does not so ask the court, he should be considered as waiving his right to be confronted with and cross-examine the witness against him.
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(2) With respect to the second argument or reason, it is true that the preliminary investigation as provided for in the General Orders, No. 58, as amended, is not an essential part of due process of law, because "due process of law" is not iron clad in its meaning; its does not necessarily mean a particular procedure. Due process of law simply requires a procedure that fully protects the life, liberty and property. For that reason the investigation to be made by the City Fiscal of the City of Manila under Act No. 612, now section 2465 of the Administrative Code, before filing an information, was considered by this Court as sufficient to satisfy the due process of law constitutional requirement (U. S. vs. Ocampo, 18 Phil., 1; U. S. vs. Grant and Kennedy, 18 Phil., 122). But it is also true that we have already and correctly held that: "The law having explicitly recognized and established that no person charged with the commission of a crime shall be deprived of his liberty or subjected to trial without prior preliminary investigation (provided for in General orders, No. 58, as amended) that shall show that there are reasonable grounds to believe him guilty, there can be no doubt that the accused who is deprived of his liberty, tried and sentenced without the proper preliminary investigation having been made in his regard, is convicted without the process of law ," (United States vs. Banzuela, 31 Phil., 564).
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The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216, quoted in the resolution, has no application to the present case, for the question involved therein was the power of Congress to alter the rules of evidence and procedure without violating the constitutional precept that prohibits the passing of ex post facto law, while the question herein involved is the power of the Supreme Court to promulgate rules of pleading, practice and procedure, which diminish the substantive right of a defendant, expressly prohibited by the same provision of the Constitution that confers upon this Court the power to promulgate said rules.
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(3) The last reason or argument premised on the conclusion that "the distinction between remedy and 'substantive right' is incapable of exact definition;" indeed "the difference is somewhat a question of degree," (Dexter vs. Edmonds, 89 F 487), is immaterial, because, as we have already said in refuting the majority's first reason, remedy and procedure are two completely different things.
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As above defined, substantive law is clearly differentiated from procedural law and practice. But even assuming arguendo that it is difficult to draw the line in any particular case beyond which the power of the court over procedure can not pass without touching upon the substantial right of the parties, what this Court should do in that case would be to abstain from promulgating such rule of procedure which many increase, diminish or modify substantive right in order to avoid violating the constitutional prohibition above referred to. Because as this Supreme Court is not empowered by the Constitution to legislate on or abrogate substantive rights, but only to promulgate rules of pleading, practice and procedure which "shall not diminish, increase or modify substantive rights," this Court can not step on them in making the rules, and the Constitution must be presumed not to tolerate nor expect such incursion as would affect the substantive rights of the accused in any manner.
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Besides, depriving an accused of his right to be confronted and cross-examine the witness against him in a preliminary investigation would affect the accused not in a limited and unsubstantial but in a harsh and arbitrary manner. The testimony of a witness given in the absence of the defendant and without an opportunity on the part of the latter to cross-examine him is a hearsay evidence, and it should not be admitted against the defendant in a preliminary investigation that is granted to the latter as a protection against hasty, malicious and oppressive prosecutions (U. S. vs. Grant and Kennedy, supra). Otherwise, an accused who is innocent and should not be arrested, or if arrested should be released immediately a short time after his arrest after the preliminary investigation, would have to be held for trial and wait for a considerable period of time until the case is tried and acquitted after trial by the Courts of First Instance in provinces on account of the admission of such evidence in the preliminary investigation, evidence not admissible at the trial.
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Therefore, the motion for reconsideration is granted, and after the necessary proceedings the decision

of the majority reversed or modified in accordance with my dissenting opinion. PERFECTO, J.:
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We dissent. Our opinion in the Dequito case still stands. The motion for reconsideration should be granted. Endnotes: TUASON, J.: of defendant after arrest. - After the arrest of the defendant and his delivery to the court, he shall be informed of the complaint or information filed against him. He shall also be informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in writing and subscribed by him.
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1 Rights

The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice, and procedure are hereby repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme Court to alter and modify the same. The National Assembly shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines.

G.R. No. L-46095 November 23, 1977 PHILIPPINE NATIONAL BANK, petitioner, vs. HONORABLE ELIAS B. ASUNCION, FABAR INCORPORATED, JOSE MA. BARREDO, CARMEN B. BORROMEO and TOMAS L. BORROMEO, respondents. Nestor L. Kalaw, Carlos R. Cruz & Rolando S. Santos for petitioner, Conrado B. Enriquez for private respondents. MAKASIAR, J.: Philippine National Bank (hereafter referred to as the petitioner), on January 16, 1963, granted in favor of respondent Fabar Incorporated various credit accommodations and advances in the form of a discounting line, overdraft line, temporary overdraft line and letters of credit covering the importation of machinery and equipment. Petitioner likewise made advances by way of insurance premiums covering the chattels subject matter of a mortgage securing the aforementioned credit accommodations. Said credit accommodations had an outstanding balance of P8,449,169.98 as of May 13, 1977. All of the above credit accommodations are secured by the joint and several signatures of

Jose Ma. Barredo, Carmen B. Borromeo and Tomas L. Borromeo (private respondents herein) and Manuel H. Barredo- For failure of private respondents to pay their obligations notwithstanding repeated demands, petitioner instituted a case for collection against all private respondents and Manuel H. Barredo in a complaint dated October 31, 1972, and which was filed before the sala of the Honorable Elias B. Asuncion, Judge of the Court of First Instance of Manila, Branch XII (hereafter referred to as the respondent Court). On May 19, 1975, before the case could be decided, Manuel H. Barredo died. In a Manifestation dated June 6, 1975, counsel for private respondents informed the respondent Court of said death. Subsequently, respondent Court issued an Order of dismissal dated November 29, 1976, which is hereinbelow quoted as follows:
In view of the death of defendant Manuel Barredo, the Court hereby dismisses this case since the present suit is for a money claim which does not survive the death of said defendant. Pursuant to the provisions of Section 6, Rule 86 of the Revised Rules of Court, which provides: Where the obligation of the decedent is solidary with another debtor, the claim shall be filed against the decedent as if he were the only debtor, without prejudice to the right of the estate to recover contribution from the other debtor ... the claim of plaintiff may be filed with the estate proceedings of the decedent.

Petitioner thereupon filed a Motion dated December 14, 1976 praying for the reconsideration of respondent Court's Order dismissing the case as against all the defendants, contending that the dismissal should only be as against the deceased defendant Manuel H. Barredo. In an order dated January 26, 1977, respondent Court denied petitioner's motion for reconsideration for lack of meritorious grounds. Hence, this instant petition for review on certiorari. Petitioner, in its lone assignment of error, alleged that the respondent Court erred in dismissing the case against all the defendants, instead of dismissing the case only as against the deceased defendant and thereafter proceeding with the hearing as against the other defendants, private respondents herein. Petitioner's contention is well taken. Respondent Court's reliance on Section 6, Rule 86 of the Revised Rules of Court was erroneous. A cursory perusal of Section 6, Rule 86 of the Revised Rules of Court reveals that nothing therein prevents a creditor from proceeding against the surviving solidary debtors. Said provision merely sets up the procedure in enforcing collection in case a creditor chooses to pursue his claim against the estate of the deceased solidary debtor. The rule has been set forth that a creditor (in a solidary obligation) has the option whether to file or not to file a claim against the estate of the solidary debtor. In construing Section 6, Rule 87 of the old Rules of Court, which is the precursor of Section 6, Rule 86 of the Revised Rules of Court, this Court said, in the case of Manila Surety & Fidelity Co., Inc. vs. Villarama, et al. (107 Phil. 891) that:
It is evident from the foregoing that Section 6 of Rule 87 (of the Old Rules of Court) provides the procedure should the creditor desire to go against the deceased debtor, but there is certainly nothing in the said provision making compliance with such procedure a condition precedent before an ordinary action against the surviving debtors, should the creditor choose to demand payment from the latter, could be entertained to the extent that failure to observe the same would deprive the court jurisdiction to 'take cognizance of the action against the surviving debtors. Upon the other hand, the Civil Code expressly allow the creditor to proceed against any one of the solidary debtors or some or all of them simultaneously.

It is crystal clear that Article 1216 of the New Civil Code is the applicable provision in this matter. Said provision gives the creditor the night to "proceed against anyone of the solidary debtors or some or all of them simultaneously. "The choice is undoubtedly left to the solidary creditor to determine against whom he will enforce collection. In case of the death of one of the solidary debtors, he (the creditor) may, if he so chooses, proceed against the surviving solidary debtors without necessity of filing a claim in the estate of the deceased debtors. It is not mandatory for him to have the case dismissed as against the surviving debtors and file its claim against the estate of the deceased solidary debtor, as was made apparent in the aforequoted decision. For to require the creditor to proceed against the estate, making it a condition precedent for any collection action against the surviving debtors to prosper, would deprive him of his substantive rights provided by Article 1216 of the New Civil Code. As correctly argued by petitioner, if Section 6, Rule 86 of the Revised Rules of Court were applied literally, Article 1216 of the New Civil Code would, in effect, be repealed since under the Rules of Court, petitioner has no choice but to proceed against the estate of Manuel Barredo only. Obviously, this provision diminishes the Bank's right under the New Civil Code to proceed against any one, some or all of the solidary debtors. Such a construction is not sanctioned by the principle, which is too well settled to require citation, that a substantive law cannot be amended by a procedural rule. Otherwise stated, Section 6, Rule 86 of the Revised Rules of Court cannot be made to prevail over Article 1216 of the New Civil Code, the former being merely procedural, while the latter, substantive Moreover, no less than the New Constitution of the Philippines, in Section 5, Article X, provides that rules promulgated by the Supreme Court should not diminish, increase or modify substantive rights. WHEREFORE, JUDGMENT IS HEREBY RENDERED MODIFYING THE APPEALED ORDERS OF RESPONDENT COURT DATED NOVEMBER 29, 1976 AND JANUARY 26, 1977 IN THE SENSE THAT AS AGAINST THE DECEASED MANUEL H. BARREDO, THE CASE IS DISMISSED, BUT AS AGAINST ALL THE OTHER SOLIDARY DEBTORS, THE CASE IS REMANDED TO RESPONDENT COURT FOR FURTHER PROCEEDINGS. NO COSTS. SO ORDERED. Teehankee (Chairman), Martin, Fernandez and Guerrero, JJ., concur. Muoz-Palma, J., took no part. The Lawphil Project - Arellano Law Foundation

PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUO, STATE PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO ARELLANO, petitioners, vs. PANFILO M. LACSON, respondent. RESOLUTION CALLEJO, SR., J.:

Before the Court is the petitioners Motion for Reconsideration [1] of the Resolution[2] dated May 28, 2002, remanding this case to the Regional Trial Court (RTC) of Quezon City, Branch 81, for the determination of several factual issues relative to the application of Section 8 of Rule 117 of the Revised Rules of Criminal Procedure on the dismissal of Criminal Cases Nos. Q-99-81679 to Q-9981689 filed against the respondent and his co-accused with the said court. In the aforesaid criminal cases, the respondent and his co-accused were charged with multiple murder for the shooting and killing of eleven male persons identified as Manuel Montero, a former Corporal of the Philippine Army, Rolando Siplon, Sherwin Abalora, who was 16 years old, Ray Abalora, who was 19 years old, Joel Amora, Jevy Redillas, Meleubren Sorronda, who was 14 years old, [3] Pacifico Montero, Jr., of the 44th Infantry Batallion of the Philippine Army, Welbor Elcamel, SPO1 Carlito Alap-ap of the Zamboanga PNP, and Alex Neri, former Corporal of the 44th Infantry Batallion of the Philippine Army, bandied as members of the Kuratong Baleleng Gang. The respondent opposed petitioners motion for reconsideration.[4] The Court ruled in the Resolution sought to be reconsidered that the provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 were with the express consent of the respondent as he himself moved for said provisional dismissal when he filed his motion for judicial determination of probable cause and for examination of witnesses. The Court also held therein that although Section 8, Rule 117 of the Revised Rules of Criminal Procedure could be given retroactive effect, there is still a need to determine whether the requirements for its application are attendant. The trial court was thus directed to resolve the following: ... (1) whether the provisional dismissal of the cases had the express consent of the accused; (2) whether it was ordered by the court after notice to the offended party; (3) whether the 2-year period to revive it has already lapsed; (4) whether there is any justification for the filing of the cases beyond the 2-year period; (5) whether notices to the offended parties were given before the cases of respondent Lacson were dismissed by then Judge Agnir; (6) whether there were affidavits of desistance executed by the relatives of the three (3) other victims; (7) whether the multiple murder cases against respondent Lacson are being revived within or beyond the 2-year bar. The Court further held that the reckoning date of the two-year bar had to be first determined whether it shall be from the date of the order of then Judge Agnir, Jr. dismissing the cases, or from the dates of receipt thereof by the various offended parties, or from the date of effectivity of the new rule. According to the Court, if the cases were revived only after the two-year bar, the State must be given the opportunity to justify its failure to comply with the said time-bar. It emphasized that the new rule fixes a time-bar to penalize the State for its inexcusable delay in prosecuting cases already filed in court. However, the State is not precluded from presenting compelling reasons to justify the revival of cases beyond the two-year bar. In support of their Motion for Reconsideration, the petitioners contend that (a) Section 8, Rule 117 of the Revised Rules of Criminal Procedure is not applicable to Criminal Cases Nos. Q-99-81679 to Q-9981689; and (b) the time-bar in said rule should not be applied retroactively. The Court shall resolve the issues seriatim. I. SECTION 8, RULE 117 OF THE REVISED RULES OF CRIMINAL PROCEDURE IS NOT APPLICABLE TO CRIMINAL CASES NOS. Q-99-81679 TO Q-99-81689. The petitioners aver that Section 8, Rule 117 of the Revised Rules of Criminal Procedure is not applicable to Criminal Cases Nos. Q-99-81679 to Q-99-81689 because the essential requirements for its application were not present when Judge Agnir, Jr., issued his resolution of March 29, 1999. Disagreeing with the ruling of the Court, the petitioners maintain that the respondent did not give his express consent to the dismissal by Judge Agnir, Jr., of Criminal Cases Nos. Q-99-81679 to Q-99-

81689. The respondent allegedly admitted in his pleadings filed with the Court of Appeals and during the hearing thereat that he did not file any motion to dismiss said cases, or even agree to a provisional dismissal thereof. Moreover, the heirs of the victims were allegedly not given prior notices of the dismissal of the said cases by Judge Agnir, Jr. According to the petitioners, the respondents express consent to the provisional dismissal of the cases and the notice to all the heirs of the victims of the respondents motion and the hearing thereon are conditions sine qua non to the application of the timebar in the second paragraph of the new rule. The petitioners further submit that it is not necessary that the case be remanded to the RTC to determine whether private complainants were notified of the March 22, 1999 hearing on the respondents motion for judicial determination of the existence of probable cause. The records allegedly indicate clearly that only the handling city prosecutor was furnished a copy of the notice of hearing on said motion. There is allegedly no evidence that private prosecutor Atty. Godwin Valdez was properly retained and authorized by all the private complainants to represent them at said hearing. It is their contention that Atty. Valdez merely identified the purported affidavits of desistance and that he did not confirm the truth of the allegations therein. The respondent, on the other hand, insists that, as found by the Court in its Resolution and Judge Agnir, Jr. in his resolution, the respondent himself moved for the provisional dismissal of the criminal cases. He cites the resolution of Judge Agnir, Jr. stating that the respondent and the other accused filed separate but identical motions for the dismissal of the criminal cases should the trial court find no probable cause for the issuance of warrants of arrest against them. The respondent further asserts that the heirs of the victims, through the public and private prosecutors, were duly notified of said motion and the hearing thereof. He contends that it was sufficient that the public prosecutor was present during the March 22, 1999 hearing on the motion for judicial determination of the existence of probable cause because criminal actions are always prosecuted in the name of the People, and the private complainants merely prosecute the civil aspect thereof. The Court has reviewed the records and has found the contention of the petitioners meritorious. Section 8, Rule 117 of the Revised Rules of Criminal Procedure reads: Sec. 8. Provisional dismissal. A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. Having invoked said rule before the petitioners-panel of prosecutors and before the Court of Appeals, the respondent is burdened to establish the essential requisites of the first paragraph thereof, namely: 1. the prosecution with the express conformity of the accused or the accused moves for a provisional (sin perjuicio) dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of the case; 2. 3. 4. the offended party is notified of the motion for a provisional dismissal of the case; the court issues an order granting the motion and dismissing the case provisionally; the public prosecutor is served with a copy of the order of provisional dismissal of the case.

The foregoing requirements are conditions sine qua non to the application of the time-bar in the second

paragraph of the new rule. The raison d etre for the requirement of the express consent of the accused to a provisional dismissal of a criminal case is to bar him from subsequently asserting that the revival of the criminal case will place him in double jeopardy for the same offense or for an offense necessarily included therein.[5] Although the second paragraph of the new rule states that the order of dismissal shall become permanent one year after the issuance thereof without the case having been revived, the provision should be construed to mean that the order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has control of the prosecution [6] without the criminal case having been revived. The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal. Express consent to a provisional dismissal is given either viva voce or in writing. It is a positive, direct, unequivocal consent requiring no inference or implication to supply its meaning. [7] Where the accused writes on the motion of a prosecutor for a provisional dismissal of the case No objection or With my conformity, the writing amounts to express consent of the accused to a provisional dismissal of the case.[8] The mere inaction or silence of the accused to a motion for a provisional dismissal of the case [9] or his failure to object to a provisional dismissal [10] does not amount to express consent. A motion of the accused for a provisional dismissal of a case is an express consent to such provisional dismissal.[11] If a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived only within the periods provided in the new rule. On the other hand, if a criminal case is provisionally dismissed without the express consent of the accused or over his objection, the new rule would not apply. The case may be revived or refiled even beyond the prescribed periods subject to the right of the accused to oppose the same on the ground of double jeopardy [12] or that such revival or refiling is barred by the statute of limitations. [13] The case may be revived by the State within the time-bar either by the refiling of the Information or by the filing of a new Information for the same offense or an offense necessarily included therein. There would be no need of a new preliminary investigation. [14] However, in a case wherein after the provisional dismissal of a criminal case, the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged, a new preliminary investigation [15] must be conducted before an Information is refiled or a new Information is filed. A new preliminary investigation is also required if aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; or if under a new criminal complaint, the original charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal. The accused must be accorded the right to submit counteraffidavits and evidence. After all, the fiscal is not called by the Rules of Court to wait in ambush; the role of a fiscal is not mainly to prosecute but essentially to do justice to every man and to assist the court in dispensing that justice. [16] In this case, the respondent has failed to prove that the first and second requisites of the first paragraph of the new rule were present when Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q99-81689. Irrefragably, the prosecution did not file any motion for the provisional dismissal of the said criminal cases. For his part, the respondent merely filed a motion for judicial determination of probable cause and for examination of prosecution witnesses alleging that under Article III, Section 2 of the Constitution and the decision of this Court in Allado v. Diokno,[17] among other cases, there was a need for the trial court to conduct a personal determination of probable cause for the issuance of a warrant of arrest against respondent and to have the prosecutions witnesses summoned before the court for its examination. The respondent contended therein that until after the trial court shall have personally determined the presence of probable cause, no warrant of arrest should be issued against the

respondent and if one had already been issued, the warrant should be recalled by the trial court. He then prayed therein that: 1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be conducted by this Honorable Court, and for this purpose, an order be issued directing the prosecution to present the private complainants and their witnesses at a hearing scheduled therefor; and 2) warrants for the arrest of the accused-movants be withheld, or, if issued, recalled in the meantime until the resolution of this incident. Other equitable reliefs are also prayed for. [18] The respondent did not pray for the dismissal, provisional or otherwise, of Criminal Cases Nos. Q-9981679 to Q-99-81689. Neither did he ever agree, impliedly or expressly, to a mere provisional dismissal of the cases. In fact, in his reply filed with the Court of Appeals, respondent emphasized that: ... An examination of the Motion for Judicial Determination of Probable Cause and for Examination of Prosecution Witnesses filed by the petitioner and his other co-accused in the said criminal cases would show that the petitioner did not pray for the dismissal of the case. On the contrary, the reliefs prayed for therein by the petitioner are: (1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution; and (2) that warrants for the arrest of the accused be withheld, or if issued, recalled in the meantime until the resolution of the motion. It cannot be said, therefore, that the dismissal of the case was made with the consent of the petitioner. A copy of the aforesaid motion is hereto attached and made integral part hereof as Annex A. [19] During the hearing in the Court of Appeals on July 31, 2001, the respondent, through counsel, categorically, unequivocally, and definitely declared that he did not file any motion to dismiss the criminal cases nor did he agree to a provisional dismissal thereof, thus: JUSTICE SALONGA: And it is your stand that the dismissal made by the Court was provisional in nature? ATTY. FORTUN: It was in (sic) that the accused did not ask for it. What they wanted at the onset was simply a judicial determination of probable cause for warrants of arrest issued. Then Judge Agnir, upon the presentation by the parties of their witnesses, particularly those who had withdrawn their affidavits, made one further conclusion that not only was this case lacking in probable cause for purposes of the issuance of an arrest warrant but also it did not justify proceeding to trial. JUSTICE SALONGA: And it is expressly provided under Section 8 that a case shall not be provisionally dismissed except when it is with the express conformity of the accused. ATTY. FORTUN: That is correct, Your Honor. JUSTICE SALONGA: And with notice to the offended party. ATTY. FORTUN: That is correct, Your Honor. JUSTICE SALONGA:

Was there an express conformity on the part of the accused? ATTY. FORTUN: There was none, Your Honor. We were not asked to sign any order, or any statement, which would normally be required by the Court on pre-trial or on other matters, including other provisional dismissal. My very limited practice in criminal courts, Your Honor, had taught me that a judge must be very careful on this matter of provisional dismissal. In fact they ask the accused to come forward, and the judge himself or herself explains the implications of a provisional dismissal. Pumapayag ka ba dito. Puwede bang pumirma ka? JUSTICE ROSARIO: You were present during the proceedings? ATTY. FORTUN: Yes, Your Honor. JUSTICE ROSARIO: You represented the petitioner in this case? ATTY. FORTUN: That is correct, Your Honor. And there was nothing of that sort which the good Judge Agnir, who is most knowledgeable in criminal law, had done in respect of provisional dismissal or the matter of Mr. Lacson agreeing to the provisional dismissal of the case. JUSTICE GUERRERO: Now, you filed a motion, the other accused then filed a motion for a judicial determination of probable cause? ATTY. FORTUN: Yes, Your Honor. JUSTICE GUERRERO: Did you make any alternative prayer in your motion that if there is no probable cause what should the Court do? ATTY. FORTUN: That the arrest warrants only be withheld. That was the only prayer that we asked. In fact, I have a copy of that particular motion, and if I may read my prayer before the Court, it said: Wherefore, it is respectfully prayed that (1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be conducted, and for this purpose, an order be issued directing the prosecution to present the private complainants and their witnesses at the scheduled hearing for that purpose; and (2) the warrants for the arrest of the accused be withheld, or, if issued, recalled in the meantime until resolution of this incident. JUSTICE GUERRERO: There is no general prayer for any further relief? ATTY. FORTUN: There is but it simply says other equitable reliefs are prayed for. JUSTICE GUERRERO:

Dont you surmise Judge Agnir, now a member of this Court, precisely addressed your prayer for just and equitable relief to dismiss the case because what would be the net effect of a situation where there is no warrant of arrest being issued without dismissing the case? ATTY. FORTUN: Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is we did not agree to the provisional dismissal, neither were we asked to sign any assent to the provisional dismissal. JUSTICE GUERRERO: If you did not agree to the provisional dismissal did you not file any motion for reconsideration of the order of Judge Agnir that the case should be dismissed? ATTY. FORTUN: I did not, Your Honor, because I knew fully well at that time that my client had already been arraigned, and the arraignment was valid as far as I was concerned. So, the dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did not take any further step in addition to rocking the boat or clarifying the matter further because it probably could prejudice the interest of my client. JUSTICE GUERRERO: Continue.[20] In his memorandum in lieu of the oral argument filed with the Court of Appeals, the respondent declared in no uncertain terms that: Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without jurisdiction over the cases. The records were remanded to the QC RTC: Upon raffle, the case was assigned to Branch 81. Petitioner and the others promptly filed a motion for judicial determination of probable cause (Annex B). He asked that warrants for his arrest not be issued. He did not move for the dismissal of the Informations, contrary to respondent OSGs claim.[21] The respondents admissions made in the course of the proceedings in the Court of Appeals are binding and conclusive on him. The respondent is barred from repudiating his admissions absent evidence of palpable mistake in making such admissions. [22] To apply the new rule in Criminal Cases Nos. Q-99-81679 to Q-99-81689 would be to add to or make exceptions from the new rule which are not expressly or impliedly included therein. This the Court cannot and should not do.[23] The Court also agrees with the petitioners contention that no notice of any motion for the provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 or of the hearing thereon was served on the heirs of the victims at least three days before said hearing as mandated by Rule 15, Section 4 of the Rules of Court. It must be borne in mind that in crimes involving private interests, the new rule requires that the offended party or parties or the heirs of the victims must be given adequate a priori notice of any motion for the provisional dismissal of the criminal case. Such notice may be served on the offended party or the heirs of the victim through the private prosecutor, if there is one, or through the public prosecutor who in turn must relay the notice to the offended party or the heirs of the victim to enable them to confer with him before the hearing or appear in court during the hearing. The proof of such service must be shown during the hearing on the motion, otherwise, the requirement of the new rule will become illusory. Such notice will enable the offended party or the heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion on valid grounds,

including: (a) the collusion between the prosecution and the accused for the provisional dismissal of a criminal case thereby depriving the State of its right to due process; (b) attempts to make witnesses unavailable; or (c) the provisional dismissal of the case with the consequent release of the accused from detention would enable him to threaten and kill the offended party or the other prosecution witnesses or flee from Philippine jurisdiction, provide opportunity for the destruction or loss of the prosecutions physical and other evidence and prejudice the rights of the offended party to recover on the civil liability of the accused by his concealment or furtive disposition of his property or the consequent lifting of the writ of preliminary attachment against his property. In the case at bar, even if the respondents motion for a determination of probable cause and examination of witnesses may be considered for the nonce as his motion for a provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689, however, the heirs of the victims were not notified thereof prior to the hearing on said motion on March 22, 1999. It must be stressed that the respondent filed his motion only on March 17, 1999 and set it for hearing on March 22, 1999 or barely five days from the filing thereof. Although the public prosecutor was served with a copy of the motion, the records do not show that notices thereof were separately given to the heirs of the victims or that subpoenae were issued to and received by them, including those who executed their affidavits of desistance who were residents of Dipolog City or Pian, Zamboanga del Norte or Palompon, Leyte. [24] There is as well no proof in the records that the public prosecutor notified the heirs of the victims of said motion or of the hearing thereof on March 22, 1999. Although Atty. Valdez entered his appearance as private prosecutor,[25] he did so only for some but not all the close kins of the victims, namely, Nenita Alap-ap, Imelda Montero, Margarita Redillas, Rufino Siplon, Carmelita Elcamel, Myrna Abalora, and Leonora Amora who (except for Rufino Siplon) [26] executed their respective affidavits of desistance.[27] There was no appearance for the heirs of Alex Neri, Pacifico Montero, Jr., and Meleubren Sorronda. There is no proof on record that all the heirs of the victims were served with copies of the resolution of Judge Agnir, Jr. dismissing the said cases. In fine, there never was any attempt on the part of the trial court, the public prosecutor and/or the private prosecutor to notify all the heirs of the victims of the respondents motion and the hearing thereon and of the resolution of Judge Agnir, Jr. dismissing said cases. The said heirs were thus deprived of their right to be heard on the respondents motion and to protect their interests either in the trial court or in the appellate court. Since the conditions sine qua non for the application of the new rule were not present when Judge Agnir, Jr. issued his resolution, the State is not barred by the time limit set forth in the second paragraph of Section 8 of Rule 117 of the Revised Rules of Criminal Procedure. The State can thus revive or refile Criminal Cases Nos. Q-99-81679 to Q-99-81689 or file new Informations for multiple murder against the respondent. II. THE TIME-BAR IN SECTION 8, RULE 117 OF THE REVISED RULES OF CRIMINAL PROCEDURE SHOULD NOT BE APPLIED RETROACTIVELY. The petitioners contend that even on the assumption that the respondent expressly consented to a provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 and all the heirs of the victims were notified of the respondents motion before the hearing thereon and were served with copies of the resolution of Judge Agnir, Jr. dismissing the eleven cases, the two-year bar in Section 8 of Rule 117 of the Revised Rules of Criminal Procedure should be applied prospectively and not retroactively against the State. To apply the time limit retroactively to the criminal cases against the respondent and his co-accused would violate the right of the People to due process, and unduly impair, reduce, and diminish the States substantive right to prosecute the accused for multiple murder. They posit that under Article 90 of the Revised Penal Code, the State had twenty years within which to file the criminal complaints against the accused. However, under the new rule, the State only had two years from notice of the public prosecutor of the order of dismissal of Criminal Cases Nos. Q-99-81679

to Q-99-81689 within which to revive the said cases. When the new rule took effect on December 1, 2000, the State only had one year and three months within which to revive the cases or refile the Informations. The period for the State to charge respondent for multiple murder under Article 90 of the Revised Penal Code was considerably and arbitrarily reduced. They submit that in case of conflict between the Revised Penal Code and the new rule, the former should prevail. They also insist that the State had consistently relied on the prescriptive periods under Article 90 of the Revised Penal Code. It was not accorded a fair warning that it would forever be barred beyond the two-year period by a retroactive application of the new rule. [28] Petitioners thus pray to the Court to set aside its Resolution of May 28, 2002. For his part, the respondent asserts that the new rule under Section 8 of Rule 117 of the Revised Rules of Criminal Procedure may be applied retroactively since there is no substantive right of the State that may be impaired by its application to the criminal cases in question since [t]he States witnesses were ready, willing and able to provide their testimony but the prosecution failed to act on these cases until it became politically expedient in April 2001 for them to do so. [29] According to the respondent, penal laws, either procedural or substantive, may be retroactively applied so long as they favor the accused. [30] He asserts that the two-year period commenced to run on March 29, 1999 and lapsed two years thereafter was more than reasonable opportunity for the State to fairly indict him. [31] In any event, the State is given the right under the Courts assailed Resolution to justify the filing of the Information in Criminal Cases Nos. 01-101102 to 01-101112 beyond the time-bar under the new rule. The respondent insists that Section 8 of Rule 117 of the Revised Rules of Criminal Procedure does not broaden the substantive right of double jeopardy to the prejudice of the State because the prohibition against the revival of the cases within the one-year or two-year periods provided therein is a legal concept distinct from the prohibition against the revival of a provisionally dismissed case within the periods stated in Section 8 of Rule 117. Moreover, he claims that the effects of a provisional dismissal under said rule do not modify or negate the operation of the prescriptive period under Article 90 of the Revised Penal Code. Prescription under the Revised Penal Code simply becomes irrelevant upon the application of Section 8, Rule 117 because a complaint or information has already been filed against the accused, which filing tolls the running of the prescriptive period under Article 90. [32] The Court agrees with the respondent that the new rule is not a statute of limitations. Statutes of limitations are construed as acts of grace, and a surrender by the sovereign of its right to prosecute or of its right to prosecute at its discretion. Such statutes are considered as equivalent to acts of amnesty founded on the liberal theory that prosecutions should not be allowed to ferment endlessly in the files of the government to explode only after witnesses and proofs necessary for the protection of the accused have by sheer lapse of time passed beyond availability. [33] The periods fixed under such statutes are jurisdictional and are essential elements of the offenses covered. [34] On the other hand, the time-bar under Section 8 of Rule 117 is akin to a special procedural limitation qualifying the right of the State to prosecute making the time-bar an essence of the given right or as an inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to prosecute the accused.[35] The time-bar under the new rule does not reduce the periods under Article 90 of the Revised Penal Code, a substantive law.[36] It is but a limitation of the right of the State to revive a criminal case against the accused after the Information had been filed but subsequently provisionally dismissed with the express consent of the accused. Upon the lapse of the timeline under the new rule, the State is presumed, albeit disputably, to have abandoned or waived its right to revive the case and prosecute the accused. The dismissal becomes ipso facto permanent. He can no longer be charged anew for the same crime or another crime necessarily included therein. [37] He is spared from the anguish and anxiety as well as the expenses in any new indictments. [38] The State may revive a criminal case beyond the

one-year or two-year periods provided that there is a justifiable necessity for the delay. [39] By the same token, if a criminal case is dismissed on motion of the accused because the trial is not concluded within the period therefor, the prescriptive periods under the Revised Penal Code are not thereby diminished. [40] But whether or not the prosecution of the accused is barred by the statute of limitations or by the lapse of the time-line under the new rule, the effect is basically the same. As the State Supreme Court of Illinois held: This, in effect, enacts that when the specified period shall have arrived, the right of the state to prosecute shall be gone, and the liability of the offender to be punishedto be deprived of his liberty shall cease. Its terms not only strike down the right of action which the state had acquired by the offense, but also remove the flaw which the crime had created in the offenders title to liberty. In this respect, its language goes deeper than statutes barring civil remedies usually do. They expressly take away only the remedy by suit, and that inferentially is held to abate the right which such remedy would enforce, and perfect the title which such remedy would invade; but this statute is aimed directly at the very right which the state has against the offenderthe right to punish, as the only liability which the offender has incurred, and declares that this right and this liability are at an end. [41] The Court agrees with the respondent that procedural laws may be applied retroactively. As applied to criminal law, procedural law provides or regulates the steps by which one who has committed a crime is to be punished. In Tan, Jr. v. Court of Appeals,[42] this Court held that: Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent. The fact that procedural statutes may somehow affect the litigants rights may not preclude their retroactive application to pending actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected. Nor is the retroactive application of procedural statutes constitutionally objectionable. The reason is that as a general rule no vested right may attach to, nor arise from, procedural laws. It has been held that a person has no vested right in any particular remedy, and a litigant cannot insist on the application to the trial of his case, whether civil or criminal, of any other than the existing rules of procedure. It further ruled therein that a procedural law may not be applied retroactively if to do so would work injustice or would involve intricate problems of due process or impair the independence of the Court. In a per curiam decision in Cipriano v. City of Houma,[43] the United States Supreme Court ruled that where a decision of the court would produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice of hardship by a holding of nonretroactivity. [44] A construction of which a statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, and injurious consequences. [45] This Court should not adopt an interpretation of a statute which produces absurd, unreasonable, unjust, or oppressive results if such interpretation could be avoided. [46] Time and again, this Court has decreed that statutes are to be construed in light of the purposes to be achieved and the evils sought to be remedied. In construing a statute, the reason for the enactment should be kept in mind and the statute should be construed with reference to the intended scope and purpose. [47] Remedial legislation, or procedural rule, or doctrine of the Court designed to enhance and implement the constitutional rights of parties in criminal proceedings may be applied retroactively or prospectively depending upon several factors, such as the history of the new rule, its purpose and effect, and whether the retrospective application will further its operation, the particular conduct sought to be remedied and the effect thereon in the administration of justice and of criminal laws in particular. [48] In a per curiam decision in Stefano v. Woods,[49] the United States Supreme Court catalogued the factors in determining whether a new rule or doctrine enunciated by the High Court should be given retrospective or prospective effect:

(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. In this case, the Court agrees with the petitioners that the time-bar of two years under the new rule should not be applied retroactively against the State. In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It took into account the substantial rights of both the State and of the accused to due process. The Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused and notice to the offended parties. The time-bar fixed by the Court must be respected unless it is shown that the period is manifestly short or insufficient that the rule becomes a denial of justice.[50] The petitioners failed to show a manifest shortness or insufficiency of the time-bar. The new rule was conceptualized by the Committee on the Revision of the Rules and approved by the Court en banc primarily to enhance the administration of the criminal justice system and the rights to due process of the State and the accused by eliminating the deleterious practice of trial courts of provisionally dismissing criminal cases on motion of either the prosecution or the accused or jointly, either with no time-bar for the revival thereof or with a specific or definite period for such revival by the public prosecutor. There were times when such criminal cases were no longer revived or refiled due to causes beyond the control of the public prosecutor or because of the indolence, apathy or the lackadaisical attitude of public prosecutors to the prejudice of the State and the accused despite the mandate to public prosecutors and trial judges to expedite criminal proceedings. [51] It is almost a universal experience that the accused welcomes delay as it usually operates in his favor, [52] especially if he greatly fears the consequences of his trial and conviction. He is hesitant to disturb the hushed inaction by which dominant cases have been known to expire. [53] The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of the State to prove its case with the disappearance or nonavailability of its witnesses. Physical evidence may have been lost. Memories of witnesses may have grown dim or have faded. Passage of time makes proof of any fact more difficult. [54] The accused may become a fugitive from justice or commit another crime. The longer the lapse of time from the dismissal of the case to the revival thereof, the more difficult it is to prove the crime. On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a criminal case. The possibility that the case may be revived at any time may disrupt or reduce, if not derail, the chances of the accused for employment, curtail his association, subject him to public obloquy and create anxiety in him and his family. He is unable to lead a normal life because of community suspicion and his own anxiety. He continues to suffer those penalties and disabilities incompatible with the presumption of innocence. [55] He may also lose his witnesses or their memories may fade with the passage of time. In the long run, it may diminish his capacity to defend himself and thus eschew the fairness of the entire criminal justice system. [56] The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the criminal justice system for the benefit of the State and the accused ; not for the accused only.

The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year period commenced to run on March 31, 1999 when the public prosecutor received his copy of the resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the new rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the Court applied the new time-bar retroactively, the State would have only one year and three months or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-year period fixed under the new rule. On the other hand, if the time limit is applied prospectively, the State would have two years from December 1, 2000 or until December 1, 2002 within which to revive the cases. This is in consonance with the intendment of the new rule in fixing the time-bar and thus prevent injustice to the State and avoid absurd, unreasonable, oppressive, injurious, and wrongful results in the administration of justice. The period from April 1, 1999 to November 30, 1999 should be excluded in the computation of the two-year period because the rule prescribing it was not yet in effect at the time and the State could not be expected to comply with the time-bar. It cannot even be argued that the State waived its right to revive the criminal cases against respondent or that it was negligent for not reviving them within the two-year period under the new rule. As the United States Supreme Court said, per Justice Felix Frankfurter, in Griffin v. People:[57] We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights . The two-year period fixed in the new rule is for the benefit of both the State and the accused. It should not be emasculated and reduced by an inordinate retroactive application of the time-bar therein provided merely to benefit the accused. For to do so would cause an injustice of hardship to the State and adversely affect the administration of justice in general and of criminal laws in particular. To require the State to give a valid justification as a condition sine qua non to the revival of a case provisionally dismissed with the express consent of the accused before the effective date of the new rule is to assume that the State is obliged to comply with the time-bar under the new rule before it took effect. This would be a rank denial of justice. The State must be given a period of one year or two years as the case may be from December 1, 2000 to revive the criminal case without requiring the State to make a valid justification for not reviving the case before the effective date of the new rule. Although in criminal cases, the accused is entitled to justice and fairness, so is the State. As the United States Supreme Court said, per Mr. Justice Benjamin Cardozo, in Snyder v. State of Massachussetts,[58] the concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. In Dimatulac v. Villon,[59] this Court emphasized that the judges action must not impair the substantial rights of the accused nor the right of the State and offended party to due process of law. This Court further said: Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone. The interests of society and the offended parties which have been wronged must be equally considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice, for, to the society offended and the party wronged, it could also mean injustice. Justice then must be rendered even-handedly to both the accused, on one hand, and the State and offended party, on the other. In this case, the eleven Informations in Criminal Cases Nos. 01-101102 to 01-101112 were filed with the Regional Trial Court on June 6, 2001 well within the two-year period. In sum, this Court finds the motion for reconsideration of petitioners meritorious.

IN THE LIGHT OF ALL THE FOREGOING, the petitioners Motion for Reconsideration is GRANTED. The Resolution of this Court, dated May 28, 2002, is SET ASIDE. The Decision of the Court of Appeals, dated August 24, 2001, in CA-G.R. SP No. 65034 is REVERSED. The Petition of the Respondent with the Regional Trial Court in Civil Case No. 01-100933 is DISMISSED for being moot and academic. The Regional Trial Court of Quezon City, Branch 81, is DIRECTED to forthwith proceed with Criminal Cases Nos. 01-101102 to 01-101112 with deliberate dispatch. No pronouncements as to costs. SO ORDERED. Davide, Jr., C.J., Mendoza, Panganiban, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur. Bellosillo, J., see separate opinion, concurring. Puno, J., please see dissent. Vitug, J., see separate (dissenting) opinion. Quisumbing, J., in the result, concur with J. Bellosillos opinion. Ynares-Santiago, J., join the dissent of J. Puno and J. Gutierrez. Sandoval-Gutierrez, J., dissent. Please see dissenting opinion. Carpio, J., no part.

[1] [2] [3] [4] [5]

Rollo, Vol. II, pp. 1203-1228. Id. at 1183-1200. NBI Report, pp. 309 and 311. Rollo, Vol. II, pp. 1237-1267.

Regalado, Remedial Law Compendium, Vol. II, 9th Revised Edition, p. 442; People v. Bellosillo, 9 SCRA 835 (1963).
[6] [7] [8] [9]

Section 5, Rule 112 of the Revised Rules of Criminal Procedure. People v. Hon. Vergara, 221 SCRA 561 (1993). People v. Hinaut, 105 Phil. 303 (1959).

Pendatum v. Aragon, 93 Phil. 798 (1953); Caes v. Intermediate Appellate Court, 179 SCRA 54 (1989).
[10] [11] [12] [13] [14]

People v. Ylagan, 58 Phil. 851 (1933). Baesa v. Provincial Fiscal of Camarines Sur, 37 SCRA 437 (1971). Rule 117, Section 3(i) of the Revised Rules of Criminal Procedure. Benes v. United States of America, 276 F.2d 99 (1960).

Sy v. Court of Appeals, 113 SCRA 335 (1982); Lava v. Gonzales, 11 SCRA 650 (1964); Bandiala v. CFI of Misamis Occidental, 35 SCRA 237 (1970); Luciano v. Mariano, 40 SCRA 187 (1971); Teehankee v. Madayag, 207 SCRA 134 (1992).

SECTION 1. Preliminary investigation defined; when required. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.
[15]

Except as provided in Section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine. (Section 1, Rule 112, 2000 Rules of Criminal Procedure).
[16] [17] [18] [19] [20] [21] [22] [23] [24]

Bandiala v. Court, supra. 232 SCRA 192 (1994). RTC Records, Vol. 10, p. 232. CA Rollo, p. 355. TSN, CA-G.R. SP No. 65034, July 31, 2001, pp. 13-18 (emphasis ours). CA Rollo, p. 378 (emphasis by respondent). Section 4, Rule 129 of the Revised Rules on Evidence. Vari v. Food Fair Stores, 13 A.L.R.3d 844 (1964). Victims Address (per Medico Legal Report) Pian, Zamboanga del Norte Miputak, Dipolog City Miputak, Dipolog City Miputak, Dipolog City Osmina St., Dipolog City Pian, Zamboanga del Norte Bgy. Barra, Dipolog City Pian, Zamboanga del Norte Bo. Tinago, Palumpon, Leyte Miputak, Dipolog City No address

Manuel Montero Rolando Siplon Sherwin Abalora Ray Abalora Joel Amora Jevy Redillas Welbor Elcamel Carlito Alap-ap Pacifico Montero, Jr. Meleubren Sorronda Alex Neri (Unidentified Male in Medico Legal Report)
[25] [26] [27]

RTC Records, Vol. IX, p. 9. Rufino Siplon did not affix his signature on the Joint Affidavit of Desistance. Affiants Address (per Affidavit of Desistance) UST Abono Estaca, Dipolog City

Myra Abalora (Mother of Sherwin Abalora and Ray Abalora)

Leonora Amora (Mother of Joel Amora) Nenita Alap-ap (Wife of Carlito Alap-ap) Imelda Montero (Wife of Manuel Montero) Carmelita Elcamel (Wife of Welbor Elcamel) Margarita Redillas (Mother of Jevy Redillas)
[28] [29] [30] [31] [32] [33] [34] [35]

Bgy. Sentral, Dipolog City 338 Sagin St. cor. Amaga St., Poblacio Santa, Pian, Zamboanga del Norte Poblacion Norte, Pian, Zamboanga del Norte Upper Dicayas, Dipolog City Bgy. Poblacion South, Pian, Zamboanga del Norte

Rollo, Vol. 2, pp. 1205-1214. Id. at 1240. Id. at 1241-1247. Id. Id. at 1250-1251. 22 C.J.S., Criminal Law, 223, p. 574; United States v. Eliopoulos, 45 F. Supp. 777 (1942). People v. Allen, 118 P.2d 927, 47 C.A.2d. 735. Carpenter v. Cox, 182 So. 813 (1939).

[36] ART.

90. Prescription of crime.Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years. Crimes punishable by other afflictive penalties shall prescribe in fifteen years. Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in five years. The crime of libel or other similar offenses shall prescribe in one year. The offenses of oral defamation and slander by deed shall prescribe in six months. Light offenses prescribe in two months. When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second, and third paragraph of this article.
[37] [38] [39] [40] [41] [42] [43]

People v. Allen, 14 NE2d 397; State v. Crawford, 98 SE 615. Republic v. Agoncillo, 40 SCRA 579 (1971). State of Kansas v. Ransom, 39 ALR 4th 892. 22 C.J.S., supra. at 575, citing People v. Di Franco, 184 N.Y.S.2d, p. 974, 17 Misc.2d 177. People v. Ross, 156 N.E. 303 (1927). G.R. No. 136368, January 16, 2002, p. 13. 395 U.S. 701 (1969).

[44] [45] [46] [47] [48] [49] [50] [51] [52] [53] [54] [55] [56] [57] [58] [59]

Id. Ursua v. Court of Appeals, 256 SCRA 147 (1996). City and County of Denver v. Holmes, 400 P.2d 1 (1965). Paat v. Court of Appeals, 266 SCRA 167 (1997). Linkletter v. Victor Walker, 381 U.S. 618 (1965). 393 U.S. 630 (1968). Glen Livestock Company v. Colwell, 185 U.S. 54 (1902). United States v. Mann, 201 F. Supp. 208 (1968); Barker v. Wingo, 407 U.S. 514 (1972). United States v. Fay, 313 F.2d 620 (1963). United States v. Mann, supra. Dickey v. State of Florida, 398 U.S. 30 (1970). Ibid. Barker v. Winggo, supra. 351 U.S. 12 (1956). 291 U.S. 97 (1933). 297 SCRA 679 (1998).