FIRST DIVISION

[G.R. No. 47800. December 2, 1940.]

MAXIMO CALALANG, Petitioner, v. A. D. WILLIAMS, ET AL., Respondents.

Maximo Calalang in his own behalf.

Solicitor General Ozaeta and Assistant Solicitor General Amparo for respondents Williams,
Fragante and Bayan

City Fiscal Mabanag for the other respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT No. 648; DELEGATION OF

LEGISLATIVE POWER; AUTHORITY OF DIRECTOR OF PUBLIC WORKS AND SECRETARY OF PUBLIC WORKS
AND COMMUNICATIONS TO PROMULGATE RULES AND REGULATIONS. — The provisions of section 1 of
Commonwealth Act No. 648 do not confer legislative power upon the Director of Public Works and the
Secretary of Public Works and Communications. The authority therein conferred upon them and under which
they promulgated the rules and regulations now complained of is not to determine what public policy
demands but merely to carry out the legislative policy laid down by the National Assembly in said Act, to wit,
"to promote safe transit upon, and avoid obstructions on, roads and streets designated as national roads by
acts of the National Assembly or by executive orders of the President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the condition of the road or the traffic thereon makes
such action necessary or advisable in the public convenience and interest." The delegated power, if at all,
therefore, is not the determination of what the law shall be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be predicated. To promulgate rules and
regulations on the use of national roads and to determine when and how long a national road should be
closed to traffic, in view of the condition of the road or the traffic thereon and the requirements of public
convenience and interest, is an administrative function which cannot be directly discharged by the National
Assembly. It must depend on the discretion of some other government official to whom is confided the duty
of determining whether the proper occasion exists for executing the law. But it cannot be said that the
exercise of such discretion is the making of the law.

2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL AUTHORITY. — Commonwealth Act No.
548 was passed by the National Assembly in the exercise of the paramount police power of the state. Said
Act, by virtue of which the rules and regulations complained of were promulgated, aims to promote safe
transit upon and avoid obstructions on national roads, in the interest and convenience of the public. In
enacting said law, therefore, the National Assembly was prompted by considerations of public convenience
and welfare. It was inspired by a desire to relieve congestion of traffic, which is, to say the least, a menace
to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order
to promote the general welfare may interfere with personal liberty, with property, and with business and
occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to
secure the general comfort, health, and prosperity of the state (U.S. v. Gomer Jesus, 31 Phil., 218). To this
fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing
without which life is a misery, but liberty should not be made to prevail over authority because then society
will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual
will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind
through education and, personal discipline, so that there may be established the resultant equilibrium, which
means peace and order and happiness for all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the residuum of liberty which resides in the people. The
paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its
preservation.

3. ID.; ID.; SOCIAL JUSTICE. — Social justice is "neither communism, nor despotism, nor atomism, nor
anarchy," but the humanization of laws and the equalization of social and economic forces by the State so
that justice in its rational and objectively secular conception may at least be approximated. Social justice
means the promotion of the welfare of all the people, the adoption by the Government of measures
calculated to insure economic stability of all the competent elements of society, through the maintenance of
a proper economic and social equilibrium in the interrelations of the members of the community,
constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the
exercise of powers underlying the existence of all governments on the time-honored principle of salus populi
est suprema lex. Social justice, therefore, must be founded on the recognition of the necessity of
interdependence among divers and diverse units of a society and of the protection that should be equally
and evenly extended to all groups as a combined force in our social and economic life, consistent with the
fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all
persons, and of bringing about "the greatest good to the greatest number."

DECISION

LAUREL, J.:

Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila, brought before this court
this petition for a writ of prohibition against the respondents, A. D. Williams, as Chairman of the National
Traffic Commission; Vicente Fragante, as Director of Public Works; Sergio Bayan, as Acting Secretary of
Public Works and Communications; Eulogio Rodriguez, as Mayor of the City of Manila; and Juan Dominguez,
as Acting Chief of Police of Manila.

It is alleged in the petition that the National Traffic Commission, in its resolution of July 17, 1940, resolved
to recommend to the Director of Public Works and to the Secretary of Public Works and Communications
that animal-drawn vehicles be prohibited from passing along Rosario Street extending from Plaza Calderon
de la Barca to Dasmariñas Street, from 7:30 a.m. to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and
along Rizal Avenue extending from the railroad crossing at Antipolo Street to Echague Street, from 7 a.m. to
11 p.m., from a period of one year from the date of the opening of the Colgante Bridge to traffic; that the
Chairman of the National Traffic Commission, on July 18, 1940 recommended to the Director of Public Works
the adoption of the measure proposed in the resolution aforementioned, in pursuance of the provisions of
Commonwealth Act No. 548 which authorizes said Director of Public Works, with the approval of the
Secretary of Public Works and Communications, to promulgate rules and regulations to regulate and control
the use of and traffic on national roads; that on August 2, 1940, the Director of Public Works, in his first
indorsement to the Secretary of Public Works and Communications, recommended to the latter the approval
of the recommendation made by the Chairman of the National Traffic Commission as aforesaid, with the
modification that the closing of Rizal Avenue to traffic to animal-drawn vehicles be limited to the portion
thereof extending from the railroad crossing at Antipolo Street to Azcarraga Street; that on August 10,
1940, the Secretary of Public Works and Communications, in his second indorsement addressed to the
Director of Public Works, approved the recommendation of the latter that Rosario Street and Rizal Avenue
be closed to traffic of animal-drawn vehicles, between the points and during the hours as above indicated,
for a period of one year from the date of the opening of the Colgante Bridge to traffic; that the Mayor of
Manila and the Acting Chief of Police of Manila have enforced and caused to be enforced the rules and
regulations thus adopted; that as a consequence of such enforcement, all animal-drawn vehicles are not
allowed to pass and pick up passengers in the places above-mentioned to the detriment not only of their
owners but of the riding public as well.

It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of Public Works,
with the approval of the Secretary of Public Works and Communications, is authorized to promulgate rules
and regulations for the regulation and control of the use of and traffic on national roads and streets is
unconstitutional because it constitutes an undue delegation of legislative power. This contention is
untenable. As was observed by this court in Rubi v. Provincial Board of Mindoro (39 Phil, 660, 700), "The
rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since
followed in a multitude of cases, namely: ’The true distinction therefore is between the delegation of power
to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done;
to the latter no valid objection can be made.’ (Cincinnati, W. & Z. R. Co. v. Comm’rs. Clinton County, 1 Ohio
St., 88.) Discretion, as held by Chief Justice Marshall in Wayman v. Southard (10 Wheat., 1) may be
committed by the Legislature to an executive department or official. The Legislature may make decisions of
executive departments or subordinate officials thereof, to whom it has committed the execution of certain
acts, final on questions of fact. (U.S. v. Kinkead, 248 Fed., 141.) The growing tendency in the decisions is to
give prominence to the ’necessity’ of the case."cralaw virtua1aw l ibra ry

Section 1 of Commonwealth Act No. 548 reads as follows: jgc:chan roble s.com.p h
"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets designated as
national roads by acts of the National Assembly or by executive orders of the President of the Philippines,
the Director of Public Works, with the approval of the Secretary of Public Works and Communications, shall
promulgate the necessary rules and regulations to regulate and control the use of and traffic on such roads
and streets. Such rules and regulations, with the approval of the President, may contain provisions
controlling or regulating the construction of buildings or other structures within a reasonable distance from
along the national roads. Such roads may be temporarily closed to any or all classes of traffic by the Director
of Public Works and his duly authorized representatives whenever the condition of the road or the traffic
thereon makes such action necessary or advisable in the public convenience and interest, or for a specified
period, with the approval of the Secretary of Public Works and Communications." cralaw virt ua1aw li bra ry

The above provisions of law do not confer legislative power upon the Director of Public Works and the
Secretary of Public Works and Communications. The authority therein conferred upon them and under which
they promulgated the rules and regulations now complained of is not to determine what public policy
demands but merely to carry out the legislative policy laid down by the National Assembly in said Act, to wit,
"to promote safe transit upon and avoid obstructions on, roads and streets designated as national roads by
acts of the National Assembly or by executive orders of the President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the condition of the road or the traffic makes such
action necessary or advisable in the public convenience and interest." The delegated power, if at all,
therefore, is not the determination of what the law shall be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be predicated. To promulgate rules and
regulations on the use of national roads and to determine when and how long a national road should be
closed to traffic, in view of the condition of the road or the traffic thereon and the requirements of public
convenience and interest, is an administrative function which cannot be directly discharged by the National
Assembly. It must depend on the discretion of some other government official to whom is confided the duty
of determining whether the proper occasion exists for executing the law. But it cannot be said that the
exercise of such discretion is the making of the law. As was said in Locke’s Appeal (72 Pa. 491): "To assert
that a law is less than a law, because it is made to depend on a future event or act, is to rob the Legislature
of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not
yet developed, or to things future and impossible to fully know." The proper distinction the court said was
this: "The Legislature cannot delegate its power to make the law; but it can make a law to delegate a power
to determine some fact or state of things upon which the law makes, or intends to make, its own action
depend. To deny this would be to stop the wheels of government. There are many things upon which wise
and useful legislation must depend which cannot be known to the law-making power, and, must, therefore,
be a subject of inquiry and determination outside of the halls of legislation." (Field v. Clark, 143 U. S. 649,
694; 36 L. Ed. 294.)

In the case of People v. Rosenthal and Osmeña, G.R. Nos. 46076 and 46077, promulgated June 12, 1939,
and in Pangasinan Transportation v. The Public Service Commission, G.R. No. 47065, promulgated June 26,
1940, this Court had occasion to observe that the principle of separation of powers has been made to adapt
itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the
principle of "subordinate legislation," not only in the United States and England but in practically all modern
governments. Accordingly, with the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the laws, the rigidity of the theory of
separation of governmental powers has, to a large extent, been relaxed by permitting the delegation of
greater powers by the legislative and vesting a larger amount of discretion in administrative and executive
officials, not only in the execution of the laws, but also in the promulgation of certain rules and regulations
calculated to promote public interest.

The petitioner further contends that the rules and regulations promulgated by the respondents pursuant to
the provisions of Commonwealth Act No. 548 constitute an unlawful interference with legitimate business or
trade and abridge the right to personal liberty and freedom of locomotion. Commonwealth Act No. 548 was
passed by the National Assembly in the exercise of the paramount police power of the state.

Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to promote
safe transit upon and avoid obstructions on national roads, in the interest and convenience of the public. In
enacting said law, therefore, the National Assembly was prompted by considerations of public convenience
and welfare. It was inspired by a desire to relieve congestion of traffic. which is, to say the least, a menace
to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order
to promote the general welfare may interfere with personal liberty, with property, and with business and
occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to
secure the general comfort, health, and prosperity of the state (U.S. v. Gomez Jesus, 31 Phil., 218). To this
fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing
without which life is a misery, but liberty should not be made to prevail over authority because then society
will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual
will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind
through education and personal discipline, so that there may be established the resultant equilibrium, which
means peace and order and happiness for all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the residuum of liberty which resides in the people. The
paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its
preservation.

The scope of police power keeps expanding as civilization advances. As was said in the case of Dobbins v.
Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to exercise the police power is a continuing one,
and a business lawful today may in the future, because of the changed situation, the growth of population or
other causes, become a menace to the public health and welfare, and be required to yield to the public
good." And in People v. Pomar (46 Phil., 440), it was observed that "advancing civilization is bringing within
the police power of the state today things which were not thought of as being within such power yesterday.
The development of civilization, the rapidly increasing population, the growth of public opinion, with an
increasing desire on the part of the masses and of the government to look after and care for the interests of
the individuals of the state, have brought within the police power many questions for regulation which
formerly were not so considered." cralaw vi rtua 1aw lib rary

The petitioner finally avers that the rules and regulations complained of infringe upon the constitutional
precept regarding the promotion of social justice to insure the well-being and economic security of all the
people. The promotion of social justice, however, is to be achieved not through a mistaken sympathy
towards any given group. Social justice is "neither communism, nor despotism, nor atomism, nor anarchy,"
but the humanization of laws and the equalization of social and economic forces by the State so that justice
in its rational and objectively secular conception may at least be approximated. Social justice means the
promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure
economic stability of all the competent elements of society, through the maintenance of a proper economic
and social equilibrium in the interrelations of the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying
the existence of all governments on the time-honored principle of salus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence among
divers and diverse units of a society and of the protection that should be equally and evenly extended to all
groups as a combined force in our social and economic life, consistent with the fundamental and paramount
objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the
greatest good to the greatest number." cralaw virt ua1aw lib rary

In view of the foregoing, the writ of prohibition prayed for is hereby denied, with costs against the
petitioner. So ordered.

Scott vs. Sanford

Facts of the case

Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state)
and in an area of the Louisiana Territory, where slavery was forbidden by the Missouri
Compromise of 1820. After returning to Missouri, Scott sued unsuccessfully in the Missouri
courts for his freedom, claiming that his residence in free territory made him a free man.
Scott then brought a new suit in federal court. Scott's master maintained that no pure-
blooded Negro of African descent and the descendant of slaves could be a citizen in the
sense of Article III of the Constitution.
 Question
Was Dred Scott free or slave?

Dred Scott was a slave. Under Articles III and IV, argued Taney, no one but a citizen of the
United States could be a citizen of a state, and that only Congress could confer national
citizenship. Taney reached the conclusion that no person descended from an American
slave had ever been a citizen for Article III purposes. The Court then held the Missouri
Compromise unconstitutional, hoping to end the slavery question once and for all.

(Note: While the Supreme Court's official recording of the case name spells the
respondent's name as "Sandford," his name was actually "Sanford." Therefore, we have
reflected both the Court's documentation and the correct spelling as accurately as
possible.)

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14078 March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs,

vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.

D. R. Williams & Filemon Sotto for plaintiff.

Office of the Solicitor-General Paredes for defendant.

MALCOLM, J.:

In one of the cases which denote a landmark in American Constitutional History

(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of American
jurisprudence, began his opinion (relating to the status of an Indian) with words which, with a slight
change in phraseology, can be made to introduce the present opinion — This cause, in every point
of view in which it can be placed, is of the deepest interest. The legislative power of state, the
controlling power of the constitution and laws, the rights if they have any, the political existence of a
people, the personal liberty of a citizen, are all involved in the subject now to be considered.

To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to
introduce the facts and the issues, next to give a history of the so called "non-Christians," next to
compare the status of the "non-Christians" with that of the American Indians, and, lastly, to resolve
the constitutional questions presented.

I. INTRODUCTION.
This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of
Mindoro. It is alleged that the Maguianes are being illegally deprived of their liberty by the provincial
officials of that province. Rubi and his companions are said to be held on the reservation established
at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the
provincial sheriff in the prison at Calapan for having run away form the reservation.

The return of the Solicitor-General alleges:

1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25
which is as follows:

The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:

"Whereas several attempts and schemes have been made for the advancement of
the non-Christian people of Mindoro, which were all a failure,

"Whereas it has been found out and proved that unless some other measure is taken
for the Mangyan work of this province, no successful result will be obtained toward
educating these people.

"Whereas it is deemed necessary to obliged them to live in one place in order to

make a permanent settlement,

"Whereas the provincial governor of any province in which non-Christian inhabitants

are found is authorized, when such a course is deemed necessary in the interest of
law and order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him and approved by the provincial board.

"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake
Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it

"Resolved, that under section 2077 of the Administrative Code, 800 hectares of public land in
the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of
Mangyanes in Mindoro subject to the approval of the Honorable Secretary of the Interior, and

"Resolved further, That Mangyans may only solicit homesteads on this reservation providing
that said homestead applications are previously recommended by the provincial governor."

2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro was approved
by the Secretary of the Interior of February 21, 1917.

3. That on December 4, 1917, the provincial governor of Mindoro issued executive order No.
2 which says:

"Whereas the provincial board, by Resolution No. 25, current series, has selected a
site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes
in Mindoro.

"Whereas said resolution has been duly approve by the Honorable, the Secretary of
the Interior, on February 21, 1917.
 "Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the
provisions of section 2145 of the revised Administrative Code, do hereby direct that
all the Mangyans in the townships of Naujan and Pola and the Mangyans east of the
Baco River including those in the districts of Dulangan and Rubi's place in Calapan,
to take up their habitation on the site of Tigbao, Naujan Lake, not later than
December 31, 1917.

"Any Mangyan who shall refuse to comply with this order shall upon conviction be
imprisoned not exceed in sixty days, in accordance with section 2759 of the revised
Administrative Code."

4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the
executive order of the governor of the same province copied in paragraph 3, were necessary
measures for the protection of the Mangyanes of Mindoro as well as the protection of public
forests in which they roam, and to introduce civilized customs among them.

5. That Rubi and those living in his rancheria have not fixed their dwelling within the
reservation of Tigbao and are liable to be punished in accordance with section 2759 of Act
No. 2711.

6. That the undersigned has not information that Doroteo Dabalos is being detained by the
sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of articles Nos.
2145 and 2759 of Act No. 2711.

It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the
Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake Naujan,
selected by the provincial governor and approved by the provincial board. The action was taken in
accordance with section 2145 of the Administrative Code of 1917, and was duly approved by the
Secretary of the Interior as required by said action. Petitioners, however, challenge the validity of this
section of the Administrative Code. This, therefore, becomes the paramount question which the
court is called upon the decide.

Section 2145 of the Administrative Code of 1917 reads as follows:

SEC. 2145. Establishment of non-Christina upon sites selected by provincial governor. —

With the prior approval of the Department Head, the provincial governor of any province in
which non-Christian inhabitants are found is authorized, when such a course is deemed
necessary in the interest of law and order, to direct such inhabitants to take up their
habitation on sites on unoccupied public lands to be selected by him an approved by the
provincial board.

In connection with the above-quoted provisions, there should be noted section 2759 of the same
Code, which read as follows:

SEC. 2759. Refusal of a non-Christian to take up appointed habitation. — Any non-Christian

who shall refuse to comply with the directions lawfully given by a provincial governor,
pursuant to section two thousand one hundred and forty-five of this Code, to take up
habitation upon a site designated by said governor shall upon conviction be imprisonment for
a period not exceeding sixty days.

The substance of what is now found in said section 2145 is not new to Philippine law. The
genealogical tree of this section, if we may be permitted to use such terminology, would read:
Section 2077, Administrative Code of 1916; section 62, Act No. 1397; section 2 of various special
provincial laws, notably of Act No. 547, specifically relating to the Manguianes; section 69, Act No.
387.

Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later
be disclosed, is also found in varying forms in other laws of the Philippine Islands. In order to put the
phrase in its proper category, and in order to understand the policy of the Government of the
Philippine Islands with reference to the uncivilized elements of the Islands, it is well first of all to set
down a skeleton history of the attitude assumed by the authorities towards these "non-Christians,"
with particular regard for the legislation on the subject.

II. HISTORY.

A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

The most important of the laws of the Indies having reference to the subject at hand are compiled in
Book VI, Title III, in the following language.

LAW I.

The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551. Philip II
at Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the
Escorial on November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo,
on May 20, 1578,

THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).

In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical
law, and in order that they may forget the blunders of their ancient rites and ceremonies to
the end that they may live in harmony and in a civilized manner, it has always been
endeavored, with great care and special attention, to use all the means most convenient to
the attainment of these purposes. To carry out this work with success, our Council of the
Indies and other religious persons met at various times; the prelates of new Spain
assembled by order of Emperor Charles V of glorious memory in the year one thousand five
hundred and forty-six — all of which meetings were actuated with a desire to serve God an
our Kingdom. At these meetings it was resolved that indios be made to live in communities,
and not to live in places divided and separated from one another by sierras and mountains,
wherein they are deprived of all spiritual and temporal benefits and wherein they cannot
profit from the aid of our ministers and from that which gives rise to those human necessities
which men are obliged to give one another. Having realized that convenience of this
resolution, our kings, our predecessors, by different orders, have entrusted and ordered the
viceroys, presidents, and governors to execute with great care and moderation the
concentration of the indios into reducciones; and to deal with their doctrine with such
forbearance and gentleness, without causing inconveniences, so that those who would not
presently settle and who would see the good treatment and the protection of those already in
settlements would, of their own accord, present themselves, and it is ordained that they be
not required to pay taxes more than what is ordered. Because the above has been executed
in the greater part of our Indies, we hereby order and decree that the same be complied with
in all the remaining parts of the Indies, and the encomederos shall entreat compliance
thereof in the manner and form prescribed by the laws of this title.

xxx xxx xxx

 LAW VIII.

Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.

THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW.

The places wherein the pueblos and reducciones shall be formed should have the facilities of
waters. lands, and mountains, ingress and egress, husbandry and passageway of one
league long, wherein the indios can have their live stock that they may not be mixed with
those of the Spaniards.

LAW IX.

Philip II at Toledo, on February 19, 1956.

THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS PREVIOUSLY

HELD BY THEM.

With more good-will and promptness, the indios shall be concentrated in reducciones.
Provided they shall not be deprived of the lands and granaries which they may have in the
places left by them. We hereby order that no change shall be made in this respect, and that
they be allowed to retain the lands held by them previously so that they may cultivate them
and profit therefrom.

xxx xxx xxx

LAW XIII.

THE SAME AS ABOVE.

THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY,
OR COURT.

No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to
remove thepueblos or the reducciones once constituted and founded, without our express
order or that of the viceroy, president, or the royal district court, provided, however, that
the encomenderos, priests, or indios request such a change or consent to it by offering or
giving information to that en. And, because these claims are often made for private interests
and not for those of the indios, we hereby order that this law be always complied with,
otherwise the change will be considered fraudulently obtained. The penalty of one thousand
pesos shall be imposed upon the judge or encomendero who should violate this law.

LAW XV.

Philip III at Madrid, on October 10, 1618.

THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE

"INDIOS."

We order that in each town and reduccion there be a mayor, who should be an indio of the
same reduccion; if there be more than eighty houses, there should be two mayors and two
 aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be
more than two mayors and four aldermen, If there be less than eighty indios but not less than
forty, there should be not more than one mayor and one alderman, who should annually
elect nine others, in the presence of the priests , as is the practice in town inhabited by
Spaniards and indios.

LAW XXI.

Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581.
At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip IV, at
Madrid, on October 1 and December 17, 1646. For this law and the one following, see Law I,
Tit. 4, Book 7.

THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS, NEGROES,
"MESTIZOS," AND MULATTOES.

We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to live in
the reduccionesand towns and towns of the indios, because it has been found that some
Spaniards who deal, trade, live, and associate with the indios are men of troublesome
nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to avoid
the wrongs done them, the indios would leave their towns and provinces; and the
negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services,
contaminate them with their bad customs, idleness, and also some of their blunders and
vices which may corrupt and pervert the goal which we desire to reach with regard to their
salvation, increase, and tranquillity. We hereby order the imposition of grave penalties upon
the commission of the acts above-mentioned which should not be tolerated in the towns, and
that the viceroys, presidents, governors, and courts take great care in executing the law
within their powers and avail themselves of the cooperation of the ministers who are truly
honest. As regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are
children of indiasand born among them, and who are to inherit their houses and haciendas,
they all not be affected by this law, it appearing to be a harsh thing to separate them from
their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)

A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition
of the less advanced inhabitants of the Islands by concentrating them in "reducciones," is found in
the Decree of the Governor-General of the Philippine Islands of January 14, 1881, reading as
follows:

It is a legal principle as well as a national right that every inhabitant of a territory recognized
as an integral part of a nation should respect and obey the laws in force therein; while, on
other hand, it is the duty to conscience and to humanity for all governments to civilize those
backward races that might exist in the nation, and which living in the obscurity of ignorance,
lack of all the nations which enable them to grasp the moral and material advantages that
may be acquired in those towns under the protection and vigilance afforded them by the
same laws.

It is equally highly depressive to our national honor to tolerate any longer the separation and
isolation of the non-Christian races from the social life of the civilized and Christian towns; to
allow any longer the commission of depredations, precisely in the Island of Luzon wherein is
located the seat of the representative of the Government of the, metropolis.
It is but just to admit the fact that all the governments have occupied themselves with this
most important question, and that much has been heretofore accomplished with the help and
self-denial of the missionary fathers who have even sacrificed their lives to the end that those
degenerate races might be brought to the principles of Christianity, but the means and the
preaching employed to allure them have been insufficient to complete the work undertaken.
Neither have the punishments imposed been sufficient in certain cases and in those which
have not been guarded against, thus giving and customs of isolation.

As it is impossible to consent to the continuation of such a lamentable state of things, taking

into account the prestige which the country demands and the inevitable duty which every
government has in enforcing respect and obedience to the national laws on the part of all
who reside within the territory under its control, I have proceeded in the premises by giving
the most careful study of this serious question which involves important interests for
civilization, from the moral and material as well as the political standpoints. After hearing the
illustrious opinions of all the local authorities, ecclesiastics, and missionaries of the provinces
of Northern Luzon, and also after finding the unanimous conformity of the meeting held with
the Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the
orders of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the
meeting of the Council of Authorities, held for the object so indicated, I have arrived at an
intimate conviction of the inevitable necessity of proceeding in a practical manner for the
submission of the said pagan and isolated races, as well as of the manner and the only form
of accomplishing such a task.

For the reasons above stated and for the purpose of carrying out these objects, I hereby
promulgate the following:

DECREE.

1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date, to be
governed by the common law, save those exceptions prescribed in this decree which are
bases upon the differences of instructions, of the customs, and of the necessities of the
different pagan races which occupy a part of its territory.

2. The diverse rules which should be promulgated for each of these races — which may be
divided into three classes; one, which comprises those which live isolated and roaming about
without forming a town nor a home; another, made up of those subdued pagans who have
not as yet entered completely the social life; and the third, of those mountain and rebellious
pagans — shall be published in their respective dialects, and the officials, priests, and
missionaries of the provinces wherein they are found are hereby entrusted in the work of
having these races learn these rules. These rules shall have executive character, beginning
with the first day of next April, and, as to their compliance, they must be observed in the
manner prescribed below.

3. The provincial authorities in conjunction with the priests shall proceed, from now on, with
all the means which their zeal may suggest to them, to the taking of the census of the
inhabitants of the towns or settlement already subdued, and shall adopt the necessary
regulations for the appointment of local authorities, if there be none as yet; for the
construction of courts and schools, and for the opening or fixing up of means of
communication, endeavoring, as regards the administrative organization of the said towns or
settlements, that this be finished before the first day of next July, so that at the beginning of
the fiscal year they shall have the same rights and obligations which affect the remaining
towns of the archipelago, with the only exception that in the first two years they shall not be
obliged to render personal services other than those previously indicated.

4. So long as these subdued towns or settlements are located infertile lands appropriate for
cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses; and
only in case of absolute necessity shall a new residence be fixed for them, choosing for this
purpose the place most convenient for them and which prejudices the least their interest;
and, in either of these cases, an effort must be made to establish their homes with the reach
of the sound of the bell.

5. For the protection and defense of these new towns, there shall be established an armed
force composed precisely of native Christian, the organization and service of which shall be
determined in a regulations based upon that of the abolished Tercios de Policia (division of
the Guardia Civil).

6. The authorities shall see to it that the inhabitants of the new towns understand all the
rights and duties affecting them and the liberty which they have as to where and now they
shall till their lands and sell the products thereof, with the only exception of the tobacco which
shall be bought by the Hacienda at the same price and conditions allowed other producers,
and with the prohibition against these new towns as well as the others from engaging in
commerce of any other transaction with the rebellious indios, the violation of which shall be
punished with deportation.

7. In order to properly carry out this express prohibition, the limits of the territory of the
rebellious indios shall be fixed; and whoever should go beyond the said limits shall be
detained and assigned governmentally wherever convenient.

8. For the purpose of assisting in the conversion of the pagans into the fraternity of the
Catholic Church, all by this fact along be exempt for eight years from rendering personal
labor.

9. The authorities shall offer in the name of the State to the races not subdued (aetas and
mountains igorrots the following advantages in returns for their voluntary submission: to live
in towns; unity among their families; concession of good lands and the right to cultivate them
in the manner they wish and in the way them deem most productive; support during a year,
and clothes upon effecting submission; respect for their habits and customs in so far as the
same are not opposed to natural law; freedom to decide of their own accord as to whether
they want to be Christians or not; the establishment of missions and families of recognized
honesty who shall teach, direct, protect, and give them security and trust them; the purchase
or facility of the sale of their harvests; the exemption from contributions and tributes for ten
years and from the quintas (a kind of tax) for twenty years; and lastly, that those who are
governed by the local authorities as the ones who elect such officials under the direct charge
of the authorities of the province or district.

10. The races indicated in the preceding article, who voluntarily admit the advantages
offered, shall, in return, have the obligation of constituting their new towns, of constructing
their town hall, schools, and country roads which place them in communication with one
another and with the Christians; provided, the location of these towns be distant from their
actual residences, when the latter do not have the good conditions of location and
cultivations, and provided further the putting of families in a place so selected by them be
authorized in the towns already constituted.
 11. The armed force shall proceed to the prosecution and punishment of the tribes, that,
disregarding the peace, protection, and advantages offered them, continue in their rebellious
attitude on the first of next April, committing from now on the crimes and vexations against
the Christian towns; and for the this purposes, the Captain General's Office shall proceed
with the organization of the divisions of the Army which, in conjunction with the rural guards
(cuadrilleros), shall have to enter the territory of such tribes. On the expiration of the term,
they shall destroy their dwelling-houses, labors, and implements, and confiscate their
products and cattle. Such a punishment shall necessarily be repeated twice a year, and for
this purpose the military headquarters shall immediately order a detachment of the military
staff to study the zones where such operations shall take place and everything conducive to
the successful accomplishment of the same.

12. The chiefs of provinces, priests, and missioners, local authorities, and other subordinates
to my authorities, local authorities, and other subordinates to may authority, civil as well as
military authorities, shall give the most effective aid and cooperation to the said forces in all
that is within the attributes and the scope of the authority of each.

13. With respect to the reduccion of the pagan races found in some of the provinces in the
southern part of the Archipelago, which I intend to visit, the preceding provisions shall
conveniently be applied to them.

14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a

council or permanent commission which shall attend to and decide all the questions relative
to the application of the foregoing regulations that may be brought to it for consultations by
the chiefs of provinces and priests and missionaries.

15. The secondary provisions which may be necessary, as a complement to the foregoing, in
brining about due compliance with this decree, shall be promulgated by the respective official
centers within their respective jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la
Administracion, vol. 7, pp. 128-134.)

B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.

Ever since the acquisition of the Philippine Islands by the United States, the question as to the best
method for dealing with the primitive inhabitants has been a perplexing one.

1. Organic law.

The first order of an organic character after the inauguration of the American Government in the
Philippines was President McKinley's Instructions to the Commission of April 7, 1900, later expressly
approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions
of these instructions have remained undisturbed by subsequent congressional legislation. One
paragraph of particular interest should here be quoted, namely:

In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same
course followed by Congress in permitting the tribes of our North American Indians to
maintain their tribal organization and government and under which many of these tribes are
now living in peace and contentment, surrounded by civilization to which they are unable or
unwilling to conform. Such tribal governments should, however, be subjected to wise and
firm regulation; and, without undue or petty interference, constant and active effort should be
exercised to prevent barbarous practices and introduce civilized customs.
Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act
for the Philippines. The purpose of section 7 of the Philippine Bill was to provide for a legislative
body and, with this end in view, to name the prerequisites for the organization of the Philippine
Assembly. The Philippine Legislature, composed of the Philippine Commission and the Philippine
Assembly, was to have jurisdiction over the Christian portion of the Islands. The Philippine
Commission was to retain exclusive jurisdiction of that part of said Islands inhabited by Moros or
other non-Christian tribes.

The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of
August 29, 1916, commonly known as the Jones Law. This transferred the exclusive legislative
jurisdiction and authority theretofore exercised by the Philippine Commission, to the Philippine
Legislature (sec. 12). It divided the Philippine Islands into twelve senatorial districts, the twelfth
district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of
Mindanao and Sulu. The Governor-General of the Philippine Islands was authorized to appoint
senators and representatives for the territory which, at the time of the passage of the Jones Law,
was not represented in the Philippine Assembly, that is, for the twelfth district (sec. 16). The law
establish a bureau to be known as the "Bureau of non-Christian Tribes" which shall have general
supervision over the public affairs of the inhabitants which are represented in the Legislature by
appointed senators and representatives( sec. 22).

Philippine organic law may, therefore, be said to recognized a dividing line between the territory not
inhabited by Moros or other non-Christian tribes, and the territory which Moros or other non-Christian
tribes, and the territory which is inhabited by Moros or other non-Christian tribes.

2. Statute law.

Local governments in the Philippines have been provided for by various acts of the Philippine
Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of
Benguet and the Igorots; Act NO. 82, the Municipal Code; ;Act no. 83, the Provincial Government
Act; Act No. 183, the Character of the city of Manila; Act No. 7887, providing for the organization and
government of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No.
1397, the Township Government Act; Act No. 1667, relating to the organization of settlements; Act
No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the Department of Mindanao
and Sulu. The major portion of these laws have been carried forward into the Administrative Codes
of 1916 an d1917.

Of more particular interest are certain special laws concerning the government of the primitive
peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9, 1902, by the United States
Philippine Commission, having reference to the Province of Nueva Vizcaya, Acts Nos. 4111, 422,
445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces
of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis,
Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of
these laws, because referring to the Manguianes, we insert Act No. 547:

No. 547. — AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL

GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.

By authority of the United States, be it enacted by the Philippine Commission, that:

SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not progressed
sufficiently in civilization to make it practicable to bring them under any form of municipal
government, the provincial governor is authorized, subject to the approval of the Secretary of
 the Interior, in dealing with these Manguianes to appoint officers from among them, to fix
their designations and badges of office, and to prescribe their powers and duties: Provided,
That the powers and duties thus prescribed shall not be in excess of those conferred upon
township officers by Act Numbered Three hundred and eighty-seven entitled "An Act
providing for the establishment of local civil Governments in the townships and settlements
of Nueva Vizcaya."

SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is
further authorized, when he deems such a course necessary in the interest of law and order,
to direct such Manguianes to take up their habitation on sites on unoccupied public lands to
be selected by him and approved by the provincial board. Manguianes who refuse to comply
with such directions shall upon conviction be imprisonment for a period not exceeding sixty
days.

SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to
acquire the knowledge and experience necessary for successful local popular government,
and his supervision and control over them shall be exercised to this end, an to the end that
law and order and individual freedom shall be maintained.

SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of
Manguianes has advanced sufficiently to make such a course practicable, it may be
organized under the provisions of sections one to sixty-seven, inclusive, of Act Numbered
three hundred and eighty-seven, as a township, and the geographical limits of such township
shall be fixed by the provincial board.

SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same
is hereby expedited in accordance with section two of 'An Act prescribing the order of
procedure by the Commission in the enactment of laws,' passed September twenty-sixth,
nineteen hundred.

SEC. 6. This Act shall take effect on its passage.

Enacted, December 4, 1902.

All of these special laws, with the exception of Act No. 1306, were repealed by Act No. 1396 and
1397. The last named Act incorporated and embodied the provisions in general language. In turn,
Act No. 1397 was repealed by the Administrative Code of 1916. The two Administrative Codes
retained the provisions in questions.

These different laws, if they of the non-Christian inhabitants of the Philippines and a settled and
consistent practice with reference to the methods to be followed for their advancement.

C. TERMINOLOGY.

The terms made use of by these laws, organic and statutory, are found in varying forms.

"Uncivilized tribes" is the denomination in President McKinley's instruction to the Commission.

The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words
are to be found in section 7 of the Philippine Bill and in section 22 of the Jones Law. They are also to
be found in Act No. 253 of the Philippines Commission, establishing a Bureau of non-Christian
Tribes and in Act No. 2674 of the Philippine Legislature, carried forward into sections 701-705 of the
Administrative Code of 1917, reestablishing this Bureau. Among other laws which contain the
phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.

"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the
favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a
Filipinized legislature. These terms can be found in sections 2076, 2077, 2390, 2394, Administrative
Code of 1916; sections 701-705, 2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos.
2404, 2435, 2444, 2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine
Commission.

The Administrative Code specifically provides that the term "non-Christian" shall include
Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec. 2561, Administrative
Code of 1916, taken from Act No. 2408, sec. 3.)

D. MEANING OF TERM "NON-CHRISTIAN."

If we were to follow the literal meaning of the word "non-Christian," it would of course result in giving
to it a religious signification. Obviously, Christian would be those who profess the Christian religion,
and non-Christians, would be those who do not profess the Christian religion. In partial corroboration
of this view, there could also be cited section 2576 of the last Administrative Code and certain well-
known authorities, as Zuñiga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt,
"Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See
Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez,
"Philippine Progress prior to 1898," vol. I. p. 107.)

Not content with the apparent definition of the word, we shall investigate further to ascertain what is
its true meaning.

In one sense, the word can have a geographical signification. This is plainly to be seen by the
provisions of many laws. Thus, according to the Philippine Bill, the authority of the Philippine
Assembly was recognized in the "territory" of the Islands not inhabited by Moros or other non-
Christian tribes. Again, the Jones Law confers similar recognition in the authorization of the twelfth
senatorial district for the "territory not now represented in the Philippine Assembly." The Philippines
Legislature has, time and again, adopted acts making certain other acts applicable to that "part" of
the Philippine Islands inhabited by Moros or other non-Christian tribes.

Section 2145, is found in article XII of the Provincial Law of the Administrative Code. The first section
of this article, preceding section 2145, makes the provisions of the article applicable only in specially
organized provinces. The specially organized provinces are the Mountain Province, Nueva Vizcaya,
Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine Legislature has
never seen fit to give all the powers of local self-government. They do not, however, exactly coincide
with the portion of the Philippines which is not granted popular representation. Nevertheless, it is still
a geographical description.

It is well-known that within the specially organized provinces, there live persons some of who are
Christians and some of whom are not Christians. In fact, the law specifically recognizes this. ( Sec.
2422, Administrative Code of 1917, etc.)

If the religious conception is not satisfactory, so against the geographical conception is likewise
inadquate. The reason it that the motive of the law relates not to a particular people, because of their
religion, or to a particular province because of its location, but the whole intent of the law is
predicated n the civilization or lack of civilization of the inhabitants.

At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce
the term. "The so-called non-Christian" is a favorite expression. The Secretary of the Interior who for
so many years had these people under his jurisdiction, recognizing the difficulty of selecting an exact
designation, speaks of the "backward Philippine peoples, commonly known as the 'non-Christian
tribes."' (See Hearings before the Committee on the Philippines, United States Senate, Sixty-third
Congress, third session on H.R. 18459, An Act to declare the purpose of the People of the United
States as to the future political status of the Philippine Islands and to provide a more autonomous
government for the Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906,
circulated by the Executive Secretary.)

The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated
by reference to legislative, judicial, and executive authority.

The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and sections 701 et
seq, and sections 2422 et seq, of the Administrative Code of 1917. For instance, Act No. 253
charged the Bureau of non-Christian tribes to conduct "systematic investigations with reference to
non-Christian tribes . . . with special view to determining the most practicable means for bringing
about their advancement in civilization and material property prosperity."

As authority of a judicial nature is the decision of the Supreme Court in the case of United
States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as to the effect of a
tribal marriage in connection with article 423 of the Penal code concerning the husband who
surprises his wife in the act of adultery. In discussing the point, the court makes use of the following
language:

. . . we are not advised of any provision of law which recognizes as legal a tribal marriage
of so-called non-Christians or members of uncivilized tribes, celebrated within that province
without compliance with the requisites prescribed by General Orders no. 68. . . . We hold
also that the fact that the accused is shown to be a member of an uncivilized tribe, of a low
order of intelligence, uncultured and uneducated, should be taken into consideration as a
second marked extenuating circumstance.

Of much more moment is the uniform construction of execution officials who have been called upon
to interpret and enforce the law. The official who, as a member of the Philippine Commission, drafted
much of the legislation relating to the so-called Christians and who had these people under his
authority, was the former Secretary of the Interior. Under date of June 30, 1906, this official
addressed a letter to all governor of provinces, organized under the Special Provincial Government
Act, a letter which later received recognition by the Governor-General and was circulated by the
Executive Secretary, reading as follows:

Sir: Within the past few months, the question has arisen as to whether people who were
originally non-Christian but have recently been baptized or who are children of persons who
have been recently baptized are, for the purposes of Act 1396 and 1397, to be considered
Christian or non-Christians.

It has been extremely difficult, in framing legislation for the tribes in these islands which are
not advanced far in civilization, to hit upon any suitable designation which will fit all cases.
The number of individual tribes is so great that it is almost out of the question to enumerate
all of them in an Act. It was finally decided to adopt the designation 'non-Christians' as the
 one most satisfactory, but the real purpose of the Commission was not so much to legislate
for people having any particular religious belief as for those lacking sufficient advancement
so that they could, to their own advantage, be brought under the Provincial Government Act
and the Municipal Code.

The mere act of baptism does not, of course, in itself change the degree of civilization to
which the person baptized has attained at the time the act of baptism is performed. For
practical purposes, therefore, you will give the member of so-called "wild tribes" of your
province the benefit of the doubt even though they may recently have embraced Christianity.

The determining factor in deciding whether they are to be allowed to remain under the
jurisdiction of regularly organized municipalities or what form of government shall be afforded
to them should be the degree of civilization to which they have attained and you are
requested to govern yourself accordingly.

I have discussed this matter with the Honorable, the Governor-General, who concurs in the
opinion above expressed and who will have the necessary instructions given to the
governors of the provinces organized under the Provincial Government Act. (Internal
Revenue Manual, p. 214.)

The present Secretary of the Interior, in a memorandum furnished a member of this court, has the
following to say on the subject:

As far as names are concerned the classification is indeed unfortunate, but while no other
better classification has as yet been made the present classification should be allowed to
stand . . . I believe the term carries the same meaning as the expressed in the letter of the
Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of
civilization rather than of religious denomination, for the hold that it is indicative of religious
denomination will make the law invalid as against that Constitutional guaranty of religious
freedom.

Another official who was concerned with the status of the non-Christians, was the Collector of
Internal Revenue. The question arose for ruling relatives to the cedula taxation of the Manobos and
the Aetas. Thereupon, the view of the Secretary of the Interior was requested on the point, who, by
return indorsement, agreed with the interpretation of the Collector of Internal Revenue. This
Construction of the Collector of Internal Revenue can be found in circular letter No. 188 of the
Bureau of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p.
214):

The internal revenue law exempts "members of non-Christian tribes" from the payment of
cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to mean
not that persons who profess some form of Christian worship are alone subject to the cedula
tax, and that all other person are exempt; he has interpreted it to mean that all persons
preserving tribal relations with the so-called non-Christian tribes are exempt from the cedula
tax, and that all others, including Jews, Mohammedans, Confucians, Buddists, etc., are
subject to said tax so long as they live in cities or towns, or in the country in a civilized
condition. In other words, it is not so much a matter of a man's form of religious worship or
profession that decides whether or not he is subject to the cedula tax; it is more dependent
on whether he is living in a civilized manner or is associated with the mountain tribes, either
as a member thereof or as a recruit. So far, this question has not come up as to whether a
Christian, maintaining his religious belief, but throwing his lot and living with a non-Christian
tribe, would or would not be subject to the cedula tax. On one occasion a prominent Hebrew
 of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he was
not a Christian. This Office, however, continued to collect cedula taxes from all the Jews,
East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of the
cedula taxes paid in this city are paid by men belonging to the nationalities mentioned.
Chinamen, Arabs and other s are quite widely scattered throughout the Islands, and a
condition similar to that which exist in Manila also exists in most of the large provincial towns.
Cedula taxes are therefore being collected by this Office in all parts of these Islands on the
broad ground that civilized people are subject to such taxes, and non-civilized people
preserving their tribal relations are not subject thereto.

(Sgd.) JNO. S. HORD,

Collector of Internal Revenue.

On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327,
approved by the Secretary of Finance and Justice, to all provincial treasurers. This letter in part
reads:

In view of the many questions that have been raised by provincial treasurers regarding
cedula taxes due from members of non-Christian tribes when they come in from the hills for
the purposes of settling down and becoming members of the body politic of the Philippine
Islands, the following clarification of the laws governing such questions and digest of rulings
thereunder is hereby published for the information of all concerned:

Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact
that they do not profess Christianity, but because of their uncivilized mode of life and low
state of development. All inhabitants of the Philippine Islands classed as members of non-
Christian tribes may be divided into three classes in so far as the cedula tax law is concerned
...

Whenever any member of an non-Christian tribe leaves his wild and uncivilized mode of life,
severs whatever tribal relations he may have had and attaches himself civilized community,
belonging a member of the body politic, he thereby makes himself subject to precisely the
same law that governs the other members of that community and from and after the date
when he so attaches himself to the community the same cedula and other taxes are due
from him as from other members thereof. If he comes in after the expiration of the
delinquency period the same rule should apply to him as to persons arriving from foreign
countries or reaching the age of eighteen subsequent to the expiration of such period, and a
regular class A, D, F, or H cedula, as the case may be, should be furnished him without
penalty and without requiring him to pay the tax for former years.

In conclusion, it should be borne in mind that the prime factors in determining whether or not
a man is subject to the regular cedula tax is not the circumstance that he does or does not
profess Christianity, nor even his maintenance of or failure to maintain tribal relations with
some of the well known wild tribes, but his mode of life, degree of advancement in civilization
and connection or lack of connection with some civilized community. For this reason so
called "Remontados" and "Montescos" will be classed by this office as members of non-
Christian tribes in so far as the application of the Internal Revenue Law is concerned, since,
even though they belong to no well recognized tribe, their mode of life, degree of
advancement and so forth are practically the same as those of the Igorrots and members of
other recognized non-Christina tribes.

Very respectfully,
 (Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,

Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.

The two circular above quoted have since been repealed by Bureau of Internal Revenue Regulations
No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on
April 16, 1915, by Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the
regulations is practically a transcript of Circular Letter No. 327.

The subject has come before the Attorney-General for consideration. The Chief of Constabulary
request the opinion of the Attorney-General as to the status of a non-Christian who has been
baptized by a minister of the Gospel. The precise questions were these: "Does he remain non-
Christian or is he entitled to the privileges of a Christian? By purchasing intoxicating liquors, does he
commit an infraction of the law and does the person selling same lay himself liable under the
provision of Act No. 1639?" The opinion of Attorney-General Avanceña, after quoting the same
authorities hereinbefore set out, concludes:

In conformity with the above quoted constructions, it is probable that is probable that the
person in question remains a non-Christian, so that, in purchasing intoxicating liquors both
he and the person selling the same make themselves liable to prosecution under the
provisions of Act No. 1639. At least, I advise you that these should be the constructions
place upon the law until a court shall hold otherwise.

Solicitor-General Paredes in his brief in this case says:

With respect to the meaning which the phrase non-Christian inhabitants has in the provisions
of the Administrative code which we are studying, we submit that said phrase does not have
its natural meaning which would include all non-Christian inhabitants of the Islands, whether
Filipino or strangers, civilized or uncivilized, but simply refers to those uncivilized members of
the non-Christian tribes of the Philippines who, living without home or fixed residence, roam
in the mountains, beyond the reach of law and order . . .

The Philippine Commission in denominating in its laws that portion of the inhabitants of the
Philippines which live in tribes as non-Christian tribes, as distinguished from the common
Filipinos which carry on a social and civilized life, did not intended to establish a distinction
based on the religious beliefs of the individual, but, without dwelling on the difficulties which
later would be occasioned by the phrase, adopted the expression which the Spanish
legislation employed to designate the uncivilized portion of the inhabitants of the Philippines.

The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and 2741 of Act
No. 2657 (articles 2145 and 2759) should be understood as equivalent to members of
uncivilized tribes of the Philippines, not only because this is the evident intention of the law,
but because to give it its lateral meaning would make the law null and unconstitutional as
making distinctions base the religion of the individual.

The Official Census of 1903, in the portion written by no less an authority than De. David P. Barrows,
then "Chief of the Bureau of non-Christian Tribes," divides the population in the Christian or Civilized
Tribes, and non-Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et
seq). The present Director of the Census, Hon. Ignacio Villamor, writes that the classification likely to
be used in the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing
Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular
Affairs, War Department, a sub-division under the title non-Christian tribes is, "Physical and Political
Characteristics of the non-Christian Tribes," which sufficiently shows that the terms refers to culture
and not to religion.

In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials,
specifically, join in the proposition that the term "non-Christian" refers, not to religious belief, but, in a
way , to geographical area, and, more directly, to natives of the Philippine Islands of a law grade of
civilization, usually living in tribal relationship apart from settled communities.

E. THE MANGUIANES.

The so-called non-Christians are in various state approaching civilization. The Philippine Census of
1903 divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of
Mindoro.

Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia de los nombres
de Rozas de Filipinas, says:

In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan," "negro."
It may be that the use of this word is applicable to a great number of Filipinos, but
nevertheless it has been applied only to certain inhabitants of Mindoro. Even in primitive
times without doubt this name was given to those of that island who bear it to-day, but its
employed in three Filipino languages shows that the radical ngian had in all these languages
a sense to-day forgotten. In Pampango this ending still exists and signifies "ancient," from
which we can deduce that the name was applied to men considered to be the ancient
inhabitants, and that these men were pushed back into the interior by the modern invaders,
in whose language they were called the "ancients."

The Manguianes are very low in culture. They have considerable Negrito blood and have not
advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive, semi-nomadic
people. They number approximately 15,000. The manguianes have shown no desire for community
life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization
to make it practicable to bring them under any form of municipal government. (See Census of the
Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)

III. COMPARATIVE — THE AMERICAN INDIANS.

Reference was made in the Presidents' instructions to the Commission to the policy adopted by the
United States for the Indian Tribes. The methods followed by the Government of the Philippines
Islands in its dealings with the so-called non-Christian people is said, on argument, to be practically
identical with that followed by the United States Government in its dealings with the Indian tribes.
Valuable lessons, it is insisted, can be derived by an investigation of the American-Indian policy.

From the beginning of the United States, and even before, the Indians have been treated as "in a
state of pupilage." The recognized relation between the Government of the United States and the
Indians may be described as that of guardian and ward. It is for the Congress to determine when
and how the guardianship shall be terminated. The Indians are always subject to the plenary
authority of the United States.
Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the
Congress passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring
Indians." After quoting the Act, the opinion goes on — "This act avowedly contemplates the
preservation of the Indian nations as an object sought by the United States, and proposes to effect
this object by civilizing and converting them from hunters into agriculturists."

A leading case which discusses the status of the Indians is that of the United States vs. Kagama
([1886], 118 U.S., 375). Reference is herein made to the clause of the United States Constitution
which gives Congress "power to regulate commerce with foreign nations, and among the several
States, and with the Indian tribes." The court then proceeds to indicate a brief history of the position
of the Indians in the United States (a more extended account of which can be found in Marshall's
opinion in Worcester vs. Georgia, supra), as follows:

The relation of the Indian tribes living within the borders of the United States, both before and
since the Revolution, to the people of the United States, has always been an anomalous one
and of a complex character.

Following the policy of the European Governments in the discovery of American towards the
Indians who were found here, the colonies before the Revolution and the States and the
United States since, have recognized in the Indians a possessory right to the soil over which
they roamed and hunted and established occasional villages. But they asserted an ultimate
title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other
nations or peoples without the consent of this paramount authority. When a tribe wished to
dispose of its lands, or any part of it, or the State or the United States wished to purchase it,
a treaty with the tribe was the only mode in which this could be done. The United States
recognized no right in private persons, or in other nations, to make such a purchase by treaty
or otherwise. With the Indians themselves these relation are equally difficult to define. They
were, and always have been, regarded as having a semi-independent position when they
preserved their tribal relations; not as States, not as nation not a possessed of the fall
attributes of sovereignty, but as a separate people, with the power of regulating their internal
and social relations, and thus far not brought under the laws of the Union or of the State
within whose limits they resided.

The opinion then continues:

It seems to us that this (effect of the law) is within the competency of Congress. These Indian
tribes are the wards of the nation. The are communities dependent on the United States.
dependent largely for their daily food. Dependent for their political rights. They owe no
allegiance to the States, and receive from the no protection. Because of the local ill feeling,
the people of the States where they are found are often their deadliest enemies. From their
very weakness and helplessness, so largely due to the course of dealing of the Federal
Government with them and the treaties in which it has been promised, there arise the duty of
protection, and with it the power. This has always been recognized by the Executive and by
Congress, and by this court, whenever the question has arisen . . . The power of the General
Government over these remnants of race once powerful, now weak and diminished in
numbers, is necessary to their protection, as well as to the safety of those among whom they
dwell. it must exist in that government, because it never has existed anywhere else, because
the theater of its exercise is within the geographical limits of the United States, because it
has never been denied, and because it alone can enforce its laws on all the tribes.

In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be considered
was whether the status of the Pueblo Indians and their lands was such that Congress could prohibit
the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico
to statehood. The court looked to the reports of the different superintendent charged with guarding
their interests and founds that these Indians are dependent upon the fostering care and protection of
the government "like reservation Indians in general." Continuing, the court said "that during the
Spanish dominion, the Indians of the pueblos were treated as wards requiring special protection,
where subjected to restraints and official supervisions in the alienation of their property." And finally,
we not the following: "Not only does the Constitution expressly authorize Congress to regulate
commerce with the Indians tribes, but long-continued legislative and executive usage and an
unbroken current of judicial decisions have attributed to the United States as a superior and civilized
nation the power and the duty of exercising a fostering care and protection over all dependent Indian
communities within its borders, whether within its original territory or territory subsequently acquired,
and whether within or without the limits of a state."

With reference to laws affecting the Indians, it has been held that it is not within the power of the
courts to overrule the judgment of Congress. For very good reason, the subject has always been
deemed political in nature, not subject to the jurisdiction of the judicial department of the
government. (Matter of Heff [1905], 197 U.S., 488; U.S. vs. Celestine [1909], 215 U.S., 278;
U.S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the
Cherokee Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs.Gay
[1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907],
204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co. [1911], 221
U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N.
S.], 795.) Whenever, therefore, the United States sets apart any public land as an Indian reservation,
it has full authority to pass such laws and authorize such measures as may be necessary to give to
the Indians thereon full protection in their persons and property. (U.S. vs.Thomas [1894], 151 U.S.,
577.)

All this borne out by long-continued legislative and executive usage, and an unbroken line of judicial
decisions.

The only case which is even remotely in point and which, if followed literally, might result in the
issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This
was a hearing upon return to a writ of habeas corpus issued against Brigadier General George
Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of
Indians. The petition alleged in substance that the relators are Indians who have formerly belonged
to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously
withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted
the general habits of the whites, and were then endeavoring to maintain themselves by their own
exertions, and without aid or assistance from the general government; that whilst they were thus
engaged, and without being guilty of violating any of the laws of the United States, they were
arrested and restrained of their liberty by order of the respondent, George Crook. The substance of
the return to the writ was that the relators are individual members of, and connected with, the Ponca
tribe of Indians; that they had fled or escaped form a reservation situated some place within the
limits of the Indian Territory — had departed therefrom without permission from the Government;
and, at the request of the Secretary of the Interior, the General of the Army had issued an order
which required the respondent to arrest and return the relators to their tribe in the Indian Territory,
and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian
Territory.

The first question was whether an Indian can test the validity of an illegal imprisonment by habeas
corpus. The second question, of much greater importance, related to the right of the Government to
arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory from
which it was alleged the Indian escaped. In discussing this question, the court reviewed the policy
the Government had adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the
court said: "Laws passed for the government of the Indian country, and for the purpose of regulating
trade and intercourse with the Indian tribes, confer upon certain officers of the Government almost
unlimited power over the persons who go upon the reservations without lawful authority . . . Whether
such an extensive discretionary power is wisely vested in the commissioner of Indian affairs or not ,
need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the
exercise of the power must be upheld." The decision concluded as follows:

The reasoning advanced in support of my views, leads me to conclude:

1. that an Indian is a 'person' within the meaning of the laws of the United States, and has,
therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal
judge, in all cases where he may be confined or in custody under color of authority of the
United States or where he is restrained of liberty in violation of the constitution or laws of the
United States.

2. That General George Crook, the respondent, being commander of the military department
of the Platte, has the custody of the relators, under color of authority of the United States,
and in violation of the laws therefore.

3. That n rightful authority exists for removing by force any of the relators to the Indian
Territory, as the respondent has been directed to do.

4. that the Indians possess the inherent right of expatriation, as well as the more fortunate
white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so
long as they obey the laws and do not trespass on forbidden ground. And,

5. Being restrained of liberty under color of authority of the United States, and in violation of
the laws thereof, the relators must be discharged from custody, and it is so ordered.

As far as the first point is concerned, the decision just quoted could be used as authority to
determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a
"person" within the meaning of the Habeas Corpus Act, and as such, entitled to sue out a writ in the
Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide.

As to the second point the facts in the Standing Bear case an the Rubi case are not exactly identical.
But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the
United States, that Indians have been taken from different parts of the country and placed on these
reservation, without any previous consultation as to their own wishes, and that, when once so
located, they have been made to remain on the reservation for their own good and for the general
good of the country. If any lesson can be drawn form the Indian policy of the United States, it is that
the determination of this policy is for the legislative and executive branches of the government and
that when once so decided upon, the courts should not interfere to upset a carefully planned
governmental system. Perhaps, just as may forceful reasons exists for the segregation as existed for
the segregation of the different Indian tribes in the United States.

IV. CONSTITUTIONAL QUESTIONS.

A. DELEGATION OF LEGISLATIVE POWER.

The first constitutional objection which confronts us is that the Legislature could not delegate this
power to provincial authorities. In so attempting, it is contended, the Philippine Legislature has
abdicated its authority and avoided its full responsibility.

That the maxim of Constitutional Law forbidding the delegation of legislative power should be
zealously protected, we agree. An understanding of the rule will, however, disclose that it has not
bee violated in his instance.

The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and
since followed in a multitude of case, namely: "The true distinction therefore is between the
delegation of power to make the law, which necessarily involves a discretion as to what it shall be,
and conferring an authority or discretion as to its execution, to be exercised under and in pursuance
of the law. The first cannot be done; to the later no valid objection can be made." (Cincinnati, W. & Z.
R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by Chief Justice
Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an
executive department or official. The Legislature may make decisions of executive departments of
subordinate official thereof, to whom t has committed the execution of certain acts, final on questions
of fact. (U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give
prominence to the "necessity" of the case.

Is not all this exactly what the Legislature has attempted to accomplish by the enactment of section
21454 of the Administrative Code? Has not the Legislature merely conferred upon the provincial
governor, with the approval of the provincial board and the Department Head, discretionary authority
as to the execution of the law? Is not this "necessary"?

The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to require the
Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by the
relator out of the lands ceded to the United States by the Wichita and affiliated bands of Indians.
Section 463 of the United States Revised Statutes provided: "The Commissioner of Indian Affairs
shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the
President may prescribe, have the management of all Indian affairs, and of all matters arising out to
the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially in view of the
long established practice of the Department, before saying that this language was not broad enough
to warrant a regulation obviously made for the welfare of the rather helpless people concerned. The
power of Congress is not doubted. The Indians have been treated as wards of the nation. Some
such supervision was necessary, and has been exercised. In the absence of special provisions
naturally it would be exercised by the Indian Department." (See also as corroborative authority, it any
is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S.., 364, reviewing the previous decisions of the
United States Supreme Court: U.S. vs. Lane [1914], 232 U.S., 598.)

There is another aspect of the question, which once accepted, is decisive. An exception to the
general rule. sanctioned by immemorial practice, permits the central legislative body to delegate
legislative powers to local authorities. The Philippine Legislature has here conferred authority upon
the Province of Mindoro, to be exercised by the provincial governor and the provincial board.

Who but the provincial governor and the provincial board, as the official representatives of the
province, are better qualified to judge "when such as course is deemed necessary in the interest of
law and order?" As officials charged with the administration of the province and the protection of its
inhabitants, who but they are better fitted to select sites which have the conditions most favorable for
improving the people who have the misfortune of being in a backward state?
Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by
the Philippine Legislature to provincial official and a department head.

B. RELIGIOUS DISCRIMINATION

The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his
unknown clients, says that — "The statute is perfectly clear and unambiguous. In limpid English, and
in words as plain and unequivocal as language can express, it provides for the segregation of 'non-
Christians' and none other." The inevitable result, them, is that the law "constitutes an attempt by the
Legislature to discriminate between individuals because of their religious beliefs, and is,
consequently, unconstitutional."

Counsel's premise once being conceded, his arguments is answerable — the Legislature must be
understood to mean what it has plainly expressed; judicial construction is then excluded; religious
equality is demanded by the Organic Law; the statute has violated this constitutional guaranty, and
Q. E. D. is invalid. But, as hereinbefore stated, we do not feel free to discard the long continued
meaning given to a common expression, especially as classification of inhabitants according to
religious belief leads the court to what it should avoid, the nullification of legislative action. We hold
that the term "non-Christian" refers to natives of the Philippines Islands of a low grade of civilization,
and that section 2145 of the Administrative Code of 1917, does not discriminate between individuals
an account of religious differences.

C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.

The third constitutional argument is grounded on those portions of the President's instructions of to
the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in
said Islands which shall deprive any person of life, liberty, or property without due process of law, or
deny to any person therein the equal protection of the laws." This constitutional limitation is derived
from the Fourteenth Amendment to the United States Constitution — and these provisions, it has
been said "are universal in their application, to all persons within the territorial jurisdiction, without
regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S.,
356.) The protection afforded the individual is then as much for the non-Christian as for the
Christian.

The conception of civil liberty has been variously expressed thus:

Every man may claim the fullest liberty to exercise his faculties, compatible with the
possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)

Liberty is the creature of law, essentially different from that authorized licentiousness that
trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and
a refined idea, the offspring of high civilization, which the savage never understood, and
never can understand. Liberty exists in proportion to wholesome restraint; the more restraint
on others to keep off from us, the more liberty we have . . . that man is free who is protected
from injury. (II Webster's Works, p. 393.)

Liberty consists in the ability to do what one caught to desire and in not being forced to do
what one ought not do desire. (Montesque, spirit of the Laws.)

Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's
own will. It is only freedom from restraint under conditions essential to the equal enjoyment
of the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.)
 Liberty does not import "an absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint. There are manifold restraints to which every
person is necessarily subject for the common good. On any other basis, organized society
could not exist with safety to its members. Society based on the rule that each one is a law
unto himself would soon be confronted with disorder and anarchy. Real liberty for all could
not exist under the operation of a principle which recognizes the right of each individual
person to use his own, whether in respect of his person or his property, regardless of the
injury that may be done to others . . . There is, of course, a sphere with which the individual
may asserts the supremacy of his own will, and rightfully dispute the authority of any human
government — especially of any free government existing under a written Constitution — to
interfere with the exercise of that will. But it is equally true that in very well-ordered society
charged with the duty of conserving the safety of its members, the rights of the individual in
respect of his liberty may at times, under the pressure of great dangers, be subjected to such
restraint to be enforced by reasonable regulations, as the safety of the general public may
demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)

Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright
and honorable conscience of the individual. (Apolinario Mabini.)

Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized
community, consistently with the peaceful enjoyment of like freedom in others. The right to Liberty
guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary
personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties
with which he has been endowed by this Creator, subject only to such restraints as are necessary
for the common welfare. As enunciated in a long array of authorities including epoch-making
decisions of the United States Supreme Court, Liberty includes the right of the citizens to be free to
use his faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful
calling; to pursue any avocations, an for that purpose. to enter into all contracts which may be
proper, necessary, and essential to his carrying out these purposes to a successful conclusion. The
chief elements of the guaranty are the right to contract, the right to choose one's employment, the
right to labor, and the right of locomotion.

In general, it may be said that Liberty means the opportunity to do those things which are ordinarily
done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277;
Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274;
Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6
R.C.L., 258, 261.)

One thought which runs through all these different conceptions of Liberty is plainly apparent. It is
this: "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." Implied in
the term is restraint by law for the good of the individual and for the greater good of the peace and
order of society and the general well-being. No man can do exactly as he pleases. Every man must
renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint
by general law for the common good. Whenever and wherever the natural rights of citizen would, if
exercises without restraint, deprive other citizens of rights which are also and equally natural, such
assumed rights must yield to the regulation of law. The Liberty of the citizens may be restrained in
the interest of the public health, or of the public order and safety, or otherwise within the proper
scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes
Manufacturing Co. vs. Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in
the course of the argument in the Dartmouth College Case before the United States Supreme Court,
since a classic in forensic literature, said that the meaning of "due process of law" is, that "every
citizen shall hold his life, liberty, property, an immunities under the protection of the general rules
which govern society." To constitute "due process of law," as has been often held, a judicial
proceeding is not always necessary. In some instances, even a hearing and notice are not requisite
a rule which is especially true where much must be left to the discretion of the administrative officers
in applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due
process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority,
whether sanctioned by age and customs, or newly devised in the discretion of the legislative power,
in furtherance of the public good, which regards and preserves these principles of liberty and justice,
must be held to be due process of law." (Hurtado vs.California [1883], 110, U.S., 516.) "Due process
of law" means simply . . . "first, that there shall be a law prescribed in harmony with the general
powers of the legislative department of the Government; second, that this law shall be reasonable in
its operation; third, that it shall be enforced according to the regular methods of procedure
prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to all of a
class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme
Court. 1) "What is due process of law depends on circumstances. It varies with the subject-matter
and necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.)

The pledge that no person shall be denied the equal protection of the laws is not infringed by a
statute which is applicable to all of a class. The classification must have a reasonable basis and
cannot be purely arbitrary in nature.

We break off with the foregoing statement, leaving the logical deductions to be made later on.

D. SLAVERY AND INVOLUNTARY SERVITUDE.

The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United
States Constitution particularly as found in those portions of Philippine Organic Law providing "That
slavery shall not exist in said Islands; nor shall involuntary servitude exist except as a punishment for
crime whereof the party shall have been duly convicted." It is quite possible that the Thirteenth
Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force
in the Philippine. However this may be, the Philippine Legislature has, by adoption, with necessary
modifications, of sections 268 to 271 inclusive of the United States Criminal Code, prescribed the
punishment for these crimes. Slavery and involuntary servitude, together wit their corollary,
peonage, all denote "a condition of enforced, compulsory service of one to another."
(Hodges vs. U.S. [1906], 203 U.S., 1.) The term of broadest scope is possibly involuntary servitude.
It has been applied to any servitude in fact involuntary, no matter under what form such servitude
may have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.)

So much for an analysis of those constitutional provisions on which petitioners rely for their freedom.
Next must come a description of the police power under which the State must act if section 2145 is
to be held valid.

E. THE POLICE POWER.

Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is
the farreaching scope of the power, that it has become almost possible to limit its weep, and that
among its purposes is the power to prescribe regulations to promote the health, peace, morals,
education, and good order of the people, and to legislate so as to increase the industries of the
State, develop its resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884],
113 U.S., 27.) What we are not interested in is the right of the government to restrain liberty by the
exercise of the police power.

"The police power of the State," one court has said, . . . "is a power coextensive with self-protection,
and is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and
plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and
welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by
the current of legislation, the judiciary rarely attempt to dam the on rushing power of legislative
discretion, provided the purposes of the law do not go beyond the great principles that mean security
for the public welfare or do not arbitrarily interfere with the right of the individual.

The Government of the Philippine Islands has both on reason and authority the right to exercise the
sovereign police power in the promotion of the general welfare and the public interest. "There can be
not doubt that the exercise of the police power of the Philippine Government belongs to the
Legislature and that this power is limited only by the Acts of Congress and those fundamental
principles which lie at the foundation of all republican forms of government." (Churchill and
Tait vs. Rafferty [1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.)

With the foregoing approximation of the applicable basic principles before us, before finally deciding
whether any constitutional provision has indeed been violated by section 2145 of the Administrative
Code, we should endeavor to ascertain the intention of the Legislature in enacting this section. If
legally possible, such legislative intention should be effectuated.

F. LEGISLATIVE INTENT.

The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao
reservation, it will be remembered, assigned as reasons fort the action, the following: (1) The failure
of former attempts for the advancement of the non-Christian people of the province; and (2) the only
successfully method for educating the Manguianes was to oblige them to live in a permanent
settlement. The Solicitor-General adds the following; (3) The protection of the Manguianes; (4) the
protection of the public forests in which they roam; (5) the necessity of introducing civilized customs
among the Manguianes.

The present Secretary of the Interior says of the Tigbao reservation and of the motives for its
selection, the following:

To inform himself of the conditions of those Manguianes who were taken together to Tigbao,
the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place. There he found
that the site selected is a good one; that creditable progress has been made in the clearing
of forests, construction of buildings, etc., that there appears to be encouraging reaction by
the boys to the work of the school the requirements of which they appear to meet with
enthusiastic interest after the first weeks which are necessarily a somewhat trying period for
children wholly unaccustomed to orderly behaviour and habit of life. He also gathered the
impression that the results obtained during the period of less than one year since the
beginning of the institution definitely justify its continuance and development.

Of course, there were many who were protesting against that segregation. Such was
naturally to be expected. But the Secretary of the Interior, upon his return to Manila, made
the following statement to the press:

"It is not deemed wise to abandon the present policy over those who prefer to live a
nomadic life and evade the influence of civilization. The Government will follow its
 policy to organize them into political communities and to educate their children with
the object of making them useful citizens of this country. To permit them to live a
wayfaring life will ultimately result in a burden to the state and on account of their
ignorance, they will commit crimes and make depredation, or if not they will be
subject to involuntary servitude by those who may want to abuse them."

The Secretary of the Interior, who is the official charged with the supervision of all the non-Christian
people, has adopted as the polaris of his administration — "the advancement of the non-Christian
elements of our population to equality and unification with the highly civilized Christian inhabitants."
This is carried on by the adoption of the following measures:

(a) Pursuance of the closer settlement policy whereby people of seminomadic race are
induced to leave their wild habitat and settle in organized communities.

(b) The extension of the public school system and the system of public health throughout the
regions inhabited by the non-Christian people.

(c) The extention of public works throughout the Mohammedan regions to facilitate their
development and the extention of government control.

(d) Construction of roads and trials between one place and another among non-Christians, to
promote social and commercial intercourse and maintain amicable relations among them
and with the Christian people.

(e) Pursuance of the development of natural economic resources, especially agriculture.

( f ) The encouragement of immigration into, and of the investment of private capital in, the
fertile regions of Mindanao and Sulu.

The Secretary adds:

To attain the end desired, work of a civilizing influence have been continued among the non-
Christian people. These people are being taught and guided to improve their living conditions
in order that they may fully appreciate the benefits of civilization. Those of them who are still
given to nomadic habits are being persuaded to abandon their wild habitat and settle in
organized settlements. They are being made to understand that it is the purpose of the
Government to organize them politically into fixed and per manent communities, thus
bringing them under the control of the Government, to aid them to live and work, protect
them from involuntary servitude and abuse, educate their children, and show them the
advantages of leading a civilized life with their civilized brothers. In short, they are being
impressed with the purposes and objectives of the Government of leading them to economic,
social, and political equality, and unification with the more highly civilized inhabitants of the
country. (See Report of the Department for 1917.)

The fundamental objective of governmental policy is to establish friendly relations with the so-called
non-Christians, and to promote their educational, agricultural, industrial, and economic development
and advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing
the Bureau of non-Christian Tribes, defines the aim of the Government towards the non-Christian
people in the following unequivocal terms:
 It shall be the duty of the Bureau of non-Christian Tribes to continue the work for
advancement and liberty in favor of the region inhabited by non-Christian Filipinos and foster
by all adequate means and in a systematical, rapid, and complete manner the moral,
material, economic, social, and political development of those regions, always having in view
the aim of rendering permanent the mutual intelligence between, and complete fusion of, all
the Christian and non-Christian elements populating the provinces of the Archipelago. (Sec.
3.)

May the Manguianes not be considered, as are the Indians in the United States, proper wards of the
Filipino people? By the fostering care of a wise Government, may not these unfortunates advance in
the "habits and arts of civilization?" Would it be advisable for the courts to intrude upon a plan,
carefully formulated, and apparently working out for the ultimate good of these people?

In so far as the Manguianes themselves are concerned, the purpose of the Government is evident.
Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making
depredations on their more fortunate neighbors, uneducated in the ways of civilization, and doing
nothing for the advancement of the Philippine Islands. What the Government wished to do by
bringing than into a reservation was to gather together the children for educational purposes, and to
improve the health and morals — was in fine, to begin the process of civilization. this method was
termed in Spanish times, "bringing under the bells." The same idea adapted to the existing situation,
has been followed with reference to the Manguianes and other peoples of the same class, because
it required, if they are to be improved, that they be gathered together. On these few reservations
there live under restraint in some cases, and in other instances voluntarily, a few thousands of the
uncivilized people. Segregation really constitutes protection for the manguianes.

Theoretically, one may assert that all men are created free and equal. Practically, we know that the
axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are
free, and they are not the equals of their more fortunate brothers. True, indeed, they are citizens,
with many but not all the rights which citizenship implies. And true, indeed, they are Filipinos. But
just as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a
drag upon the progress of the State.

In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature
in enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro
must have their crops and persons protected from predatory men, or they will leave the country. It is
no argument to say that such crimes are punished by the Penal Code, because these penalties are
imposed after commission of the offense and not before. If immigrants are to be encouraged to
develop the resources of the great Islands of Mindoro, and its, as yet, unproductive regions, the
Government must be in a position to guarantee peace and order.

Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy
and thriftlessness are not conducive to homogeneity. The State to protect itself from destruction
must prod on the laggard and the sluggard. The great law of overwhelming necessity is all
convincing.

To quote again from the instructive memorandum of the Secretary of the Interior:

Living a nomadic and a wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction — burning and destroying the forests
and making illegal caiñgins thereon. Not bringing any benefit to the State but instead injuring
and damaging its interests, what will ultimately become of these people with the sort of
liberty they wish to preserve and for which they are now fighting in court? They will ultimately
become a heavy burden to the State and on account of their ignorance they will commit
crimes and make depredations, or if not they will be subjected to involuntary servitude by
those who may want to abuse them.

There is no doubt in my mind that this people a right conception of liberty and does not
practice liberty in a rightful way. They understand liberty as the right to do anything they will
— going from one place to another in the mountains, burning and destroying forests and
making illegal caiñgins thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they allege
that they are being deprived thereof without due process of law?

xxx xxx xxx

But does the Constitutional guaranty that 'no person shall be deprived of his liberty without
due process of law' apply to a class of persons who do not have a correct idea of what liberty
is and do not practise liberty in a rightful way?

To say that it does will mean to sanction and defend an erroneous idea of such class of
persons as to what liberty is. It will mean, in the case at bar, that the Government should not
adopt any measures looking to the welfare and advancement of the class of persons in
question. It will mean that this people should be let along in the mountains and in a
permanent state of savagery without even the remotest hope of coming to understand liberty
in its true and noble sense.

In dealing with the backward population, like the Manguianes, the Government has been
placed in the alternative of either letting them alone or guiding them in the path of civilization.
The latter measure was adopted as the one more in accord with humanity and with national
conscience.

xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens. The
progress of those people under the tutelage of the Government is indeed encouraging and
the signs of the times point to a day which is not far distant when they will become useful
citizens. In the light of what has already been accomplished which has been winning the
gratitude of most of the backward people, shall we give up the noble work simply because a
certain element, believing that their personal interests would be injured by such a measure
has come forward and challenged the authority of the Government to lead this people in the
pat of civilization? Shall we, after expending sweat, treasure, and even blood only to redeem
this people from the claws of ignorance and superstition, now willingly retire because there
has been erroneously invoked in their favor that Constitutional guaranty that no person shall
be deprived of his liberty without due process of law? To allow them to successfully invoke
that Constitutional guaranty at this time will leave the Government without recourse to pursue
the works of civilizing them and making them useful citizens. They will thus left in a
permanent state of savagery and become a vulnerable point to attack by those who doubt,
nay challenge, the ability of the nation to deal with our backward brothers.

The manguianes in question have been directed to live together at Tigbao. There they are
being taught and guided to improve their living conditions. They are being made to
understand that they object of the government is to organize them politically into fixed and
 permanent communities. They are being aided to live and work. Their children are being
educated in a school especially established for them. In short, everything is being done from
them in order that their advancement in civilization and material prosperity may be assured.
Certainly their living together in Tigbao does not make them slaves or put them in a condition
compelled to do services for another. They do not work for anybody but for themselves.
There is, therefore, no involuntary servitude.

But they are compelled to live there and prohibited from emigrating to some other places
under penalty of imprisonment. Attention in this connection is invited to the fact that this
people, living a nomadic and wayfaring life, do not have permanent individual property. They
move from one place to another as the conditions of living warrants, and the entire space
where they are roving about is the property of the nation, the greater part being lands of
public domain. Wandering from one place to another on the public lands, why can not the
government adopt a measure to concentrate them in a certain fixed place on the public
lands, instead of permitting them to roam all over the entire territory? This measure is
necessary both in the interest of the public as owner of the lands about which they are roving
and for the proper accomplishment of the purposes and objectives of the government. For as
people accustomed to nomadic habit, they will always long to return to the mountains and
follow a wayfaring life, and unless a penalty is provinced for, you can not make them live
together and the noble intention of the Government of organizing them politically will come to
naught.

G. APPLICATION AND CONCLUSION.

Our exhaustive study should have left us in a position to answer specific objections and to reach a
general conclusion.

In the first place, it is argued that the citizen has the right, generally speaking, to go where he
pleases. Could be not, however, be kept away from certain localities ? To furnish an example from
the Indian legislation. The early Act of Congress of 1802 (2 U.S. Stat. at L., p. 141) Indian
reservation. Those citizens certainly did not possess absolute freedom of locomotion. Again the
same law provided for the apprehension of marauding Indians. Without any doubt, this law and other
similar were accepted and followed time and again without question.

It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people
confined as in a prison at the mercy of unscrupulous official. What, it is asked, would be the remedy
of any oppressed Manguian? The answer would naturally be that the official into whose hands are
given the enforcement of the law would have little or not motive to oppress these people; on the
contrary, the presumption would all be that they would endeavor to carry out the purposes of the law
intelligently and patriotically. If, indeed, they did ill-treat any person thus confined, there always
exists the power of removal in the hands of superior officers, and the courts are always open for a
redress of grievances. When, however, only the validity of the law is generally challenged and no
particular case of oppression is called to the attention of the courts, it would seems that the Judiciary
should not unnecessarily hamper the Government in the accomplishment of its laudable purpose.

The question is above all one of sociology. How far, consistently with freedom, may the right and
liberties of the individual members of society be subordinated to the will of the Government? It is a
question which has assailed the very existence of government from the beginning of time. Now
purely an ethical or philosophical subject, nor now to be decided by force, it has been transferred to
the peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the
very existence of government renders imperatives a power to restrain the individual to some extent,
dependent, of course, on the necessities of the class attempted to be benefited. As to the particular
degree to which the Legislature and the Executive can go in interfering with the rights of the citizen,
this is, and for a along time to come will be, impossible for the courts to determine.

The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics
and political theory, are of the past. The modern period has shown as widespread belief in the
amplest possible demonstration of governmental activity. The courts unfortunately have sometimes
seemed to trial after the other two branches of the government in this progressive march.

Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the
Legislature has exceeded its rightful authority. it is, indeed, an unusual exercise of that power. But a
great malady requires an equally drastic remedy.

Further, one cannot hold that the liberty of the citizen is unduly interfered without when the degree of
civilization of the Manguianes is considered. They are restrained for their own good and the general
good of the Philippines. Nor can one say that due process of law has not been followed. To go back
to our definition of due process of law and equal protection of the law, there exists a law ; the law
seems to be reasonable; it is enforced according to the regular methods of procedure prescribed;
and it applies alike to all of a class.

As a point which has been left for the end of this decision and which, in case of doubt, would lead to
the determination that section 2145 is valid. it the attitude which the courts should assume towards
the settled policy of the Government. In a late decision with which we are in full accord,
Gambles vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice of the
Supreme Court of Tennessee writes:

We can seen objection to the application of public policy as a ratio decidendi. Every really new
question that comes before the courts is, in the last analysis, determined on that theory, when not
determined by differentiation of the principle of a prior case or line of cases, or by the aid of
analogies furnished by such prior case. In balancing conflicting solutions, that one is perceived to tip
the scales which the court believes will best promote the public welfare in its probable operation as a
general rule or principle. But public policy is not a thing inflexible. No court is wise enough to forecast
its influence in all possible contingencies. Distinctions must be made from time to time as sound
reason and a true sense of justice may dictate."

Our attempt at giving a brief history of the Philippines with reference to the so-called non-Christians
has been in vain, if we fail to realize that a consistent governmental policy has been effective in the
Philippines from early days to the present. The idea to unify the people of the Philippines so that
they may approach the highest conception of nationality. If all are to be equal before the law, all
must be approximately equal in intelligence. If the Philippines is to be a rich and powerful country,
Mindoro must be populated, and its fertile regions must be developed. The public policy of the
Government of the Philippine Islands is shaped with a view to benefit the Filipino people as a whole.
The Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have
said, for their own good and the good of the country.

Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature,
a coordinate branch, be exercised. The whole tendency of the best considered case is toward non-
interference on the part of the courts whenever political ideas are the moving consideration. Justice
Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional law, like other
mortal contrivances, has to take some chances." (Blinn vs.Nelson [1911], 222 U.S., 1.) If in the final
decision of the many grave questions which this case presents, the courts must take "a chance," it
should be with a view to upholding the law, with a view to the effectuation of the general
governmental policy, and with a view to the court's performing its duty in no narrow and bigoted
sense, but with that broad conception which will make the courts as progressive and effective a force
as are the other departments of the Government.

We are of the opinion that action pursuant to section 2145 of the Administrative Code does not
deprive a person of his liberty without due process of law and does not deny to him the equal
protection of the laws, and that confinement in reservations in accordance with said section does not
constitute slavery and involuntary servitude. We are further of the opinion that section 2145 of the
Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian
policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional.

Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore,
not issue. This is the true ruling of the court. Costs shall be taxes against petitioners. So ordered.

Arellano, C.J., Torres and Avanceña, JJ., concur.

Separate Opinions

CARSON, J., concurring:

I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in the prevailing,
opinion.

The words "non-Christian' have a clear, definite and well settled signification when used in the
Philippine statute-book as a descriptive adjective, applied to "tribes," "people," or "inhabitants,"
dwelling in more or less remote districts and provinces throughout the Islands.

Justice Malcolm, as I think, correctly finds that these words, as used in this connection in our statute-
book, denote the 'low grace of civilization" of the individuals included in the class to which they are
applied. To this I would add that the tests for the determination of the fact that an individual or tribes
is, or is not of the "non-Christian" are, and throughout the period of American occupation always
have been, "the mode of life, the degree of advancement in civilization, and connection or lack of
connection with some civilized community." (Cf. letter of Collector of Internal Revenue dated
September 17, 1910, and set out in the principal opinion.)

The legislative and administrative history of the Philippine Islands clearly discloses that the standard
of civilization to which a specific tribe must be found to have advanced, to justify its removal from the
class embraces with the descriptive term "non-Christian," as that term is used in the Philippine
statute-book, is that degree of civilization which results in a mode of life within the tribe, such that it
is feasible and practicable to extend to, and enforce upon its membership the general laws and
regulations, administrative, legislative, and judicial, which control the conduct of the admitted
civilized inhabitants of the Islands; a made of life, furthermore, which does not find expression in
tribal customs or practices which tend to brutalize or debauch the members of the tribe indulging in
such customs or practices, or to expose to loss or peril the lives or property of those who may be
brought in contact with members of the tribe.

So the standard of civilization to which any given number or group of inhabitants of particular
province in these Islands, or any individual member of such a group, must be found to have
advanced, in order to remove such group or individual from the class embraced within the statutory
description of "non-Christian," is that degree of civilization which would naturally and normally result
in the withdrawal by such persons of permanent allegiance or adherence to a "non-Christian" tribe,
had they at any time adhered to or maintained allegiance to such a tribe; and which would qualify
them whether they reside within or beyond the habitat of a "non-Christian" tribe, not only to maintain
a mode of life independent of a apart from that maintain by such tribe, but a mode of life as would
not be inimical to the lives or property or general welfare of the civilized inhabitants of the Islands
with whom they are brought in contact.

The contention that, in this particular case, and without challenging the validity of the statute, the writ
should issue because of the failure to give these petitioners, as well as the rest of the fifteen
thousand Manguianes affected by the reconcentration order, an opportunity to be heard before any
attempt was made to enforce it, begs the question and is, of course, tantamount to a contention that
there is no authority in law for the issuance of such an order.

If the fifteen thousand manguianes affected by the order complained of had attained that degree of
civilization which would have made it practicable to serve notice upon, and give an opportunity for a
real hearing, to all the members of the tribe affected by the order, it may well be doubted whether the
provincial board and the Secretary of the Interior would have been justified in its enforcement By
what proceeding known to the law, or to be specially adopted in a particular case, could the offices
of any province provide for a genuine hearing upon a proposal to issue a reconcentration order upon
a head-hunting tribe in the north of the Island of Luzon; or upon one of the nomadic tribes
whose habitat is in the mountain fastnesses of Mindanao, and whose individual members have no
fixed or known place of residence, or upon the fifteen thousand Manguianes roaming in the wilds of
Mindoro.

Of course, friendly headmen or chief might and, as a rule, should be consulted, after the practice in
the United States when tribes or groups of American Indians have been placed upon reservations;
but since non-Christian head men and chiefs in the Philippines have no lawful authority to bind their
acts or their consent, the objection based on lack of a hearing, would have the same force whether
the issuance of a reconcentration order was or was not preceded by a pow-wow of this kind.

The truth of the mater is that the power to provide for the issuance of such orders rests upon
analogous principles to those upon which the liberty and freedom or action of children and persons
of unsound minds is restrained, without consulting their wishes, but for their own good and the
general welfare. The power rests upon necessity, that "great master of all things," and is properly
exercised only where certain individuals or groups of individual are found to be of such a low grade
of civilization that their own wishes cannot be permitted to determine their mode of life or place of
residence.

The status of the non-Christian inhabitants of these Islands, and the special and necessarily paternal
attitude assume toward them by the Insular Government is well illustrated by the following provisions
found in the Administrative Code of 1917:

SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). — It shall be the
duty of the Bureau of non-Christian tribes to continue the work for advancement and liberty in
favor of the regions inhabited by non-Christian Filipinos and to foster by all adequate means
and in a systematic, rapid, and completely manner the moral, material, economic, social and
political development of those regions, always having in view the aim of rendering permanent
the mutual intelligence between and complete fusion of all the Christian and non-Christian
elements populating the provinces of the Archipelago.
 SEC. 2116. Township and settlement fund. — There shall be maintained in the provincial
treasuries of the respective specially organized provinces a special fund to be known as the
township and settlement fund, which shall be available, exclusively, for expenditures for the
benefit of the townships and settlements of the province, and non-Christian inhabitants of the
province, upon approval of the Secretary of the Interior.

As I understand it, the case at bar does not raise any real question as to the jurisdiction of the courts
of these Islands in habeas corpus proceedings, to review the action of the administrative authorities
in the enforcement of reconcentration orders issued, under authority of section 2145 of the
Administrative Code, against a petitioner challenging the alleged fact that he is a "non-Christian" as
that term is used in the statute. I, therefore, express no opinion on that question at this time.

JOHNSON, J., dissenting:

I dissent. The petitioners were deprived of their liberty without a hearing. That fact is not denied. I
cannot give my consent to any act which deprives the humblest citizen of his just liberty without a
hearing, whether he be a Christian or non-Christian. All persons in the Philippine Islands are entitled
to a hearing, at least, before they are deprived of their liberty.

MOIR, J., dissenting:

I dissent.

I realize that a dissenting opinion carries little weight, but may sense of justice will not permit me to
let this decision go on record without expressing may strong dissent from the opinion of Justice
Malcolm, concurred in by a majority of the court. I shall not attempt to analyze the opinion or to go
into the question in detail. I shall simply state, as briefly as may be, the legal and human side of the
case as it presents itself to my mind.

The facts are that one Rubi and various other Manguianes in the Province of Mindoro were ordered
by the Provincial governor of Mindoro to remove their residence from their native habitat and to
establish themselves on a reservation at Tigbao in the Province of Mindoro and to remain there, or
be punished by imprisonment if they escaped. This reservation, as appears from the resolution of
the provincial board, extends over an area of 800 hectares of land, which is approximately 2,000
acres, on which about three hundred manguianes are confined. One of the Manguianes, Dabalos,
escaped from the reservation and was taken in hand by the provincial sheriff and placed in prision at
Calapan, solely because he escaped from the reservation. The Manguianes used out a writ
of habeas corpus in this court, alleging that they are deprived of their liberty in violation of law.

The Solicitor-General of the Philippine Islands makes return to the writ copied in the majority opinion
which states that the provincial governor of Mindoro with the prior approval of his act by the
Department Secretary ordered the placing of the petitioners and others on a reservation.

The manguianes, it is stated on page 694 of the majority opinion, "are very low in culture. They have
considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are
peaceful, timid, primitive, seminomadic people. They number approximately 15,000 (?). The
manguianes have shown no desire for community life, and, as indicated in the preamble to Act No.
547, have no progressed sufficiently in civilization to make it practicable to bring them under any for
of municipal government."

It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro (not including
smaller islands which together make the Province of Mindoro) has an area of 3,851 square miles
and a populations of 28, 361 of which 7, 369 are wild or uncivilized tribes (Manguianes). This
appears to be the total Mangyan population of the province. The total population was less than
seven to the mile (Vol. 2, P.I. Census, pp. 30 and 407).

The Island is fertile, heavily wooded and well watered.

It has no savage population, but it is sparsely settled by Christian Filipinos along the coast and by
Manguianes.

The Manguianes roamed its mountains and valleys, fishing and hunting at will long before
Magallanes [Magellan] anchored his boats in the water of Cebu. They have made little or no
progress in the ways of civilization. "They are a peaceful, timid, primitive, seminomadic people,"
whom the Government of the Philippines Islands would bring under the beneficient influence of
civilization and progress.

The law provides for it in section 2145 of the Administrative Code, and for those who like Dadalos do
not take kindly to the ways provided for civilizing them section 2759 provides the punishment.

The attorney for the petitioners has raised various constitutional questions, but only the fundamental
one will be considered by me. It is that the sections of the Administrative Code, 2145 and 2759,
quoted in the majority opinion, are in violation of the first paragraph of section 3 of the Act of
Congress of August 29, 1916, which reads as follows:

That no law shall be enacted in said Islands which shall deprive any person of life, liberty or
property without due process of law, or deny to any person therein the equal protection of the
laws.

It is not necessary to argue that a Mangyan is one of the persons protected by that provision.

The Attorney-General argues that the treatment provided for the Manguianes is similar to that
accorded the Indians in the United States, and reference is made all through the court's decision to
the decisions of the United States Supreme Court with reference to the Indians. It is not considered
necessary to go into these cases for the simple reason that all the Indians nations in the United
States were considered as separate nations and all acts taken in regard to them were the result of
separate treaties made by the United States Government with the Indian nations, and, incompliance
with these treaties, reservations were set apart for them on which they lived and were protected form
intrusion and molestation by white men. Some these reservations were larger than the Islands of
Luzon, and they were not measured in hectares but in thousands of square miles.

The Manguianes are not a separate state. They have no treaty with the Government of the
Philippine Islands by which they have agreed to live within a certain district where they are accorded
exclusive rights. They are citizens of the Philippine Islands. Legally they are Filipinos. They are
entitled to all the rights and privileges of any other citizen of this country. And when the provincial
governor of the Province of Mindoro attempted to take them from their native habitat and to hold
them on the little reservation of about 800 hectares, he deprived them of their rights and their liberty
without due process of law, and they were denied the equal protection of the law.

The majority opinion says "they are restrained for their own good and the general good of the
Philippines."

They are to be made to accept the civilization of the more advanced Filipinos whether they want it or
not. They are backward and deficient in culture and must be moved from their homes, however
humble they may be and "bought under the bells" and made to stay on a reservation.

Are these petitioners charged with any crime? There is no mention in the return of the Solicitor-
General of the Philippine Islands of any crime having been committed by these "peacefully, timid,
primitive, semi-nomadic people."

A memorandum of the Secretary of the Interior of the Philippine Islands is copied in extenso in the
majority opinion, and from it I gather the nature of their offense which is that —

Living a nomadic and wayfaring life and evading the influence of civilization, they (the
manguianes) are engaged in the works of destruction — burning and destroying the forests
and making illegal caiñgins thereon. No bringing any benefit to the State but, instead, injuring
and damaging its interests, what will ultimately become of those people with the sort of
liberty they wish to preserve and for which they are not fighting in court? They will ultimately
become a heavy burden to the State and, on account of their ignorance, they will commit
crimes and make depredations, or if not they will be subjected to involuntary servitude by
those who may want to abuse them.

There is no doubt in my mind that this people has not a right conception of liberty and does
not practice liberty in a rightful way. They understand liberty as the right to do anything they
will — going from one place to another in the mountains, burning and destroying forests and
making illegal caiñgins thereon.

Not knowing what true liberty is and not practising the same rightfully, how can they are
being deprived thereof without due process of law?

xxx xxx xxx

But does the constitutional guaranty that "no person shall be deprived of his liberty without
due process of law" apply to a class of persons who do not have a correct idea of what
liberty is and do not practise liberty in a rightful way?

To say that it does will mean to sanction and defend an erroneous idea of such class of
persons as to what liberty is. It will mean, in the case at bar, that the Government should not
adopt any measures looking to the welfare and advancement of the class of persons in
question. It will mean that this people be let alone in the mountains and in a permanent state
of savagery without even the remotest hope of coming to understand liberty in its true and
noble sense.

In dealing with the backward population, like the Manguianes, the Government has been
placed in the alternative of either letting them alone or guiding them in the path of civilization.
The latter measure was adopted as the one more in accord with humanity and with national
conscience.
 xxx xxx xxx

The national legislation on the subject of non-Christian people has tended more and more
towards the education and civilization of such people and fitting them to be citizens.

There appear to be two intimations or charges in this memorandum; one is that the Manguianes
destroy the forest by making a caiñgin. What is a "caiñgin?" Simply this. These people move their
camp or place of abode frequently and when they do move to a new place, it is necessary to clear
the land in order to plant corn and camotes (sweet potatoes) and they cut down the smaller trees
and burn these around the larger ones, killing them, so that they can plant their crops. The fires
never spread in the tropical undergrowth of an island like Mindoro, but the trees within
the caiñgin are killed and crops are planted and harvested. This land may be abandoned later on —
due to superstition, to a lack of game in the neighborhood, to poor crops from exhausted fertility, or
to a natural desire to move on.

Granting that the Manguianes do make caiñgins or clear lands in spots and then abandon them for
the more fertile lands, which every man knows to be just over the hills, we cannot see that they are
committing such a great abuse as to justify incarcerating them on a small tract of land — for
incarceration it is and nothing less.

The second intimation or charge is that "they will become a heavy burden to the state and on
account of their ignorance they will commit crimes and make depredations, or if not they will be
subjected to involuntary servitude by those who want to abuse them." They have never been a
burden to the state and never will be. They have not committed crimes and, when they do, let the
law punish them." The authorities are anticipating too much from these "peaceful, timid, primitive,
semi-nomadic people." Their history does not demonstrate that we must expect them to commit
crimes and jail them to prevent the possibility. But the Secretary says "they will be subjected to
involuntary servitude by those want to abuse them." Are they more liable to be subjected to
involuntary servitude when left free to roam their native hills and gain a livelihood as they have been
accustomed to for hundreds of years, than they will be if closely confined on a narrow reservation
from which they may not escape without facing a term in jail? Is not more likely that they will be glad
to exchange their "freedom" on a small reservation for the great boon of binding themselves and
their children to the more fortunate Christian Filipinos who will feed them and clothe them in return of
their services.?

It think it not only probable but almost a certainty that they will be all be subjected to involuntary
personal servitude if their freedom is limited as it has been. How will they live? There may be
persons who are willing to lend them money with which to buy food on the promise that they will
work for them. And if they accept the loan and do not work for the lender we have another law on the
statute books, Act No. 2098, into whose noose they run their necks, and they may be fined not more
than two hundred pesos or imprisonment for not exceeding six months or both, and when the
sentence expires they must again go into debt or starve, and if they do not work will again go to jail,
and this maybe repeated till they are too old to work and are cast adrift.

The manguianes have committed no offenses and are charged with none. It does not appear they
were ever consulted about their reconcentration. It does not appear that they had any hearing or
were allowed to make any defense. It seems they were gathered here and there whenever found by
the authorities of the law and forcibly placed upon the reservation, because they are "non-Christian,"
and because the provincial governor ordered it. Let it be clear there is no discrimination because
of religion. The term "non-Christian" means one who is not a Christian Filipino, but it also means any
of the so-called "wild" or backward tribes of the Philippines. These non-Christian tribes are Moros,
Igorrotes, Bukidnons, Ifugaos, Manguianes and various others, about one millions souls all together.
Some of them, like the Moros, Tinguianes and Ifugaos, have made great progress in civilization. The
have beautiful fields reclaimed by hard labor — they have herds of cattle and horses and some few
of them are well educated. Some of the non-Christians, like the Aetas and the Negritos, are very low
in the scale of civilization, but they are one and all "non-Christians," as the term is used and
understood in law and in fact.

All of them, according to the court's opinion under the present law, may be taken from their homes
and herded on a reservation at the instance of the provincial governor, with the prior approval of the
department head. To state such a monstrous proposition is to show the wickedness and illegality of
the section of the law under which these people are restrained of their liberty. But it is argued that
there is no probability of the department head ever giving his approval to such a crime, but the fact
that he can do it and has done it in the present case in what makes the law unconstitutional. The
arbitrary and unrestricted power to do harm should be the measure by which a law's legality is tested
and not the probability of doing harm.

It has been said that this is a government of laws and not of men; that there is no arbitrary
body of individuals; that the constitutional principles upon which our government and its
institutions rest do not leave room for the play and action of purely personal and arbitrary
power, but that all in authority are guided and limited by these provisions which the people
have, the through the organic law, declared shall be the measure and scope of all control
exercised over them. In particular the fourteenth amendment, and especially the equal
protection clause, thereof, forbids that the individual shall be subjected to any arbitrary
exercise of the powers of government; it was intended to prohibit, and does prohibit, any
arbitrary deprivation of life or liberty, or arbitrary spoliation of property.

As we have seen, a statute which makes a purely arbitrary or unreasonable classification, or

which singles out any particular individuals or class as the subject of hostile and
discriminating legislation, is clearly unconstitutional as being opposed to the fourteenth
amendment and especially to the equal protection clause thereof. This is a plain case, and
requires no further discussion. (Vol. 4, Encyclopedia of U.S. Supreme Court Reports, p.
366.)

When we consider the nature and the theory of our institutions of government, the principles
upon which they are supposed to rest, and review the history of their development, we are
constrained to conclude that they do not mean to leave room for the play and action of purely
personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for its is the
author and source of law; but in our system, while sovereign powers are delegated to the
agencies of government, sovereignty itself remains with the people, by whom and for whom
all government exists and acts. And the law is the definition and limitation of power. It is,
indeed, quite true, that there must always be lodged somewhere, and in some person or
body, the authority of final decision; and, in many cases of mere administration the
responsibility is purely political, no appeal lying except to the ultimate tribunal of the public
judgment, exercised either in the pressure of opinion or by means of the suffrage. But the
fundamental rights to life, liberty, and the pursuit of happiness, considered as individual
possessions, are secured by those maxims of constitutional law which are the monuments
showing the victorious progress of the race in securing to men the blessings of civilization
under the reign of just and equal laws, so that, in the famous language of Massachusetts Bill
of Rights, the Government of Commonwealth "may be a government of law and not of men."
For the very idea that one man may be compelled to hold his life, or the means of living, or
any material right essential to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the essence of slavery itself.
(Yick Wo vs. Hopkins, 118 U.S., 374.)
It is said that the present law is an old Act being substance Act No. 547 of the Philippine
Commission. But it has never been brought before this court for determination of its constitutionality.
No matter how beneficient the motives of the lawmakers if the lawmakers if the law tends to deprive
any man of life, liberty, or property without due process law, it is void.

In may opinion the acts complained of which were taken in conformity with section 2145 of the
Administrative Code not only deprive these Manguianes of their liberty, without due process of law,
but will in all probability deprive them of their life, without due process of law. History teaches that to
take a semi-nomadic tribe from their native fastnesses and to transfer them to the narrow confines of
a reservation is to invite disease an suffering and death. From my long experience in the Islands, I
should say that it would be a crime of title less magnitude to take the Ifugaos from their mountain
homes where they have reclaimed a wilderness and made it a land of beauty and fruitfulness and to
transfer them to the more fertile, unoccupied, malaria infested valleys which they look down upon
from their fields — than it would be to order their decapitation en masse.

There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are in exactly the
same category as the Manguianes. If the Manguianes may be so taken from their native habitat and
reconcentrated on a reservation — in effect an open air jail — then so may the Ifugaos, so may the
Tinguianes, who have made more progress than the Ifugaos, and so may the Moros.

There are "non-Christian" in nearly every province in the Philippine Islands. All of the thirty-nine
governors upon the prior approval of the head of the department, have the power under this law to
take the non-Christian inhabitants of their different provinces form their homes and put them on a
reservation for "their own good and the general good of the Philippines," and the court will grant
them no relief. These unfortunate citizens of the Philippine Islands would hold their liberty, and their
lives, may be, subject to the unregulated discretion of the provincial governor.

And who would be safe?

After the reservation is once established might not a provincial governor decide that some political
enemy was a non-Christian, and that he would be safer on the reservation. No matter what his
education and culture, he could have no trial, he could make no defense, the judge of the court
might be in a distant province and not within reach, and the provincial governor's fiat is final.

The case of the United States vs. Crook (Federal Cases 14891), cited in the majority opinion, should
be quoted at length. District Judge Dundy said:

During the fifteen years in which I have been engaged in administering the laws of my
country, I have never been called upon to hear or decide a case that appealed so strongly to
my sympathy as the one now under consideration. On the one side, we have a few of the
remnants of a once numerous and powerful, but now weak, insignificant, unlettered, and
generally despised race; and the other, we have the representative of one of the most
powerful, most enlightened, and most christianized nations of modern times. On the one
side, we have the representatives of this wasted race coming into this national tribunal of
ours, asking for justice and liberty to enable them to adopt our boasted civilization, and to
pursue the arts of peace, which have made us great and happy as a nation; on the other
side, we have this magnificent, if not magnanimous, government, resisting this application
with the determination of sending these people back to the country which is to them less
desirable perpetual imprisonment in their own native land. But I think it is creditable to the
heart and mind of the brave and distinguished officer who is made respondent herein to say
that he has no sort of sympathy in the business in which he is forced by his position to bear a
part so conspicuous; and, so far as I am individually concerned, I think it not improper to say
that, if the strongest possible sympathy could give the relators title to freedom, they would
have been restored to liberty the moment the arguments in their behalf were closed. no
examination or further thought would then have been necessary or expedient. But in a
country where liberty is regulated by law, something more satisfactory and enduring than
mere sympathy must furnish and constitute the rule and basis of judicial action. It follows that
this case must be examined and decided on principles of law, and that unless the relators
are entitled to their discharge under the constitution or laws of the United States, or some
treaty, they must be remanded to the custody of the officer who caused their arrest, to be
returned to the Indian Territory which they left without the consent of the government.

On the 8th of April, 1879, the relators Standing Bear and twenty-five others, during the
session of the court held at that time of Lincoln, presented their petition, duly verified, praying
for the allowance of a writ of habeas corpus and their final discharged from custody
thereunder.

The petition alleges, in substance, that the relators are Indians who have formerly belonged
to the Ponca tribe of Indians now located in the Indian Territory; that they had some time
previously withdrawn from the tribe, and completely severed their tribal relations therewith,
and had adopted the general habits of the whites, and were then endeavoring to maintain
themselves by their own exertions, and without aid or assistance from the general
government; that whilst they were thus engaged, and without being guilty of violating any of
the laws of the United States, they were arrested and restrained of their liberty by order of
the respondent, George Crook.

The writ was issued and served on the respondent on the 8th day of April, and, the distance
between the place where the writ was made returnable and the place where the relators
were confined being more than twenty miles, ten days were alloted in which to make return.

On the 18th of April the writ was returned, and the authority for the arrest and detention is
therein shown. The substance of the return to the writ, and the additional statement since
filed, is that the relators are individual members of, and connected with, the Ponca Tribe of
Indians; that they had fled or escaped from a reservation situated in some place within the
limits of the indian Territory — had departed therefrom without permission from the
government; and, at the request of the secretary of the interior, the general of the army had
issued an order which required the respondent to arrest and return the relators to their tribe
in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be
arrested on the Omaha Indian reservation, and that they were in his custody for the purpose
of being returned to the Indian Territory.

It is claimed upon the one side, and denied upon the other, that the relators had withdrawn
and severed, for all time, their connection with the tribe to which they belonged; and upon
this point alone was there any testimony produced by either party hereto. The other matter
stated in the petition and the return to the writ are conceded to be true; so that the questions
to be determined are purely questions of law.

On the 8th of Mar, 1859, a treaty was made by the United States with the Ponca tribe of
Indians, by which a certain tract of country, north of the Niobrara river and west of the
Missouri, was set apart for the permanent home of the aid Indians, in which the government
agreed to protect them during their good behaviour. But just when or how, or why, or under
what circumstances, the Indians left their reservation in Dakota and went to the Indian
Territory does not appear.
 xxx xxx xxx

A question of much greater importance remains for consideration, which, when determined,
will be decisive of this whole controversy. This relates to the right of the government to arrest
and hold the relators for a time, for the purpose of being returned to a point in the Indian
Territory from which it is alleged the Indians escaped. I am not vain enough to think that I can
do full justice to a question like the one under consideration. But, as the mater furnishes so
much valuable material for discussion, and so much food for reflection, I shall try to present it
as viewed from my own standpoint, without reference to consequences or criticisms, which,
though not specially invited, will be sure to follow.

xxx xxx xxx

On the 15th day of August, 1876, congress passed the general Indian appropriation bill, and
in it we find a provision authorizing the secretary of the interior to use $25,000 for the
removal of the Poncas to the Indian Territory, and providing them a home therein, with
consent of the tribe. (19 Sta., 192.)

xxx xxx xxx

The Poncas lived upon their reservation in southern Dakota, and cultivated a portion of the
same, until two or three years ago, when they removed therefrom, but whether by force or
otherwise does not appear. At all event, we find a portion of them, including the relators,
located at some point in the Indian Territory. There, the testimony seems to show, is where
the trouble commenced. Standing Bear, the principal witness, states that out of five hundred
and eighty-one Indians who went from the reservation in Dakota to the Indian Territory, one
hundred and fifty-eight died within a year or so, and a great proportion of the others were
sick and disabled, caused, in a great measure, no doubt, from change of climate; and to
save himself and the survivors of his wasted family, and the feeble remnant of his little band
of followers, he determined to leave the Indian Territory and return to his old home, where, to
use his own language, "he might live and die in peace, and be buried with his fathers." He
also stated that he informed the agent of their final purpose to leave, never to return, and that
he and his followers had finally, fully, and forever severed his and their connection with the
Ponca tribe of Indians, and had resolved to disband as a tribe, or band of Indians, and to cut
loose from the government, go to work, become self-sustaining, and adopt the habits and
customs of a higher civilization. To accomplish what would seem to be a desirable and
laudable purpose, all who were able to do so went to work to earn a living. The Omaha
Indians, who speak the same language, and with whom many of the Poncas have long
continued to intermarry, gave them employment and ground to cultivate, so as to make them
self-sustaining. And it was when at the Omaha reservation, and when thus employed, that
they were arrested by order of the government, for the purpose of being taken back to the
Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or
necessity, of removing them by force from their own native plains and blood relations to a
far-off country, in which they can see little but new-made graves opening for their reception.
The land from which they fled in fear has no attractions for them. The love of home and
native land was strong enough in the minds of these people to induce them to brave every
peril to return and live and die where they had been reared. The bones of the dead son of
Standing Bear were not to repose in the land they hoped to be leaving forever, but were
carefully preserved and protected and formed a part of what was to them melancholy
procession homeward. Such instances of parental affections, and such love home and native
land, may be heathen in origin, but it seems to that they are not unlike Christian in principle.
And the court declared that the Indians were illegally held by authority of the United States and in
violation of their right to life, liberty, and the pursuit of happiness, and ordered their release from
custody.

This case is very similarly to the case of Standing Bear and others.

I think this Court should declare that section 2145 and 2759 of the Administrative Code of 1917 are
unconstitutional, null and void, and that the petitioners are illegally restrained of their liberty, and that
they have been denied the equal protection of the law, and order the respondents immediately to
liberate all of the petitioners.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 100150 January 5, 1994

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO

OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN
DOES, respondents.

The City Attorney for petitioners.

The Solicitor General for public respondent.

VITUG, J.:

The extent of the authority and power of the Commission on Human Rights ("CHR") is again placed
into focus in this petition for prohibition, with prayer for a restraining order and preliminary injunction.
The petitioners ask us to prohibit public respondent CHR from further hearing and investigating CHR
Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al."

The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos Quimpo (one
of the petitioners) in his capacity as an Executive Officer of the Quezon City Integrated Hawkers
Management Council under the Office of the City Mayor, was sent to, and received by, the private
respondents (being the officers and members of the North EDSA Vendors Association,
Incorporated). In said notice, the respondents were given a grace-period of three (3) days (up to 12
July 1990) within which to vacate the questioned premises of North EDSA.1Prior to their receipt of
the demolition notice, the private respondents were informed by petitioner Quimpo that their stalls
should be removed to give way to the "People's Park".2 On 12 July 1990, the group, led by their
President Roque Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay) with the
CHR against the petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a letter to
be addressed to then Mayor Brigido Simon, Jr., of Quezon City to stop the demolition of the private
respondents' stalls, sari-sari stores, and carinderia along North EDSA. The complaint was docketed
as CHR Case No. 90-1580.3 On 23 July 1990, the CHR issued an Order, directing the petitioners "to
desist from demolishing the stalls and shanties at North EDSA pending resolution of the
vendors/squatters' complaint before the Commission" and ordering said petitioners to appear before
the CHR.4

On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as well
as CHR's own ocular inspection, and convinced that on 28 July 1990 the petitioners carried out the
demolition of private respondents' stalls, sari-sari stores and carinderia,5 the CHR, in its resolution of
1 August 1990, ordered the disbursement of financial assistance of not more than P200,000.00 in
favor of the private respondents to purchase light housing materials and food under the
Commission's supervision and again directed the petitioners to "desist from further demolition, with
the warning that violation of said order would lead to a citation for contempt and arrest."6

A motion to dismiss,7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also
averred, among other things, that:

1. this case came about due to the alleged violation by the (petitioners) of the Inter-
Agency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a
moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila;

xxx xxx xxx

3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to

therein refers to moratorium in the demolition of the structures of poor dwellers;

4. that the complainants in this case (were) not poor dwellers but independent
business entrepreneurs even this Honorable Office admitted in its resolution of 1
August 1990 that the complainants are indeed, vendors;

5. that the complainants (were) occupying government land, particularly the sidewalk
of EDSA corner North Avenue, Quezon City; . . . and

6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and
authority whether or not a certain business establishment (should) be allowed to
operate within the jurisdiction of Quezon City, to revoke or cancel a permit, if already
issued, upon grounds clearly specified by law and ordinance.8

During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the
motion to dismiss set for 21 September 1990 had yet to be resolved. The petitioners likewise
manifested that they would bring the case to the courts.

On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that
the Commission's authority should be understood as being confined only to the investigation of
violations of civil and political rights, and that "the rights allegedly violated in this case (were) not civil
and political rights, (but) their privilege to engage in business."9

On 21 September 1990, the motion to dismiss was heard and submitted for resolution, along with
the contempt charge that had meantime been filed by the private respondents, albeit vigorously
objected to by petitioners (on the ground that the motion to dismiss was still then unresolved).10
In an Order,11 dated 25 September 1990, the CHR cited the petitioners in contempt for carrying out
the demolition of the stalls, sari-sari stores and carinderia despite the "order to desist", and it
imposed a fine of P500.00 on each of them.

On 1 March 1991,12 the CHR issued an Order, denying petitioners' motion to dismiss and
supplemental motion to dismiss, in this wise:

Clearly, the Commission on Human Rights under its constitutional mandate had
jurisdiction over the complaint filed by the squatters-vendors who complained of the
gross violations of their human and constitutional rights. The motion to dismiss
should be and is hereby DENIED for lack of merit.13

The CHR opined that "it was not the intention of the (Constitutional) Commission to create only a
paper tiger limited only to investigating civil and political rights, but it (should) be (considered) a
quasi-judicial body with the power to provide appropriate legal measures for the protection of human
rights of all persons within the Philippines . . . ." It added:

The right to earn a living is a right essential to one's right to development, to life and
to dignity. All these brazenly and violently ignored and trampled upon by respondents
with little regard at the same time for the basic rights of women and children, and
their health, safety and welfare. Their actions have psychologically scarred and
traumatized the children, who were witness and exposed to such a violent
demonstration of Man's inhumanity to man.

In an Order,14 dated 25 April 1991, petitioners' motion for reconsideration was denied.

Hence, this recourse.

The petition was initially dismissed in our resolution15 of 25 June 1991; it was subsequently
reinstated, however, in our resolution16 of 18 June 1991, in which we also issued a temporary
restraining order, directing the CHR to "CEASE and DESIST from further hearing CHR No. 90-
1580."17

The petitioners pose the following:

Whether or not the public respondent has jurisdiction:

a) to investigate the alleged violations of the "business rights" of the private respondents whose
stalls were demolished by the petitioners at the instance and authority given by the Mayor of Quezon
City;

b) to impose the fine of P500.00 each on the petitioners; and

c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the demolition.

In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing his
comment for public respondent CHR. The latter thus filed its own comment,18 through Hon. Samuel
Soriano, one of its Commissioners. The Court also resolved to dispense with the comment of private
respondent Roque Fermo, who had since failed to comply with the resolution, dated 18 July 1991,
requiring such comment.
The petition has merit.

The Commission on Human Rights was created by the 1987

Constitution.19 It was formally constituted by then President Corazon Aquino via Executive Order No.
163,20 issued on 5 May 1987, in the exercise of her legislative power at the time. It succeeded, but so
superseded as well, the Presidential Committee on Human Rights.21

The powers and functions22 of the Commission are defined by the 1987 Constitution, thus: to —

(1) Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human
rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to

enhance respect for the primacy of human rights;

(6) Recommend to the Congress effective measures to promote human rights and to
provide for compensation to victims of violations of human rights, or their families;

(7) Monitor the Philippine Government's compliance with international treaty

obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine
the truth in any investigation conducted by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the
intention of the members of the Constitutional Commission is to make CHR a quasi-judicial
body.23 This view, however, has not heretofore been shared by this Court. In Cariño v. Commission
on Human Rights,24 the Court, through then Associate Justice, now Chief Justice Andres Narvasa,
has observed that it is "only the first of the enumerated powers and functions that bears any
resemblance to adjudication or adjudgment," but that resemblance can in no way be synonymous to
the adjudicatory power itself. The Court explained:
 . . . (T)he Commission on Human Rights . . . was not meant by the fundamental law
to be another court or quasi-judicial agency in this country, or duplicate much less
take over the functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative power
is that it may investigate, i.e., receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political rights. But fact finding is
not adjudication, and cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or official. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving evidence and making
factual conclusions in a controversy must be accompanied by the authority of
applying the law to those factual conclusions to the end that the controversy may be
decided or determined authoritatively, finally and definitively, subject to such appeals
or modes of review as may be provided by law. This function, to repeat, the
Commission does not have.

After thus laying down at the outset the above rule, we now proceed to the other kernel of this
controversy and, its is, to determine the extent of CHR's investigative power.

It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to
define it, albeit not a few have tried, could at best be described as inconclusive. Let us observe. In a
symposium on human rights in the Philippines, sponsored by the University of the Philippines in
1977, one of the questions that has been propounded is "(w)hat do you understand by "human
rights?" The participants, representing different sectors of the society, have given the following
varied answers:

Human rights are the basic rights which inhere in man by virtue of his humanity. They
are the same in all parts of the world, whether the Philippines or England, Kenya or
the Soviet Union, the United States or Japan, Kenya or Indonesia . . . .

Human rights include civil rights, such as the right to life, liberty, and property;
freedom of speech, of the press, of religion, academic freedom, and the rights of the
accused to due process of law; political rights, such as the right to elect public
officials, to be elected to public office, and to form political associations and engage
in politics; and social rights, such as the right to an education, employment, and
social services.25

Human rights are the entitlement that inhere in the individual person from the sheer
fact of his humanity. . . . Because they are inherent, human rights are not granted by
the State but can only be recognized and protected by it.26

(Human rights include all) the civil, political, economic, social, and cultural rights
defined in the Universal Declaration of Human Rights.27

Human rights are rights that pertain to man simply because he is human. They are
part of his natural birth, right, innate and inalienable.28

The Universal Declaration of Human Rights, as well as, or more specifically, the International
Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political
Rights, suggests that the scope of human rights can be understood to include those that relate to an
individual's social, economic, cultural, political and civil relations. It thus seems to closely identify the
term to the universally accepted traits and attributes of an individual, along with what is generally
considered to be his inherent and inalienable rights, encompassing almost all aspects of life.

Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional
Commission in adopting the specific provisions on human rights and in creating an independent
commission to safeguard these rights? It may of value to look back at the country's experience under
the martial law regime which may have, in fact, impelled the inclusions of those provisions in our
fundamental law. Many voices have been heard. Among those voices, aptly represented perhaps of
the sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an
advocate of civil liberties, who, in his paper, entitled "Present State of Human Rights in the
Philippines,"29 observes:

But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights
most of the human rights expressed in the International Covenant, these rights
became unavailable upon the proclamation of Martial Law on 21 September 1972.
Arbitrary action then became the rule. Individuals by the thousands became subject
to arrest upon suspicion, and were detained and held for indefinite periods,
sometimes for years, without charges, until ordered released by the Commander-in-
Chief or this representative. The right to petition for the redress of grievances
became useless, since group actions were forbidden. So were strikes. Press and
other mass media were subjected to censorship and short term licensing. Martial law
brought with it the suspension of the writ of habeas corpus, and judges lost
independence and security of tenure, except members of the Supreme Court. They
were required to submit letters of resignation and were dismissed upon the
acceptance thereof. Torture to extort confessions were practiced as declared by
international bodies like Amnesty International and the International Commission of
Jurists.

Converging our attention to the records of the Constitutional Commission, we can see the following
discussions during its 26 August 1986 deliberations:

MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the
importance of human rights and also because civil and political rights have been
determined by many international covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent
legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its
impact and the precise nature of its task, hence, its effectivity would also be curtailed.

So, it is important to delienate the parameters of its tasks so that the commission can
be most effective.

MR. BENGZON. That is precisely my difficulty because civil and political rights are
very broad. The Article on the Bill of Rights covers civil and political rights. Every
single right of an individual involves his civil right or his political right. So, where do
we draw the line?

MR. GARCIA. Actually, these civil and political rights have been made clear in the
language of human rights advocates, as well as in the Universal Declaration of
Human Rights which addresses a number of articles on the right to life, the right
against torture, the right to fair and public hearing, and so on. These are very specific
rights that are considered enshrined in many international documents and legal
instruments as constituting civil and political rights, and these are precisely what we
want to defend here.

MR. BENGZON. So, would the commissioner say civil and political rights as defined
in the Universal Declaration of Human Rights?

MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and
Political Rights distinguished this right against torture.

MR. BENGZON. So as to distinguish this from the other rights that we have?

MR. GARCIA. Yes, because the other rights will encompass social and economic
rights, and there are other violations of rights of citizens which can be addressed to
the proper courts and authorities.

xxx xxx xxx

MR. BENGZON. So, we will authorize the commission to define its functions, and,
therefore, in doing that the commission will be authorized to take under its wings
cases which perhaps heretofore or at this moment are under the jurisdiction of the
ordinary investigative and prosecutorial agencies of the government. Am I correct?

MR. GARCIA. No. We have already mentioned earlier that we would like to define
the specific parameters which cover civil and political rights as covered by the
international standards governing the behavior of governments regarding the
particular political and civil rights of citizens, especially of political detainees or
prisoners. This particular aspect we have experienced during martial law which we
would now like to safeguard.

MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are
really trying to say is, perhaps, at the proper time we could specify all those rights
stated in the Universal Declaration of Human Rights and defined as human rights.
Those are the rights that we envision here?

MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.

MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill
of Rights covered by human rights?

MR. GARCIA. No, only those that pertain to civil and political rights.

xxx xxx xxx

MR. RAMA. In connection with the discussion on the scope of human rights, I would
like to state that in the past regime, everytime we invoke the violation of human
rights, the Marcos regime came out with the defense that, as a matter of fact, they
had defended the rights of people to decent living, food, decent housing and a life
consistent with human dignity.
So, I think we should really limit the definition of human rights to political rights. Is
that the sense of the committee, so as not to confuse the issue?

MR. SARMIENTO. Yes, Madam President.

MR. GARCIA. I would like to continue and respond also to repeated points raised by
the previous speaker.

There are actually six areas where this Commission on Human Rights could act
effectively: 1) protection of rights of political detainees; 2) treatment of prisoners and
the prevention of tortures; 3) fair and public trials; 4) cases of disappearances; 5)
salvagings and hamletting; and 6) other crimes committed against the religious.

xxx xxx xxx

The PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Thank You Madam President.

I would like to start by saying that I agree with Commissioner Garcia that we
should, in order to make the proposed Commission more effective, delimit as much
as possible, without prejudice to future expansion. The coverage of the concept and
jurisdictional area of the term "human rights". I was actually disturbed this morning
when the reference was made without qualification to the rights embodied in the
universal Declaration of Human Rights, although later on, this was qualified to refer
to civil and political rights contained therein.

If I remember correctly, Madam President, Commissioner Garcia, after mentioning

the Universal Declaration of Human Rights of 1948, mentioned or linked the concept
of human right with other human rights specified in other convention which I do not
remember. Am I correct?

MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of

1985?

MR. GUINGONA. I do not know, but the commissioner mentioned another.

MR. GARCIA. Madam President, the other one is the International Convention on
Civil and Political Rights of which we are signatory.

MR. GUINGONA. I see. The only problem is that, although I have a copy of the
Universal Declaration of Human Rights here, I do not have a copy of the other
covenant mentioned. It is quite possible that there are rights specified in that other
convention which may not be specified here. I was wondering whether it would be
wise to link our concept of human rights to general terms like "convention," rather
than specify the rights contained in the convention.

As far as the Universal Declaration of Human Rights is concerned, the Committee,

before the period of amendments, could specify to us which of these articles in the
Declaration will fall within the concept of civil and political rights, not for the purpose
of including these in the proposed constitutional article, but to give the sense of the
Commission as to what human rights would be included, without prejudice to
expansion later on, if the need arises. For example, there was no definite reply to the
question of Commissioner Regalado as to whether the right to marry would be
considered a civil or a social right. It is not a civil right?

MR. GARCIA. Madam President, I have to repeat the various specific civil and
political rights that we felt must be envisioned initially by this provision — freedom
from political detention and arrest prevention of torture, right to fair and public trials,
as well as crimes involving disappearance, salvagings, hamlettings and collective
violations. So, it is limited to politically related crimes precisely to protect the civil and
political rights of a specific group of individuals, and therefore, we are not opening it
up to all of the definite areas.

MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer
linking his concept or the concept of the Committee on Human Rights with the so-
called civil or political rights as contained in the Universal Declaration of Human
Rights.

MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I
was referring to an international instrument.

MR. GUINGONA. I know.

MR. GARCIA. But it does not mean that we will refer to each and every specific
article therein, but only to those that pertain to the civil and politically related, as we
understand it in this Commission on Human Rights.

MR. GUINGONA. Madam President, I am not even clear as to the distinction

between civil and social rights.

MR. GARCIA. There are two international covenants: the International Covenant and
Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights. The second covenant contains all the different rights-the rights of
labor to organize, the right to education, housing, shelter, et cetera.

MR. GUINGONA. So we are just limiting at the moment the sense of the committee
to those that the Gentlemen has specified.

MR. GARCIA. Yes, to civil and political rights.

MR. GUINGONA. Thank you.

xxx xxx xxx

SR. TAN. Madam President, from the standpoint of the victims of human rights, I
cannot stress more on how much we need a Commission on Human Rights. . . .

. . . human rights victims are usually penniless. They cannot pay and very few
lawyers will accept clients who do not pay. And so, they are the ones more abused
and oppressed. Another reason is, the cases involved are very delicate — torture,
salvaging, picking up without any warrant of arrest, massacre — and the persons
 who are allegedly guilty are people in power like politicians, men in the military and
big shots. Therefore, this Human Rights Commission must be independent.

I would like very much to emphasize how much we need this commission, especially
for the little Filipino, the little individual who needs this kind of help and cannot get
it. And I think we should concentrate only on civil and political violations because if
we open this to land, housing and health, we will have no place to go again and we
will not receive any response. . . .30 (emphasis supplied)

The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a provision
empowering the Commission on Human Rights to "investigate, on its own or on complaint by any
party, all forms of human rights violations involving civil and political rights" (Sec. 1).

The term "civil rights,"31 has been defined as referring —

(t)o those (rights) that belong to every citizen of the state or country, or, in wider
sense, to all its inhabitants, and are not connected with the organization or
administration of the government. They include the rights of property, marriage,
equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil
rights are rights appertaining to a person by virtue of his citizenship in a state or
community. Such term may also refer, in its general sense, to rights capable of being
enforced or redressed in a civil action.

Also quite often mentioned are the guarantees against involuntary servitude, religious persecution,
unreasonable searches and seizures, and imprisonment for debt.32

Political rights,33 on the other hand, are said to refer to the right to participate, directly or indirectly, in
the establishment or administration of government, the right of suffrage, the right to hold public
office, the right of petition and, in general, the rights appurtenant to citizenship vis-a-vis the
management of government.34

Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent that
the delegates envisioned a Commission on Human Rights that would focus its attention to the more
severe cases of human rights violations. Delegate Garcia, for instance, mentioned such areas as the
"(1) protection of rights of political detainees, (2) treatment of prisoners and the prevention of
tortures, (3) fair and public trials, (4) cases of disappearances, (5) salvagings and hamletting, and (6)
other crimes committed against the religious." While the enumeration has not likely been meant to
have any preclusive effect, more than just expressing a statement of priority, it is, nonetheless,
significant for the tone it has set. In any event, the delegates did not apparently take comfort in
peremptorily making a conclusive delineation of the CHR's scope of investigatorial jurisdiction. They
have thus seen it fit to resolve, instead, that "Congress may provide for other cases of violations of
human rights that should fall within the authority of the Commission, taking into account its
recommendation."35

In the particular case at hand, there is no cavil that what are sought to be demolished are the
stalls, sari-sari stores and carinderia, as well as temporary shanties, erected by private respondents
on a land which is planned to be developed into a "People's Park". More than that, the land adjoins
the North EDSA of Quezon City which, this Court can take judicial notice of, is a busy national
highway. The consequent danger to life and limb is not thus to be likewise simply ignored. It is
indeed paradoxical that a right which is claimed to have been violated is one that cannot, in the first
place, even be invoked, if it is, in fact, extant. Be that as it may, looking at the standards hereinabove
discoursed vis-a-vis the circumstances obtaining in this instance, we are not prepared to conclude
that the order for the demolition of the stalls, sari-sari stores and carinderia of the private
respondents can fall within the compartment of "human rights violations involving civil and political
rights" intended by the Constitution.

On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines
and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of
Court." Accordingly, the CHR acted within its authority in providing in its revised rules, its power "to
cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in
accordance with the procedure and sanctions provided for in the Rules of Court." That power to cite
for contempt, however, should be understood to apply only to violations of its adopted operational
guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the
power to cite for contempt could be exercised against persons who refuse to cooperate with the said
body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in
pursuing its investigative work. The "order to desist" (a semantic interplay for a restraining order) in
the instance before us, however, is not investigatorial in character but prescinds from an adjudicative
power that it does not possess. In Export Processing Zone Authority vs. Commission on Human
Rights,36 the Court, speaking through Madame Justice Carolina Griño-Aquino, explained:

The constitutional provision directing the CHR to "provide for preventive measures
and legal aid services to the underprivileged whose human rights have been violated
or need protection" may not be construed to confer jurisdiction on the Commission to
issue a restraining order or writ of injunction for, it that were the intention, the
Constitution would have expressly said so. "Jurisdiction is conferred only by the
Constitution or by law". It is never derived by implication.

Evidently, the "preventive measures and legal aid services" mentioned in the
Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary
injunction) which the CHR may seek from proper courts on behalf of the victims of
human rights violations. Not being a court of justice, the CHR itself has no jurisdiction
to issue the writ, for a writ of preliminary injunction may only be issued "by the judge
of any court in which the action is pending [within his district], or by a Justice of the
Court of Appeals, or of the Supreme Court. . . . A writ of preliminary injunction is an
ancillary remedy. It is available only in a pending principal action, for the preservation
or protection of the rights and interests of a party thereto, and for no other purpose."
(footnotes omitted).

The Commission does have legal standing to indorse, for appropriate action, its findings and
recommendations to any appropriate agency of government.37

The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid to
the vendors affected by the demolition is not an appropriate issue in the instant petition. Not only is
there lack of locus standi on the part of the petitioners to question the disbursement but, more
importantly, the matter lies with the appropriate administrative agencies concerned to initially
consider.

The public respondent explains that this petition for prohibition filed by the petitioners has become
moot and academic since the case before it (CHR Case No. 90-1580) has already been fully heard,
and that the matter is merely awaiting final resolution. It is true that prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an
act already accomplished. 38 Here, however, said Commission admittedly has yet to promulgate its
resolution in CHR Case No. 90-1580. The instant petition has been intended, among other things, to
also prevent CHR from precisely doing that.39
WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human Rights
is hereby prohibited from further proceeding with CHR Case No. 90-1580 and from implementing the
P500.00 fine for contempt. The temporary restraining order heretofore issued by this Court is made
permanent. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo,
Quiason and Puno, JJ., concur.

Separate Opinions

PADILLA, J., dissenting:

I reiterate my separate opinion in "Carino, et al. vs. The Commission on Human rights, et al.," G.R.
No. 96681, 2 December 1991, 204 SCRA 483 in relation to the resolution of 29 January 1991 and
my dissenting opinion in "Export Processing Zone Authority vs. The Commission on Human Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I am of the considered view that the CHR
can issue a cease and desist order to maintain a status quo pending its investigation of a case
involving an alleged human rights violation; that such cease and desist order maybe necessary in
situations involving a threatened violation of human rights, which the CHR intents to investigate.

In the case at bench, I would consider the threatened demolition of the stalls, sari-sari stores
and carinderias as well as the temporary shanties owned by the private respondents as
posing prima facie a case of human rights violation because it involves an impairment of the civil
rights of said private respondents, under the definition of civil rights cited by the majority opinion (pp.
20-21) and which the CHR has unquestioned authority to investigate (Section 18, Art. XIII, 1987
Constitution).

Human rights demand more than lip service and extend beyond impressive displays of placards at
street corners. Positive action and results are what count. Certainly, the cause of human rights is not
enhanced when the very constitutional agency tasked to protect and vindicate human rights is
transformed by us, from the start, into a tiger without dentures but with maimed legs to boot. I submit
the CHR should be given a wide latitude to look into and investigate situations which may (or may
not ultimately) involve human rights violations.

ACCORDINGLY, I vote to DISMISS the petition and to remand the case to the CHR for further
proceedings.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. 80508 January 30, 1990

EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA SEVILLA, QUERUBIN

BILLONES, ESTELITA BILLONES, GORGONIA MACARAEG, LAUREANA JOAQUIN,
CRESTITA LICUP, SOLIDAD ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE,
ERLINDA RESTORAN, VERIDIAN FLORA, ROSELA CONDE, SOSIMA COSTO, JOSEFINA
ALDIANO, ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS GONZALES, ESTRELITA
ESTARES, BONIFACIA ANTIVO, PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL,
ERIBERTO MATEO, FRANCISCO HORTILLANO, ANATALIA PESIMO, LOSENDO GARBO,
VIRGINIA LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA. RECHILDA SABALZA, EDITHA
MAAMO, ELENIETA BANOSA, ALEXANDER LABADO, ANDREW GO, WYNEFREDO REYES,
ROSARIO SESPENE, ROSA MARTIN and JAIME BONGAT, petitioners,
vs.
MAJ. GEN. RENATO DE VILLA, BRIG. GEN. ALEXANDER AGUIRRE, BRIG. GEN. RAMON
MONTANO, BRIG. GEN. ALFREDO LIM, and COL. JESUS GARCIA, respondents.

GUTIERREZ, JR., J.:

This is a petition for prohibition with preliminary injunction to prohibit the military and police officers
represented by public respondents from conducting "Areal Target Zonings" or "Saturation Drives" in
Metro Manila.

The forty one (41) petitioners state that they are all of legal age, bona fide residents of Metro Manila
and taxpayers and leaders in their respective communities. They maintain that they have a common
or general interest in the preservation of the rule of law, protection of their human rights and the
reign of peace and order in their communities. They claim to represent "the citizens of Metro Manila
who have similar interests and are so numerous that it is impracticable to bring them all before this
Court."

The public respondents, represented by the Solicitor General, oppose the petition contending inter
alia that petitioners lack standing to file the instant petition for they are not the proper parties to
institute the action.

According to the petitioners, the following "saturation drives" were conducted in Metro Manila:

1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena Streets, Tondo,
Manila.

2. June l9, 1987 at about l0:00 PM in Mata Street, Panday Pira Extension and San Sebastian
Street, Tondo, Manila.

3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila.

4. August 11 to l3, 1987 between 11:00 PM and 2:00 AM in six blocks along Aroma Beach
up to Happy Land, Magsaysay Village, Tondo, Manila.
 5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and Pacheco Street,
Tondo, Manila.

6. August 28, 1987 at l0:30 PM, in Block 34, Dagat-dagatan Navotas, Metro Manila.

7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village, Tondo, Manila.

8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon City.

9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila.

10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International Airport, Pasay
City.

11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta. Mesa, Manila.

12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro Manila.

According to the petitioners, the "areal target zonings" or saturation drives" are in critical areas
pinpointed by the military and police as places where the subversives are hiding. The arrests range
from seven (7) persons during the July 20 saturation drive in Bangkusay, Tondo to one thousand five
hundred (1,500) allegedly apprehended on November 3 during the drive at Lower Maricaban, Pasay
City. The petitioners claim that the saturation drives follow a common pattern of human rights
abuses. In all these drives, it is alleged that the following were committed:

1. Having no specific target house in mind, in the dead of the night or early morning hours,
police and military units without any search warrant or warrant of arrest cordon an area of
more than one residence and sometimes whole barangay or areas of barangay in Metro
Manila. Most of them are in civilian clothes and without nameplates or identification cards.

2. These raiders rudely rouse residents from their sleep by banging on the walls and
windows of their homes, shouting, kicking their doors open (destroying some in the process),
and then ordering the residents within to come out of their respective residences.

3. The residents at the point of high-powered guns are herded like cows, the men are
ordered to strip down to their briefs and examined for tattoo marks and other imagined
marks.

4. While the examination of the bodies of the men are being conducted by the raiders, some
of the members of the raiding team force their way into each and every house within the
cordoned off area and then proceed to conduct search of the said houses without civilian
witnesses from the neighborhood.

5. In many instances, many residents have complained that the raiders ransack their homes,
tossing about the residents' belongings without total regard for their value. In several
instances, walls are destroyed, ceilings are damaged in the raiders' illegal effort to 'fish' for
incriminating evidence.

6. Some victims of these illegal operations have complained with increasing frequency that
their money and valuables have disappeared after the said operations.
 7. All men and some women who respond to these illegal and unwelcome intrusions are
arrested on the spot and hauled off to waiting vehicles that take them to detention centers
where they are interrogated and 'verified.' These arrests are all conducted without any
warrants of arrest duly issued by a judge, nor under the conditions that will authorize
warrantless arrest. Some hooded men are used to fingerpoint suspected subversives.

8. In some instances, arrested persons are released after the expiration of the period
wherein they can be legally detained without any charge at all. In other instances, some
arrested persons are released without charge after a few days of arbitrary detention.

9. The raiders almost always brandish their weapons and point them at the residents during
these illegal operations.

10. Many have also reported incidents of on-the-spotbeatings, maulings and maltreatment.

11. Those who are detained for further 'verification' by the raiders are subjected to mental
and physical torture to extract confessions and tactical information. (Rollo, pp. 2-4)

The public respondents stress two points in their Comment which was also adopted as their
Memorandum after the petition was given due course.

First, the respondents have legal authority to conduct saturation drives. And second, they allege that
the accusations of the petitioners about a deliberate disregard for human rights are total lies.

Insofar as the legal basis for saturation drives is concerned, the respondents cite Article VII, Section
17 of the Constitution which provides:

The President shall have control of all the executive departments, bureaus and offices. He
shall ensure that the laws be faithfully executed. (Emphasis supplied )

They also cite Section 18 of the same Article which provides:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. ...

There can be no question that under ordinary circumstances, the police action of the nature
described by the petitioners would be illegal and blantantly violative of the express guarantees of the
Bill of Rights. If the military and the police must conduct concerted campaigns to flush out and catch
criminal elements, such drives must be consistent with the constitutional and statutory rights of all
the people affected by such actions.

There is, of course, nothing in the Constitution which denies the authority of the Chief Executive,
invoked by the Solicitor General, to order police actions to stop unabated criminality, rising
lawlessness, and alarming communist activities. The Constitution grants to Government the power to
seek and cripple subversive movements which would bring down constituted authority and substitute
a regime where individual liberties are suppressed as a matter of policy in the name of security of
the State. However, all police actions are governed by the limitations of the Bill of Rights. The
Government cannot adopt the same reprehensible methods of authoritarian systems both of the right
and of the left, the enlargement of whose spheres of influence it is trying hard to suppress. Our
democratic institutions may still be fragile but they are not in the least bit strengthened through
violations of the constitutional protections which are their distinguishing features.

In Roan v. Gonzales (145 SCRA 687; 690-691 [1986]), the Court stated:

One of the most precious rights of the citizen in a free society is the right to be left alone in
the privacy of his own house. That right has ancient roots, dating back through the mists of
history to the mighty English kings in their fortresses of power. Even then, the lowly subject
had his own castle where he was monarch of all he surveyed. This was his humble cottage
from which he could bar his sovereign lord and all the forces of the Crown.

That right has endured through the ages albeit only in a few libertarian regimes. Their
number, regrettably, continues to dwindle against the onslaughts of authoritarianism. We are
among the fortunate few, able again to enjoy this right after the ordeal of the past despotism.
We must cherish and protect it all the more now because it is like a prodigal son returning.

That right is guaranteed in the following provisions of Article IV of the 1973 Constitution:

SEC. 3. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
not be violated, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer as may be authorized
by law, after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons or things
to be seized.

xxx xxx xxx

Only last year, the Court again issued this reminder in 20th Century Fox Film Corporation v. Court of
Appeals (164 SCRA 655; 660- 661 [1988]):

This constitutional right protects a citizen against wanton and unreasonable invasion of his
privacy and liberty as to his person, papers and effects. We have explained in the case
of People vs. Burgos (144 SCRA 1) citing Villanueva v. Querubin (48 SCRA 345) why the
right is so important:

It is deference to one's personality that lies at the core of this right, but it could be also
looked upon as a recognition of a constitutionally protected area, primarily one's home, but
not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is
sought to be guarded is a man's prerogative to choose who is allowed entry to his residence.
In that haven of refuge, his individuality can assert itself not only in the choice of who shall be
welcome but likewise in the kind of objects he wants around him. There the state, however
powerful, does not as such have access except under the circumstances above noted, for in
the traditional formulation, his house, however humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is called upon to refrain from any invasion of his
dwelling and to respect the privacies of his life. (Cf. Schmerber v. California, 384 US 757
[1966], Brennan J. and Boyd v. United States, 11 6 630 [1886]). In the same vein, Landynski
in his authoritative work (Search and Seizure and the Supreme Court [1966]), could fitly
characterize constitutional right as the embodiment of a spiritual concept: the belief that to
value the privacy of home and person and to afford its constitutional protection against the
long reach of government is no less than to value human dignity, and that his privacy must
 not be disturbed except in case of overriding social need, and then only under stringent
procedural safeguards. (ibid, p. 74.)

The decision of the United States Supreme Court in Rochin v. California, (342 US 165; 96 L. Ed. 183
[1952]) emphasizes clearly that police actions should not be characterized by methods that offend a
sense of justice. The court ruled:

Applying these general considerations to the circumstances of the present case, we are
compelled to conclude that the proceedings by which this conviction was obtained do more
than offend some fastidious squeamishness or private sentimentalism about combatting
crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the
privacy of the petitioner, the struggle to open his mouth and remove what was there, the
forcible extraction of his stomach's contents this course of proceeding by agents of
government to obtain evidence is bound to offend even hardened sensibilities. They are
methods too close to the rack and the screw to permit of constitutional differentiation.

It is significant that it is not the police action perse which is impermissible and which should be
prohibited. Rather, it is the procedure used or in the words of the court, methods which "offend even
hardened sensibilities." In Breithaupt v. Abram (352 US 432, 1 L. Ed. 2nd 448 [1957]), the same
court validated the use of evidence, in this case blood samples involuntarily taken from the
petitioner, where there was nothing brutal or offensive in the taking. The Court stated:

Basically the distinction rests on the fact that there is nothing 'brutal' or 'offensive' in the
taking of a sample of blood when done, as in this case, under the protective eye of a
physician. To be sure, the driver here was unconscious when the blood was taken, but the
absence of conscious consent, without more, does not necessarily render the taking a
violation of a constitutional light; and certainly the rest was administered here would not be
considered offensive by even the most delicate. Furthermore, due process is not measured
by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but
by that whole community sense of 'decency and fairness that has been woven by common
experience into the fabric of acceptable conduct....

The individual's right to immunity from such invasion of his body was considered as "far outweighed
by the value of its deterrent effect" on the evil sought to be avoided by the police action.

It is clear, therefore, that the nature of the affirmative relief hinges closely on the determination of the
exact facts surrounding a particular case.

The violations of human rights alleged by the petitioners are serious. If an orderly procedure
ascertains their truth, not only a writ of prohibition but criminal prosecutions would immediately issue
as a matter of course. A persistent pattern of wholesale and gross abuse of civil liberties, as alleged
in the petition, has no place in civilized society.

On the other hand, according to the respondents, the statements made by the petitioners are a
complete lie.

The Solicitor General argues:

This a complete lie.

 Just the contrary, they had been conducted with due regard to human rights. Not only that,
they were intelligently and carefully planned months ahead of the actual operation. They
were executed in coordination with barangay officials who pleaded with their constituents to
submit themselves voluntarily for character and personal verification. Local and foreign
correspondents, who had joined these operations, witnessed and recorded the events that
transpired relative thereto. (After Operation Reports: November 5, 1987, Annex 12;
November 20, 1987, Annex 13; November 24, 1987, Annex 14). That is why in all the drives
so far conducted, the alleged victims who numbered thousands had not themselves
complained.

In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo, President
Aquino branded all accusations of deliberate disregard for human rights as 'total lies'. Here
are excerpts from her strongest speech yet in support of the military:

All accusations of a deliberate disregard for human rights have been shown- up to be total
lies.

...To our soldiers, let me say go out and fight, fight with every assurance that I will stand by
you through thick and thin to share the blame, defend your actions, mourn the losses and
enjoy with you the final victory that I am certain will be ours.

You and I will see this through together.

I've sworn to defend and uphold the Constitution.

We have wasted enough time answering their barkings for it is still a long way to lasting
peace. . . . The dangers and hardships to our men in the field are great enough as it is
without having them distracted by tills worthless carping at their backs.

Our counter-insurgency policy remains the same: economic development to pull out the
roots-and military operations to slash the growth — of the insurgency.

The answer to terror is force — now.

Only feats of arms can buy us the time needed to make our economic and social initiatives
bear fruit. . . Now that the extreme Right has been defeated, I expect greater vigor in the
prosecution of the war against the communist insurgency, even as we continue to watch our
backs against attacks from the Right. (Philippine Star, January 27, 1988, p. 1, Annex 15;
emphasis supplied)

Viewed in the light of President Aquino's observation on the matter, it can be said that
petitioners misrepresent as human rights violations the military and police's zealous vigilance
over the people's right to live in peace and safety. (Rollo, pp. 36-38)

Herein lies the problem of the Court. We can only guess the truth. Everything before us consists of
allegations. According to the petitioners, more than 3,407 persons were arrested in the saturation
drives covered by the petition. No estimates are given for the drives in Block 34, Dagat-dagatan,
Navotas; Apelo Cruz Compound, Pasig; and Sun Valley Drive near the Manila International Airport
area. Not one of the several thousand persons treated in the illegal and inhuman manner described
by the petitioners appears as a petitioner or has come before a trial court to present the kind of
evidence admissible in courts of justice. Moreover, there must have been tens of thousands of
nearby residents who were inconvenienced in addition to the several thousand allegedly arrested.
None of those arrested has apparently been charged and none of those affected has apparently
complained.

A particularly intriguing aspect of the Solicitor General's comments is the statement that local and
foreign co-respondents actually joined the saturation drives and witnessed and recorded the events.
In other words, the activities sought to be completely proscribed were in full view of media. The sight
of hooded men allegedly being used to fingerpoint suspected subversives would have been good
television copy. If true, this was probably effected away from the ubiquitous eye of the TV cameras
or, as the Solicitor General contends, the allegation is a "complete lie."

The latest attempt to stage a coup d'etat where several thousand members of the Armed Forces of
the Philippines sought to overthrow the present Government introduces another aspect of the
problem and illustrates quite clearly why those directly affected by human rights violations should be
the ones to institute court actions and why evidence of what actually transpired should first be
developed before petitions are filed with this Court.

Where there is large scale mutiny or actual rebellion, the police or military may go in force to the
combat areas, enter affected residences or buildings, round up suspected rebels and otherwise quell
the mutiny or rebellion without having to secure search warrants and without violating the Bill of
Rights. This is exactly what happened in the White Plains Subdivision and the commercial center of
Makati during the first week of December, 1989.

The areal target zonings in this petition were intended to flush out subversives and criminal elements
particularly because of the blatant assassinations of public officers and police officials by elements
supposedly coddled by the communities where the "drives" were conducted.

It is clear from the pleadings of both petitioners and respondents, however, that there was no
rebellion or criminal activity similar to that of the attempted coup d' etats. There appears to have
been no impediment to securing search warrants or warrants of arrest before any houses were
searched or individuals roused from sleep were arrested. There is no strong showing that the
objectives sought to be attained by the "areal zoning" could not be achieved even as the rights of
squatter and low income families are fully protected.

Where a violation of human rights specifically guaranteed by the Constitution is involved, it is the
duty of the court to stop the transgression and state where even the awesome power of the state
may not encroach upon the rights of the individual. It is the duty of the court to take remedial action
even in cases such as the present petition where the petitioners do not complain that they were
victims of the police actions, where no names of any of the thousands of alleged victims are given,
and where the prayer is a general one to stop all police "saturation drives," as long as the Court is
convinced that the event actually happened.

The Court believes it highly probable that some violations were actually committed. This is so inspite
of the alleged pleas of barangay officials for the thousands of residents "to submit themselves
voluntarily for character and personal verification." We cannot imagine police actions of the
magnitude described in the petitions and admitted by the respondents, being undertaken without
some undisciplined soldiers and policemen committing certain abuses. However, the remedy is not
to stop all police actions, including the essential and legitimate ones. We see nothing wrong in police
making their presence visibly felt in troubled areas. Police cannot respond to riots or violent
demonstrations if they do not move in sufficient numbers. A show of force is sometimes
necessary as long as the rights of people are protected and not violated. A blanket prohibition such
as that sought by the petitioners would limit all police actions to one on one confrontations where
search warrants and warrants of arrests against specific individuals are easily procured. Anarchy
may reign if the military and the police decide to sit down in their offices because all concerted drives
where a show of force is present are totally prohibited.

The remedy is not an original action for prohibition brought through a taxpayers' suit. Where not one
victim complains and not one violator is properly charged, the problem is not initially for the Supreme
Court. It is basically one for the executive departments and for trial courts. Well meaning citizens
with only second hand knowledge of the events cannot keep on indiscriminately tossing problems of
the executive, the military, and the police to the Supreme Court as if we are the repository of all
remedies for all evils. The rules of constitutional litigation have been evolved for an orderly
procedure in the vindication of rights. They should be followed. If our policy makers sustain the
contention of the military and the police that occasional saturation drives are essential to maintain
the stability of government and to insure peace and order, clear policy guidelines on the behavior of
soldiers and policemen must not only be evolved, they should also be enforced. A method of
pinpointing human rights abuses and identifying violators is necessary.

The problem is appropriate for the Commission on Human Rights. A high level conference should
bring together the heads of the Department of Justice, Department of National Defense and the
operating heads of affected agencies and institutions to devise procedures for the prevention of
abuses.

Under the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom we can
order prosecuted. In the absence of clear facts ascertained through an orderly procedure, no
permanent relief can be given at this time. Further investigation of the petitioners' charges and a
hard look by administration officials at the policy implications of the prayed for blanket prohibition are
also warranted.

In the meantime and in the face of a prima facie showing that some abuses were probably
committed and could be committed during future police actions, we have to temporarily restrain the
alleged banging on walls, the kicking in of doors, the herding of half-naked men to assembly areas
for examination of tattoo marks, the violation of residences even if these are humble shanties of
squatters, and the other alleged acts which are shocking to the conscience.

WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of Manila, Malabon,
and Pasay City where the petitioners may present evidence supporting their allegations and where
specific erring parties may be pinpointed and prosecuted.

Copies of this decision are likewise forwarded to the Commission on Human Rights, the Secretary of
Justice, the Secretary of National Defense, and the Commanding General PC-INP for the drawing
up and enforcement of clear guidelines to govern police actions intended to abate riots and civil
disturbances, flush out criminal elements, and subdue terrorist activities.

In the meantime, the acts violative of human rights alleged by the petitioners as committed during
the police actions are ENJOINED until such time as permanent rules to govern such actions are
promulgated.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes, Medialdea and
Regalado, JJ., concur.
Griño-Aquino, J., I join JJ. Cruz, Padilla and Sarmiento's dissents.
 Separate Opinions

CRUZ, J., dissenting:

Mr. Justice Gutierrez and I are kindred spirits and usually find ourselves together on the side of
liberty. It saddens me that in the case at bar he is on the side of authority.

This is not to say that liberty and authority are irreconcilable enemies. The two must in fact co-exist,
for only in a well-ordered society can rights be properly enjoyed. Implicit in that theory, however, is
the other imperative: that the highest function of authority is to insure liberty.

While acknowledging that the military is conducting the saturation drives, the majority practically
blinks them away on mere technicalities. First, there are no proper parties. Second, there is no proof.
Therefore, the petition is dismissed.

The approach is to me too much simplification. We do not choose to see the woods for the trees.
The brutal fact is staring us in the face but we look the other way in search of excuses.

The majority says it cannot act against the drives because no one directly affected has complained.
Such silence, if I understand the ponencia correctly, has in effect purged the drives of all
oppressiveness and washed them clean.

(The reason for the silence is fear. These raids are conducted not in the enclaves of the rich but in
the deprived communities, where the residents have no power or influence. The parties directly
aggrieved are afraid. They are the little people. They cannot protest lest they provoke retaliation for
their temerity. Their only hope is in this Court, and we should not deny them that hope.)

The ruling that the petitioners are not proper parties is a specious pretext for inaction. We have held
that technical objections may be brushed aside where there are constitutional questions that must be
met. There are many decisions applying this doctrine. (Rodriguez v. Gella, 92 Phil. 603; Tolentino v.
Commission on Elections, 41 SCRA 702; Philconsa v. Jimenez, 65 SCRA 479; Edu v. Ericta, 35
SCRA 481; Gonzales v. Commission on Elections, 27 SCRA 835; Lagunsad v. Court of Appeals;
154 SCRA 199; Demetria v. Alba, 148 SCRA 208). Lozada was in fact an aberration.

I believe that where liberty is involved, every person is a proper party even if he may not be directly
injured. Each of us has a duty to protect liberty and that alone makes him a proper party. It is not
only the owner of the burning house who has the right to call the firemen. Every one has the right
and responsibility to prevent the fire from spreading even if he lives in the other block.

The majority seems to be willing to just accept the Solicitor General's assertion that the claimed
abuses are "complete lies" and leave it at that. But a blanket denial is not enough. The evidence is
there on media, in the papers and on radio and television, That kind of evidence cannot be cavalierly
dismissed as "complete lies."

The saturation drive is not unfamiliar to us. It is like the "zona" of the Japanese Occupation. An area
was surrounded by soldiers and all residents were flushed out of their houses and lined up, to be
looked over by a person with a bag over his head. This man pointed to suspected guerrillas, who
were immediately arrested and eventually if not instantly executed.
To be sure, there are some variations now. The most important difference is that it is no longer 1943
and the belligerent occupation is over. There is no more war. It is now 1990, when we are supposed
to be under a free Republic and safeguarded by the Bill of Rights.

Article III, Section 2, clearly provides:

Sec. 2 The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized. (Emphasis supplied.)

The provision is intended to protect the individual from official (and officious) intrusions, no matter
how humble his abode and however lowly his station in life. Against the mighty forces of the
government, the person's house is his castle, his inviolate refuge and exclusive domain where he is
the monarch of all he surveys.

Yet in the dead of night, armed soldiers may knock on one's door and command him at gunpoint to
come out so he and his neighbors, who have also been rounded up, can all be placed on public
examination, as in a slave market. This is followed by the arrest and detention of those suspected of
villainy, usually on the basis only of the tattoos on their bodies or the informer's accusing finger.

Where is the search warrant or the warrant of arrest required by the Bill of Rights? Where is the
probable cause that must be determined personally by the judge, and by no other, to justify the
warrant? Where is the examination under oath or affirmation of the complainant and the witnesses
he may produce to establish the probable cause? Where is the particular description that must be
stated in the warrant, of the places to be searched and the persons or things to be seized? And
where, assuming all these may be dispensed with, is the admissible exception to the rule?

Saturation drives are not among the accepted instances when a search or an arrest may be made
without warrant. They come under the concept of the fishing expeditions stigmatized by law and
doctrine. At any rate, if the majority is really introducing the "zona" as another exception to the rule, it
must not equivocate. It must state that intention in forthright language and not in vague
generalizations that concede the wrong but deny the right.

To justify the "zona" on the basis of the recent coup attempt is, in my view, to becloud the issue. The
"zonas" complained of happened before the failed coup and had nothing whatsoever to do with that
disturbance. There was no "large scale mutiny or actual rebellion' when the saturation drives were
conducted and there were no "combat areas" either in the places where the violations were
committed. The failed coup cannot validate the invalid "zonas' retroactively.

The ponencia says that "we cannot take judicial notice of the facts and figures given by the
petitioners regarding these saturation drives conducted by the military and police authorities." Maybe
so. But we can and should take judicial notice of the saturation drives themselves which are not and
cannot be denied by the government.

I urge my brethren to accept the fact that those drives are per se unconstitutional. I urge them to
accept that even without proof of the hooded figure and the personal indignities and the loss and
destruction of properties and the other excesses allegedly committed, the mere waging of the
saturation drives alone is enough to make this Court react with outraged concern.
Confronted with this clear case of oppression, we should not simply throw up our hands and
proclaim our helplessness. I submit that this Court should instead declare categorically and
emphatically that these saturation drives are violative of human rights and individual liberty and so
should be stopped immediately. While they may be allowed in the actual theater of military
operations against the insurgents, the Court should also make it clear that Metro Manila is not such
a battleground.

The danger to our free institutions lies not only in those who openly defy the authority of the
government and violate its laws. The greater menace is in those who, in the name of democracy,
destroy the very things it stands for as in this case and so undermine democracy itself.

Where liberty is debased into a cruel illusion, all of us are degraded and diminished. Liberty is
indivisible; it belongs to every one. We should realize that when the bell tolls the death of liberty for
one of us, "it tolls for thee" and for all of us.

PADILLA, J., separate opinion:

This case is another classic instance of state power colliding with individual rights. That the State,
acting through the government and its forces, has the authority to suppress lawless violence in all its
forms cannot be denied. The exercise of that authority is justified when viewed from the standpoint
of the general welfare, because the State has the elementary and indispensable duty to insure a
peaceful life and existence for its citizens. A government that loses its capability to insure peace and
order for its citizens loses the very right to remain in power.

But, in the exercise of such authority, i.e., in the choice of the means and methods to suppress
lawless violence, the right of the individual citizen to the dignity of his person and the sanctity of his
home cannot and should not be violated, unless there is, in a particular case, a clear and present
danger of a substantive evil that the State has a compelling duty to suppress or abate.

Petitioners' vivid description of the "areal target zoning" or "saturation drives" allegedly conducted by
police and military units in Metro Manila, obviously intended to ferret out criminals or suspected
criminals in certain cordoned areas, while vigorously denied by respondents, deserves an effective
and immediate response from this Court.

I submit that since this Court is not a trier of facts and this case involves certainty of facts alleged by
petitioners and denied by respondents — this case should be referred to a proper trial court where
the petitioners can present evidence to support and prove the allegations they make of such brutal
and inhuman conduct on the part of military and police units.

More than the military and police checkpoints sustained by this Court as a general proposition during
abnormal times,** and which involve the right of military and police forces to check on vehicles and
pedestrians passing through certain fixed points for the purpose of apprehending criminals and/or
confiscating prohibited articles like unlicensed firearms, the "areal target zoning" and "saturation
drives", as described in petitioners' allegations, are actual raids on private homes in selected areas,
and are thus positive assaults against the individual person and his dignity. The individual is, as
described, yanked out of his home, without any arrest warrant, to face investigation as to his
connections with lawless elements. In short, the sanctity of the home is pulverized by military and
police action. Thus, while the checkpoint is a defensive device, on the part of government, the "areal
target zoning" or "saturation drive" is a direct assault against, an intrusion into individual rights and
liberties.
Respondents, fortunately, have branded petitioners' allegations of such brutality, as total lies. It is
indeed difficult to even contemplate that such methods reminiscent of a "police state" can exist in a
society built on a republican and constitutional system. Respondents Must be given a chance to face
their accusers and prove that they are indeed fabricating falsehoods. But the stakes I submit, are too
high for this Court, as the guardian of individual liberties, to avoid a judicial confrontation with the
issue.

I vote, therefore, to refer this case (dispensing with normal venue requirements) to the Executive
Judge, RTC of Manila, for him —

1. to receive the evidences of all the parties, in support and in refutation of the petitioners'
allegations;

2. to decide the case expeditiously on the bases of the evidence, subject to review by this
Court;

3. to report to this Court on action taken.

SARMIENTO, J., dissenting:

There is only one question here: Whether or not the police actions (saturation drives) complained of
constitute a valid exercise of police power.

The fact that on twelve occasions between March and November, 1987 the military conducted the
saturation drives in question is a fact open to no question. The Solicitor General admits that they, the
saturation drives, had been done, except that they had been done "with due regard to human rights."
"Not only that," so he states:

... they were intelligently and carefully planned months ahead of the actual operation. They
were executed in coordination with barangay officials who pleaded with their constituents to
submit themselves voluntarily for character and personal verification. Local and foreign
correspondents, who had joined these operations, witnessed, and reported the events that
transpired relative thereto. (After Operation Reports: November 5, 1987, Annex 12;
November 20, 1987, Annex 13; November 24, 1987, Annex 14). That is why in all the drives
so far conducted, the alleged victims who numbered thousands had not themselves
complained.

The question, then, is purely one of law: Are the saturation drives in question lawful and legitimate?
It is also a question that is nothing novel: No, because the arrests were not accompanied by a
judicial warrant. 1

Therefore, the fact that they had been carefully planned, executed in coordination with Tondo's
barangay officials, and undertaken with due courtesy and politeness (which I doubt), will not validate
them. The lack of a warrant makes them, per se illegal.

According to the majority, "the remedy is not to stop all police actions, including the essential and
legitimate ones . . . [w]e see nothing wrong in police making their presence visibly felt in troubled
areas . . . " 2 But the petitioners have not come to court to "stop all police actions" but rather, the
saturation drives, which are, undoubtedly, beyond police power.
That "[a] show of force is sometimes necessary as long as the rights of people are protected and not
violated3 is a contradiction in terms. A "show of force" (by way of saturation drives) is a violation of
human rights because it is not covered by a judicial warrant.

In all candor, I can not swallow what I find is a complete exaggeration of the issues:

...A show of force is sometimes necessary as long as the rights of people are protected and
not violated. A blanket prohibition such as that sought by the petitioners would limit all police
1âwphi 1

actions to one on one confrontations where search warrants and warrants of arrests against
specific individuals are easily procured. Anarchy may reign if the military and the police
decide to sit down in their offices because all concerted drives where a show of force is
present are totally prohibited. 4

As a general rule, a peace officer can not act unless he is possessed of the proper arrest or search
warrant. The exception is when a criminal offense is unfolding before him, in which case, action is
justified and necessary. The majority would have the exception to be simply, the general rule.

The fact of the matter is that we are not here confronted by police officers on the beat or prowl cars
on patrol. What we have and I suppose that everybody is agreed on it- are lightning raids of homes,
arbitrary confiscation of effects, and summary arrests of persons, the very acts proscribed by the
Constitution. If this is a "show of force", it certainly has no place in a constitutional democracy.

I find allusions to the last aborted coup d'etat inapt. In that case, our men in uniform had all the right
to act amidst crimes being committed in flagrante. The instant case is quite different. There are no
offenses being committed, but rather, police officers fishing for evidence of offenses that may have
been committed, As I said, in that event, a court warrant is indispensable.

That "the problem is not initially for the Supreme Court5 is to me, an abdication of judicial duty. As I
indicated, the controversy is purely one of law the facts being undisputed. Law, needless to say, is
the problem of the Supreme Court, not the Executive.

Worse, it is passing the buck. The petitioners, precisely, have a grievance to raise, arising from
abuses they pinpoint to the lower offices of the Executive (which presumably has its imprimatur). To
make it an executive problem, so I hold, is to make the Executive judge and jury of its own acts, and
hardly, a neutral arbiter.

I am also taken aback by references to "[w]ell meaning citizens with only second hand knowledge of
the events ... keep[ing] on indiscriminately tossing problems -of the Executive, the military, and the
police to the Supreme Court as if we are the repository of all remedies for all evils." 6 First, the facts
are not "second-hand", they are undisputed: Ther had been saturation drives. Second, the
petitioners have trooped to the highest court with a legitimate grievance against the Executive (and
military).

The fact that the majority would "remand" the case to the lower courts and the various echelons of
the Executive for investigation is to admit that walls have indeed been banged, doors kicked in, and
half-naked men herded. I do not see therefore why we can not issue a writ of prohibition as prayed
for, in the midst of these facts.

EN BANC
 [G.R. No. 135306. January 28, 2003]

MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA

and AGUSTINO G. BINEGAS, JR., petitioners, vs. ISLAMIC
DA'WAH COUNCIL OF THE PHILIPPINES, INC., ABDUL-RAHMAN
R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE
GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A.
JUNIO, respondents.

DECISION

I may utterly detest what you write, but I shall fight

to the death to make it possible for you to
continue writing it. - Voltaire
BELLOSILLO, J.:

VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to

free speech and free press - liberties that belong as well, if not more, to those
who question, who do not conform, who differ. For the ultimate good which we
all strive to achieve for ourselves and our posterity can better be reached by a
free exchange of ideas, where the best test of truth is the power of the thought
to get itself accepted in the competition of the free market - not just the ideas
we desire, but including those thoughts we despise. [1]

ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local

federation of more than seventy (70) Muslim religious organizations, and
individual Muslims ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA,
ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A.
JUNIO, filed in the Regional Trial Court of Manila a complaint for damages in
their own behalf and as a class suit in behalf of the Muslim members nationwide
against MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA
and AGUSTINO G. BINEGAS, JR., arising from an article published in the 1
August 1992 issue of Bulgar, a daily tabloid. The article reads:

"ALAM BA NINYO?

Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng
mga Muslim?
Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang
kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain.
Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang
pangingilin lalung-lalo na sa araw na tinatawag nilang Ramadan."

The complaint alleged that the libelous statement was insulting and
damaging to the Muslims; that these words alluding to the pig as the God of the
Muslims was not only published out of sheer ignorance but with intent to hurt
the feelings, cast insult and disparage the Muslims and Islam, as a religion in
this country, in violation of law, public policy, good morals and human relations;
that on account of these libelous words Bulgar insulted not only the Muslims in
the Philippines but the entire Muslim world, especially every Muslim individual
in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their
defense, contended that the article did not mention respondents as the object
of the article and therefore were not entitled to damages; and, that the article
was merely an expression of belief or opinion and was published without malice
nor intention to cause damage, prejudice or injury to Muslims. [2]

On 30 June 1995 the trial court dismissed the complaint holding that the
plaintiffs failed to establish their cause of action since the persons allegedly
defamed by the article were not specifically identified -

It must be noted that the persons allegedly defamed, the herein plaintiffs, were not
identified with specificity. The subject article was directed at the Muslims without
mentioning or identifying the herein plaintiffs x x x x It is thus apparent that the
alleged libelous article refers to the larger collectivity of Muslims for which the
readers of the libel could not readily identify the personalities of the persons
defamed. Hence, it is difficult for an individual Muslim member to prove that the
defamatory remarks apply to him. The evidence presented in this case failed to
convince this court that, indeed, the defamatory remarks really applied to the herein
plaintiffs.
[3]

On 27 August 1998 the Court of Appeals reversed the decision of the trial
court. It opined that it was "clear from the disputed article that the defamation
was directed to all adherents of the Islamic faith. It stated that pigs were sacred
and idolized as god by members of the Muslim religion. This libelous imputation
undeniably applied to the plaintiff-appellants who are Muslims sharing the same
religious beliefs." It added that the suit for damages was a "class suit" and that
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.'s religious status as
a Muslim umbrella organization gave it the requisite personality to sue and
protect the interests of all Muslims. [4]
 Hence, the instant petition for review assailing the findings of the appellate
court (a) on the existence of the elements of libel, (b) the right of respondents
to institute the class suit, and, (c) the liability of petitioners for moral damages,
exemplary damages, attorney's fees and costs of suit.
Defamation, which includes libel and slander, means the offense of injuring
a person's character, fame or reputation through false and malicious
statements. It is that which tends to injure reputation or to diminish the esteem,
[5]

respect, good will or confidence in the plaintiff or to excite derogatory feelings

or opinions about the plaintiff. It is the publication of anything which is injurious
[6]

to the good name or reputation of another or tends to bring him into

disrepute. Defamation is an invasion of a relational interest since it involves
[7]

the opinion which others in the community may have, or tend to have, of the
plaintiff.
[8]

It must be stressed that words which are merely insulting are not actionable
as libel or slander per se, and mere words of general abuse however
opprobrious, ill-natured, or vexatious, whether written or spoken, do not
constitute a basis for an action for defamation in the absence of an allegation
for special damages. The fact that the language is offensive to the plaintiff does
[9]

not make it actionable by itself. [10]

Declarations made about a large class of people cannot be interpreted to

advert to an identified or identifiable individual. Absent circumstances
specifically pointing or alluding to a particular member of a class, no member of
such class has a right of action without at all impairing the equally demanding
[11]

right of free speech and expression, as well as of the press, under the Bill of
Rights. Thus, in Newsweek, Inc. v. Intermediate Appellate Court, we
[12] [13]

dismissed a complaint for libel against Newsweek, Inc., on the ground that
private respondents failed to state a cause of action since they made no
allegation in the complaint that anything contained in the article complained of
specifically referred to any of them. Private respondents, incorporated
associations of sugarcane planters in Negros Occidental claiming to have 8,500
members and several individual members, filed a class action suit for damages
in behalf of all sugarcane planters in Negros Occidental. The complaint filed in
the Court of First Instance of Bacolod City alleged that Newsweek, Inc.,
committed libel against them by the publication of the article "Island of Fear" in
its weekly newsmagazine allegedly depicting Negros Province as a place
dominated by wealthy landowners and sugar planters who not only exploited
the impoverished and underpaid sugarcane workers but also brutalized and
killed them with impunity. Private respondents alleged that the article showed a
deliberate and malicious use of falsehood, slanted presentation and/or
misrepresentation of facts intended to put the sugarcane planters in a bad light,
expose them to public ridicule, discredit and humiliation in the Philippines and
abroad, and make them the objects of hatred, contempt and hostility of their
agricultural workers and of the public in general. We ratiocinated -

x x x where the defamation is alleged to have been directed at a group or class, it is

essential that the statement must be so sweeping or all-embracing as to apply to every
individual in that group or class, or sufficiently specific so that each individual in the
class or group can prove that the defamatory statement specifically pointed to him, so
that he can bring the action separately, if need be x x x x The case at bar is not a class
suit. It is not a case where one or more may sue for the benefit of all, or where the
representation of class interest affected by the judgment or decree is indispensable to
make each member of the class an actual party. We have here a case where each of
the plaintiffs has a separate and distinct reputation in the community. They do not
have a common or general interest in the subject matter of the controversy.

In the present case, there was no fairly identifiable person who was
allegedly injured by the Bulgar article. Since the persons allegedly defamed
could not be identifiable, private respondents have no individual causes of
action; hence, they cannot sue for a class allegedly disparaged. Private
respondents must have a cause of action in common with the class to which
they belong to in order for the case to prosper.
An individual Muslim has a reputation that is personal, separate and distinct
in the community. Each Muslim, as part of the larger Muslim community in the
Philippines of over five (5) million people, belongs to a different trade and
profession; each has a varying interest and a divergent political and religious
view -some may be conservative, others liberal. A Muslim may find the article
dishonorable, even blasphemous; others may find it as an opportunity to
strengthen their faith and educate the non-believers and the "infidels."There is
no injury to the reputation of the individual Muslims who constitute this
community that can give rise to an action for group libel. Each reputation is
personal in character to every person. Together, the Muslims do not have a
single common reputation that will give them a common or general interest in
the subject matter of the controversy.
In Arcand v. The Evening Call Publishing Company, the United States
[14]

Court of Appeals held that one guiding principle of group libel is that defamation
of a large group does not give rise to a cause of action on the part of an
individual unless it can be shown that he is the target of the defamatory matter.
The rule on libel has been restrictive. In an American case, a person had
[15]

allegedly committed libel against all persons of the Jewish religion. The Court
held that there could be no libel against an extensive community in common
law. In an English case, where libel consisted of allegations of immorality in a
Catholic nunnery, the Court considered that if the libel were on the whole
Roman Catholic Church generally, then the defendant must be absolved. With [16]

regard to the largest sectors in society, including religious groups, it may be

generally concluded that no criminal action at the behest of the state, or civil
action on behalf of the individual, will lie.
In another case, the plaintiffs claimed that all Muslims, numbering more than
600 million, were defamed by the airing of a national television broadcast of a
film depicting the public execution of a Saudi Arabian princess accused of
adultery, and alleging that such film was "insulting and defamatory" to the
Islamic religion. The United States District Court of the Northern District of
[17]

California concluded that the plaintiffs' prayer for $20 Billion in damages arising
from "an international conspiracy to insult, ridicule, discredit and abuse
followers of Islam throughout the world, Arabs and the Kingdom of Saudi
Arabia" bordered on the "frivolous," ruling that the plaintiffs had failed to
demonstrate an actionable claim for defamation. The California Court stressed
that the aim of the law on defamation was to protect individuals; a group may
be sufficiently large that a statement concerning it could not defame individual
group members. [18]

Philip Wittenberg, in his book "Dangerous Words: A Guide to the Law of

Libel," discusses the inappropriateness of any action for tortious libel involving
[19]

large groups, and provides a succinct illustration:

There are groupings which may be finite enough so that a description of the body is a
description of the members. Here the problem is merely one of evaluation. Is the
description of the member implicit in the description of the body, or is there a
possibility that a description of the body may consist of a variety of persons, those
included within the charge, and those excluded from it?

A general charge that the lawyers in the city are shysters would obviously not be a
charge that all of the lawyers were shysters. A charge that the lawyers in a local point
in a great city, such as Times Square in New York City, were shysters would obviously
not include all of the lawyers who practiced in that district; but a statement that all of
the lawyers who practiced in a particular building in that district were shysters would
be a specific charge, so that any lawyer having an office within that building could
sue.

If the group is a very large one, then the alleged libelous statement is
considered to have no application to anyone in particular, since one might as
well defame all mankind. Not only does the group as such have no action; the
plaintiff does not establish any personal reference to himself. At present,
[20]
modern societal groups are both numerous and complex. The same principle
follows with these groups: as the size of these groups increases, the chances
for members of such groups to recover damages on tortious libel become
elusive. This principle is said to embrace two (2) important public policies: first,
where the group referred to is large, the courts presume that no reasonable
reader would take the statements as so literally applying to each individual
member; and second, the limitation on liability would satisfactorily safeguard
freedom of speech and expression, as well as of the press, effecting a sound
compromise between the conflicting fundamental interests involved in libel
cases. [21]

In the instant case, the Muslim community is too vast as to readily ascertain
who among the Muslims were particularly defamed. The size of the group
renders the reference as indeterminate and generic as a similar attack on
Catholics, Protestants, Buddhists or Mormons would do. The word "Muslim" is
descriptive of those who are believers of Islam, a religion divided into varying
sects, such as the Sunnites, the Shiites, the Kharijites, the Sufis and others
based upon political and theological distinctions. "Muslim" is a name which
describes only a general segment of the Philippine population, comprising a
heterogeneous body whose construction is not so well defined as to render it
impossible for any representative identification.
The Christian religion in the Philippines is likewise divided into different
sects: Catholic, Baptist, Episcopalian, Presbyterian, Lutheran, and other groups
the essence of which may lie in an inspired charlatan, whose temple may be a
corner house in the fringes of the countryside. As with the Christian religion, so
it is with other religions that represent the nation's culturally diverse people and
minister to each one's spiritual needs. The Muslim population may be divided
into smaller groups with varying agenda, from the prayerful conservative to the
passionately radical. These divisions in the Muslim population may still be too
large and ambiguous to provide a reasonable inference to any personality who
can bring a case in an action for libel.
The foregoing are in essence the same view scholarly expressed by Mr.
Justice Reynato S. Puno in the course of the deliberations in this case. We
extensively reproduce hereunder his comprehensive and penetrating
discussion on group libel -

Defamation is made up of the twin torts of libel and slander the one being, in general,
written, while the other in general is oral. In either form, defamation is an invasion of
the interest in reputation and good name. This is a relational interest since it involves
the opinion others in the community may have, or tend to have of the plaintiff.
The law of defamation protects the interest in reputation the interest in acquiring,
retaining and enjoying ones reputation as good as ones character and conduct
warrant. The mere fact that the plaintiffs feelings and sensibilities have been offended
is not enough to create a cause of action for defamation. Defamation requires that
something be communicated to a third person that may affect the opinion others may
have of the plaintiff. The unprivileged communication must be shown of a statement
that would tend to hurt plaintiffs reputation, to impair plaintiffs standing in the
community.

Although the gist of an action for defamation is an injury to reputation, the focus of a
defamation action is upon the allegedly defamatory statement itself and its predictable
effect upon third persons. A statement is ordinarily considered defamatory if it tend[s]
to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule,
aversion, ostracism, degradation or disgrace The Restatement of Torts defines a
defamatory statement as one that tends to so harm the reputation of another as to
lower him in the estimation of the community or to deter third persons from
associating or dealing with him.

Consequently as a prerequisite to recovery, it is necessary for the plaintiff to prove as

part of his prima facie case that the defendant (1) published a statement that was (2)
defamatory (3) of and concerning the plaintiff.

The rule in libel is that the action must be brought by the person against whom the
defamatory charge has been made. In the American jurisdiction, no action lies by a
third person for damages suffered by reason of defamation of another person, even
though the plaintiff suffers some injury therefrom. For recovery in defamation cases,
it is necessary that the publication be of and concerning the plaintiff. Even when a
publication may be clearly defamatory as to somebody, if the words have no personal
application to the plaintiff, they are not actionable by him. If no one is identified,
there can be no libel because no ones reputation has been injured x x x x

In fine, in order for one to maintain an action for an alleged defamatory statement, it
must appear that the plaintiff is the person with reference to whom the statement was
made. This principle is of vital importance in cases where a group or class is defamed
since, usually, the larger the collective, the more difficult it is for an individual
member to show that he was the person at whom the defamation was directed.

If the defamatory statements were directed at a small, restricted group of persons,

they applied to any member of the group, and an individual member could maintain
an action for defamation. When the defamatory language was used toward a small
group or class, including every member, it has been held that the defamatory
language referred to each member so that each could maintain an action. This small
group or class may be a jury, persons engaged in certain businesses, professions or
employments, a restricted subdivision of a particular class, a society, a football team,
a family, small groups of union officials, a board of public officers, or engineers of a
particular company.

In contrast, if defamatory words are used broadly in respect to a large class or group
of persons, and there is nothing that points, or by proper colloquium or innuendo can
be made to apply, to a particular member of the class or group, no member has a
right of action for libel or slander. Where the defamatory matter had no special,
personal application and was so general that no individual damages could be
presumed, and where the class referred to was so numerous that great vexation and
oppression might grow out of the multiplicity of suits, no private action could be
maintained. This rule has been applied to defamatory publications concerning groups
or classes of persons engaged in a particular business, profession or employment,
directed at associations or groups of association officials, and to those directed at
miscellaneous groups or classes of persons.

Distinguishing a small group-which if defamed entitles all its members to sue from a
large group which if defamed entitles no one to sue is not always so simple. Some
authorities have noted that in cases permitting recovery, the group generally has
twenty five (25) or fewer members. However, there is usually no articulated limit on
size. Suits have been permitted by members of fairly large groups when some
distinguishing characteristic of the individual or group increases the likelihood that
the statement could be interpreted to apply individually. For example, a single player
on the 60 to 70 man Oklahoma University football team was permitted to sue when a
writer accused the entire team of taking amphetamines to hop up its performance; the
individual was a fullback, i.e., a significant position on the team and had played in all
but two of the teams games.

A prime consideration, therefore, is the public perception of the size of the group and
whether a statement will be interpreted to refer to every member. The more organized
and cohesive a group, the easier it is to tar all its members with the same brush and
the more likely a court will permit a suit from an individual even if the group includes
more than twenty five (25) members. At some point, however, increasing size may be
seen to dilute the harm to individuals and any resulting injury will fall beneath the
threshold for a viable lawsuit.

x x x x There are many other groupings of men than those that are contained within
the foregoing group classifications. There are all the religions of the world, there are
all the political and ideological beliefs; there are the many colors of the human race.
Group defamation has been a fertile and dangerous weapon of attack on various
racial, religious and political minorities. Some states, therefore, have passed statutes
to prevent concerted efforts to harass minority groups in the United States by making
it a crime to circulate insidious rumors against racial and religious groups. Thus far,
any civil remedy for such broadside defamation has been lacking.

There have been numerous attempts by individual members to seek redress in the
courts for libel on these groups, but very few have succeeded because it felt that the
groups are too large and poorly defined to support a finding that the plaintiff was
singled out for personal attack x x x x (citations omitted).

Our conclusion therefore is that the statements published by petitioners in

the instant case did not specifically identify nor refer to any particular individuals
who were purportedly the subject of the alleged libelous
publication. Respondents can scarcely claim to having been singled out for
social censure pointedly resulting in damages.
A contrary view is expressed that what is involved in the present case is an
intentional tortious act causing mental distress and not an action for libel. That
opinion invokes Chaplinsky v. New Hampshire where the U.S. Supreme Court
[22]

held that words heaping extreme profanity, intended merely to incite hostility,
hatred or violence, have no social value and do not enjoy constitutional
protection; and Beauharnais v. Illinois where it was also ruled that hate speech
[23]

which denigrates a group of persons identified by their religion, race or ethnic

origin defames that group and the law may validly prohibit such speech on the
same ground as defamation of an individual.
We do not agree to the contrary view articulated in the immediately
preceeding paragraph. Primarily, an "emotional distress" tort action is personal
in nature, i.e., it is a civil action filed by an individual to assuage the injuries to
[24]

his emotional tranquility due to personal attacks on his character. It has no

application in the instant case since no particular individual was identified in the
disputed article of Bulgar. Also, the purported damage caused by the article,
assuming there was any, falls under the principle of relational harm - which
includes harm to social relationships in the community in the form of
defamation; as distinguished from the principle of reactive harm - which
includes injuries to individual emotional tranquility in the form of an infliction of
emotional distress. In their complaint, respondents clearly asserted an alleged
harm to the standing of Muslims in the community, especially to their activities
in propagating their faith in Metro Manila and in other non-Muslim communities
in the country. It is thus beyond cavil that the present case falls within the
[25]

application of the relational harm principle of tort actions for defamation, rather
than the reactive harm principle on which the concept of emotional
distress properly belongs.
 Moreover, under the Second Restatement of the Law, to recover for the
intentional infliction of emotional distress the plaintiff must show that: (a) The
conduct of the defendant was intentional or in reckless disregard of the plaintiff;
(b) The conduct was extreme and outrageous; (c) There was a causal
connection between the defendant's conduct and the plaintiff's mental distress;
and, (d) The plaintiff's mental distress was extreme and severe. [26]

"Extreme and outrageous conduct" means conduct that is so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in civilized
society. The defendant's actions must have been so terrifying as naturally to
humiliate, embarrass or frighten the plaintiff. Generally, conduct will be found
[27]

to be actionable where the recitation of the facts to an average member of the

community would arouse his resentment against the actor, and lead him or her
to exclaim, "Outrageous!" as his or her reaction. [28]

"Emotional distress" means any highly unpleasant mental reaction such as

extreme grief, shame, humiliation, embarrassment, anger, disappointment,
worry, nausea, mental suffering and anguish, shock, fright, horror, and
chagrin. "Severe emotional distress," in some jurisdictions, refers to any type
[29]

of severe and disabling emotional or mental condition which may be generally

recognized and diagnosed by professionals trained to do so, including
posttraumatic stress disorder, neurosis, psychosis, chronic depression, or
phobia. The plaintiff is required to show, among other things, that he or she
[30]

has suffered emotional distress so severe that no reasonable person could be

expected to endure it; severity of the distress is an element of the cause of
action, not simply a matter of damages. [31]

Any party seeking recovery for mental anguish must prove more than mere
worry, anxiety, vexation, embarrassment, or anger. Liability does not arise from
mere insults, indignities, threats, annoyances, petty expressions, or other
trivialities. In determining whether the tort of outrage had been committed, a
plaintiff is necessarily expected and required to be hardened to a certain
amount of criticism, rough language, and to occasional acts and words that are
definitely inconsiderate and unkind; the mere fact that the actor knows that the
other will regard the conduct as insulting, or will have his feelings hurt, is not
enough. [32]

Hustler Magazine v. Falwell illustrates the test case of a civil action for
[33]

damages on intentional infliction of emotional distress. A parody appeared in

Hustler magazine featuring the American fundamentalist preacher and
evangelist Reverend Jerry Falwell depicting him in an inebriated state having
an incestuous sexual liaison with his mother in an outhouse. Falwell sued
Hustler and its publisher Larry Flynt for damages. The United States District
Court for the Western District of Virginia ruled that the parody was not libelous,
because no reasonable reader would have understood it as a factual assertion
that Falwell engaged in the act described. The jury, however, awarded
$200,000 in damages on a separate count of "intentional infliction of emotional
distress," a cause of action that did not require a false statement of fact to be
made. The United States Supreme Court in a unanimous decision overturned
the jury verdict of the Virginia Court and held that Reverend Falwell may not
recover for intentional infliction of emotional distress. It was argued that the
material might be deemed outrageous and may have been intended to cause
severe emotional distress, but these circumstances were not sufficient to
overcome the free speech rights guaranteed under the First Amendment of the
United States Constitution. Simply stated, an intentional tort causing emotional
distress must necessarily give way to the fundamental right to free speech.
It must be observed that although Falwell was regarded by the U.S. High
Court as a "public figure," he was an individual particularly singled out or
identified in the parody appearing on Hustler magazine. Also, the emotional
distress allegedly suffered by Reverend Falwell involved a reactive interest - an
emotional response to the parody which supposedly injured his psychological
well-being.
Verily, our position is clear that the conduct of petitioners was not extreme
or outrageous. Neither was the emotional distress allegedly suffered by
respondents so severe that no reasonable person could be expected to endure
it. There is no evidence on record that points to that result.
Professor William Prosser, views tort actions on intentional infliction of
emotional distress in this manner - [34]

There is virtually unanimous agreement that such ordinary defendants are not liable
for mere insult, indignity, annoyance, or even threats, where the case is lacking in
other circumstances of aggravation. The reasons are not far to seek. Our manners,
and with them our law, have not yet progressed to the point where we are able to
afford a remedy in the form of tort damages for all intended mental disturbance.
Liability of course cannot be extended to every trivial indignity x x x x The plaintiff
must necessarily be expected and required to be hardened to a certain amount of
rough language, and to acts that are definitely inconsiderate and unkind x x x The
plaintiff cannot recover merely because of hurt feelings.

Professor Calvert Magruder reinforces Prosser with this succinct

observation, viz: [35]
There is no occasion for the law to intervene in every case where someones feelings
are hurt. There must still be freedom to express an unflattering opinion, and some
safety valve must be left through which irascible tempers may blow off relatively
harmless steam.

Thus, it is evident that even American courts are reluctant to adopt a rule of
recovery for emotional harm that would "open up a wide vista of litigation in the
field of bad manners," an area in which a "toughening of the mental hide" was
thought to be a more appropriate remedy. Perhaps of greater concern were
[36]

the questions of causation, proof, and the ability to accurately assess damages
for emotional harm, each of which continues to concern courts today. [37]

In this connection, the doctrines in Chaplinsky and Beauharnais had largely

been superseded by subsequent First Amendment doctrines. Back in simpler
times in the history of free expression the Supreme Court appeared to espouse
a theory, known as the Two-Class Theory, that treated certain types of
expression as taboo forms of speech, beneath the dignity of the First
Amendment. The most celebrated statement of this view was expressed
in Chaplinsky:

There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and the
insulting or fighting words those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.

Today, however, the theory is no longer viable; modern First Amendment

principles have passed it by. American courts no longer accept the view that
speech may be proscribed merely because it is "lewd," "profane,"
"insulting" or otherwise vulgar or offensive. Cohen v. California is
[38] [39]

illustrative: Paul Robert Cohen wore a jacket bearing the words "Fuck the Draft"
in a Los Angeles courthouse in April 1968, which caused his eventual
arrest. Cohen was convicted for violating a California statute prohibiting any
person from "disturb[ing] the peace x x x by offensive conduct." The U.S.
Supreme Court conceded that Cohen's expletive contained in his jacket was
"vulgar," but it concluded that his speech was nonetheless protected by the right
to free speech. It was neither considered an "incitement" to illegal action nor
"obscenity." It did not constitute insulting or "fighting" words for it had not been
directed at a person who was likely to retaliate or at someone who could not
avoid the message. In other words, no one was present in the Los Angeles
courthouse who would have regarded Cohen's speech as a direct personal
insult, nor was there any danger of reactive violence against him.
No specific individual was targeted in the allegedly defamatory words
printed on Cohen's jacket. The conviction could only be justified by Californias
desire to exercise the broad power in preserving the cleanliness of discourse in
the public sphere, which the U.S. Supreme Court refused to grant to the State,
holding that no objective distinctions can be made between vulgar and
nonvulgar speech, and that the emotive elements of speech are just as
essential in the exercise of this right as the purely cognitive. As Mr. Justice
Harlan so eloquently wrote: "[O]ne mans vulgarity is another mans lyric x x x
words are often chosen as much for their emotive as their cognitive
force." With Cohen, the U.S. Supreme Court finally laid the constitutional
[40]

foundation for judicial protection of provocative and potentially offensive

speech.
Similarly, libelous speech is no longer outside the First Amendment
protection. Only one small piece of the Two-Class
Theory in Chaplinsky survives - U.S. courts continue to treat "obscene"
speech as not within the protection of the First Amendment at all. With
respect to the "fighting words" doctrine, while it remains alive it was
modified by the current rigorous clear and present danger test. Thus, [41]

in Cohen the U.S. Supreme Court in applying the test held that there was no
showing that Cohen's jacket bearing the words "Fuck the Draft" had threatened
to provoke imminent violence; and that protecting the sensibilities of onlookers
was not sufficiently compelling interest to restrain Cohen's speech.
Beauharnais, which closely followed the Chaplinsky doctrine, suffered the
same fate as Chaplinsky. Indeed, when Beauharnais was decided in 1952,
the Two-Class Theory was still flourishing. While concededly the U.S. High
Tribunal did not formally abandon Beauharnais, the seminal shifts in U.S.
constitutional jurisprudence substantially undercut Beauharnais and seriously
undermined what is left of its vitality as a precedent. Among the cases that dealt
a crushing impact on Beauharnais and rendered it almost certainly a dead letter
case law are Brandenburg v. Ohio, and, again, Cohen v. California. These
[42] [43]

decisions recognize a much narrower set of permissible grounds for restricting

speech than did Beauharnais. [44]

In Brandenburg, appellant who was a leader of the Ku Klux Klan was

convicted under the Ohio Criminal Syndicalism Statute for advocating the
necessity, duty and propriety of crime, sabotage, violence, or unlawful methods
of terrorism as a means of accomplishing industrial or political reforms; and for
voluntarily assembling with a group formed to teach or advocate the doctrines
of criminal syndicalism. Appellant challenged the statute and was sustained by
the U.S. Supreme Court, holding that the advocacy of illegal action becomes
punishable only if such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action. Except in unusual
[45]

instances, Brandenburg protects the advocacy of lawlessness as long as such

speech is not translated into action.
The importance of the Brandenburg ruling cannot be overemphasized. Prof.
Smolla affirmed that "Brandenburg must be understood as
overruling Beauharnais and eliminating the possibility of treating group
libel under the same First Amendment standards as individual libel." It [46]

may well be considered as one of the lynchpins of the modern doctrine of free
speech, which seeks to give special protection to politically relevant speech.
In any case, respondents' lack of cause of action cannot be cured by the
filing of a class suit. As correctly pointed out by Mr. Justice Jose C. Vitug during
the deliberations, "an element of a class suit is the adequacy of
representation. In determining the question of fair and adequate representation
of members of a class, the court must consider (a) whether the interest of the
named party is coextensive with the interest of the other members of the class;
(b) the proportion of those made parties as it so bears to the total membership
of the class; and, (c) any other factor bearing on the ability of the named party
to speak for the rest of the class.[47]

The rules require that courts must make sure that the persons intervening
should be sufficiently numerous to fully protect the interests of all concerned. In
the present controversy, Islamic Dawah Council of the Philippines, Inc., seeks
in effect to assert the interests not only of the Muslims in the Philippines but of
the whole Muslim world as well. Private respondents obviously lack the
sufficiency of numbers to represent such a global group; neither have they been
able to demonstrate the identity of their interests with those they seek to
represent. Unless it can be shown that there can be a safe guaranty that those
absent will be adequately represented by those present, a class suit, given its
magnitude in this instance, would be unavailing." [48]

Likewise on the matter of damages, we agree that "moral damages may be

recovered only if the plaintiff is able to satisfactorily prove the existence of the
factual basis for the damages and its causal connection with the acts
complained of, and so it must be, as moral damages although incapable of
[49]

pecuniary estimation are designed not to impose a penalty but to compensate

for injury sustained and actual damages suffered. Exemplary damages, on the
[50]

other hand, may only be awarded if claimant is able to establish his right to
moral, temperate, liquidated or compensatory damages. Unfortunately,
[51]

neither of the requirements to sustain an award for either of these damages

would appear to have been adequately established by respondents."
In a pluralistic society like the Philippines where misinformation about
another individual's religion is as commonplace as self-appointed critics of
government, it would be more appropriate to respect the fair criticism of
religious principles, including those which may be outrageously appalling,
immensely erroneous, or those couched as fairly informative comments. The
greater danger in our society is the possibility that it may encourage the
frequency of suits among religious fundamentalists, whether Christian, Muslim,
Hindu, Buddhist, Jewish, or others. This would unnecessarily make the civil
courts a battleground to assert their spiritual ideas, and advance their
respective religious agenda.
It need not be stressed that this Court has no power to determine which is
proper religious conduct or belief; neither does it have the authority to rule on
the merits of one religion over another, nor declare which belief to uphold or
cast asunder, for the validity of religious beliefs or values are outside the sphere
of the judiciary. Such matters are better left for the religious authorities to
address what is rightfully within their doctrine and realm of influence. Courts
must be viewpoint-neutral when it comes to religious matters if only to affirm the
neutrality principle of free speech rights under modern jurisprudence
where "[a]ll ideas are treated equal in the eyes of the First Amendment - even
those ideas that are universally condemned and run counter to constitutional
principles." Under the right to free speech, "there is no such thing as a false
[52]

idea. However pernicious an opinion may seem, we depend for its correction
not on the conscience of judges and juries but on the competition of other
ideas." Denying certiorari and affirming the appellate court decision would
[53]

surely create a chilling effect on the constitutional guarantees of freedom of

speech, of expression, and of the press.
WHEREFORE, the petition is GRANTED. The assailed Decision of the
Court of Appeals dated 27 August 1998 is REVERSED and SET ASIDE, and
the Decision of the RTC-Br. 4, Manila, dismissing the complaint for lack of merit,
is REINSTATED and AFFIRMED. No pronouncement as to costs.
SO ORDERED.

Plessy v. Ferguson (No. 210)

Syllabus
The statute of Louisiana, acts of 1890, c. 111, requiring railway companies
carrying passengers in their coaches in that State, to provide equal, but
separate, accommodations for the white and colored races, by providing two
or more passenger coaches for each passenger train, or by dividing the
passenger coaches by a partition so as to secure separate accommodations;
and providing that no person shall be permitted to occupy seats in coaches
other than the ones assigned to them, on account[p538] of the race they
belong to; and requiring the officer of the passenger train to assign each
passenger to the coach or compartment assigned for the race to which he or
she belong; and imposing fines or imprisonment upon passengers insisting
on going into a coach or compartment other than the one set aide for the
race to which he or she belongs; and conferring upon officers of the train
power to refuse to carry on the train passengers refusing to occupy the
coach or compartment assigned to them, and exempting the railway
company from liability for such refusal, are not in conflict with the provisions
either of the Thirteenth Amendment or of the Fourteenth Amendment to the
Constitution of the United States.
This was a petition for writs of prohibition and certiorari, originally filed in
the Supreme Court of the State by Plessy, the plaintiff in error, against the
Hon. John H. Ferguson, judge of the criminal District Court for the parish of
Orleans, and setting forth in substance the following facts:
That petitioner was a citizen of the United States and a resident of the State
of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian
and one eighth African blood; that the mixture of colored blood was not
discernible in him, and that he was entitled to every recognition, right,
privilege and immunity secured to the citizens of the United States of the
white race by its Constitution and laws; that, on June 7, 1892, he engaged
and paid for a first class passage on the East Louisiana Railway from New
Orleans to Covington, in the same State, and thereupon entered a passenger
train, and took possession of a vacant seat in a coach where passengers of
the white race were accommodated; that such railroad company was
incorporated by the laws of Louisiana as a common carrier, and was not
authorized to distinguish between citizens according to their race. But,
notwithstanding this, petitioner was required by the conductor, under
penalty of ejection from said train and imprisonment, to vacate said coach
and occupy another seat in a coach assigned by said company for persons
not of the white race, and for no other reason than that petitioner was of the
colored race; that, upon petitioner's refusal to comply with such order, he
was, with the aid of a police officer, forcibly ejected from said coach and
hurried off to and imprisoned in the parish jail of[p539] New Orleans, and
there held to answer a charge made by such officer to the effect that he was
guilty of having criminally violated an act of the General Assembly of the
State, approved July 10, 1890, in such case made and provided.
That petitioner was subsequently brought before the recorder of the city for
preliminary examination and committed for trial to the criminal District Court
for the parish of Orleans, where an information was filed against him in the
matter above set forth, for a violation of the above act, which act the
petitioner affirmed to be null and void, because in conflict with the
Constitution of the United States; that petitioner interposed a plea to such
information based upon the unconstitutionality of the act of the General
Assembly, to which the district attorney, on behalf of the State, filed a
demurrer; that, upon issue being joined upon such demurrer and plea, the
court sustained the demurrer, overruled the plea, and ordered petitioner to
plead over to the facts set forth in the information, and that, unless the
judge of the said court be enjoined by a writ of prohibition from further
proceeding in such case, the court will proceed to fine and sentence
petitioner to imprisonment, and thus deprive him of his constitutional rights
set forth in his said plea, notwithstanding the unconstitutionality of the act
under which he was being prosecuted; that no appeal lay from such
sentence, and petitioner was without relief or remedy except by writs of
prohibition and certiorari. Copies of the information and other proceedings in
the criminal District Court were annexed to the petition as an exhibit.
Upon the filing of this petition, an order was issued upon the respondent to
show cause why a writ of prohibition should not issue and be made
perpetual, and a further order that the record of the proceedings had in the
criminal cause be certified and transmitted to the Supreme Court.
To this order the respondent made answer, transmitting a certified copy of
the proceedings, asserting the constitutionality of the law, and averring that,
instead of pleading or admitting that he belonged to the colored race, the
said Plessy declined and refused, either by pleading or otherwise, to
admit[p540] that he was in any sense or in any proportion a colored man.
The case coming on for a hearing before the Supreme Court, that court was
of opinion that the law under which the prosecution was had was
constitutional, and denied the relief prayed for by the petitioner. Ex parte
Plessy, 45 La.Ann. 80. Whereupon petitioner prayed for a writ of error from
this court, which was allowed by the Chief Justice of the Supreme Court of
Louisiana.

TOP

Opinion
BROWN, J., Opinion of the Court
MR. JUSTICE BROWN, after stating the case, delivered the opinion of the
court.
This case turns upon the constitutionality of an act of the General Assembly
of the State of Louisiana, passed in 1890, providing for separate railway
carriages for the white and colored races. Acts 1890, No. 111, p. 152.
The first section of the statute enacts
that all railway companies carrying passengers in their coaches in this State
shall provide equal but separate accommodations for the white and colored
races by providing two or more passenger coaches for each passenger train,
or by dividing the passenger coaches by a partition so as to secure separate
accommodations: Provided, That this section shall not be construed to apply
to street railroads. No person or persons, shall be admitted to occupy seats
in coaches other than the ones assigned to them on account of the race they
belong to.
By the second section, it was enacted
that the officers of such passenger trains shall have power and are hereby
required[p541] to assign each passenger to the coach or compartment used
for the race to which such passenger belongs; any passenger insisting on
going into a coach or compartment to which by race he does not belong shall
be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment
for a period of not more than twenty days in the parish prison, and any
officer of any railroad insisting on assigning a passenger to a coach or
compartment other than the one set aside for the race to which said
passenger belongs shall be liable to a fine of twenty-five dollars, or in lieu
thereof to imprisonment for a period of not more than twenty days in the
parish prison; and should any passenger refuse to occupy the coach or
compartment to which he or she is assigned by the officer of such railway,
said officer shall have power to refuse to carry such passenger on his train,
and for such refusal neither he nor the railway company which he represents
shall be liable for damages in any of the courts of this State.
The third section provides penalties for the refusal or neglect of the officers,
directors, conductors, and employees of railway companies to comply with
the act, with a proviso that "nothing in this act shall be construed as
applying to nurses attending children of the other race." The fourth section is
immaterial.
The information filed in the criminal District Court charged in substance that
Plessy, being a passenger between two stations within the State of
Louisiana, was assigned by officers of the company to the coach used for the
race to which he belonged, but he insisted upon going into a coach used by
the race to which he did not belong. Neither in the information nor plea was
his particular race or color averred. The petition for the writ of prohibition
averred that petitioner was seven-eighths Caucasian and one eighth African
blood; that the mixture of colored blood was not discernible in him, and that
he was entitled to every right, privilege and immunity secured to citizens of
the United States of the white race; and that, upon such theory, he took
possession of a vacant seat in a coach where passengers of the white race
were accommodated, and was ordered by the conductor to
vacate[p542] said coach and take a seat in another assigned to persons of
the colored race, and, having refused to comply with such demand, he was
forcibly ejected with the aid of a police officer, and imprisoned in the parish
jail to answer a charge of having violated the above act.
The constitutionality of this act is attacked upon the ground that it conflicts
both with the Thirteenth Amendment of the Constitution, abolishing slavery,
and the Fourteenth Amendment, which prohibits certain restrictive
legislation on the part of the States.
1. That it does not conflict with the Thirteenth Amendment, which abolished
slavery and involuntary servitude, except as a punishment for crime, is too
clear for argument. Slavery implies involuntary servitude -- a state of
bondage; the ownership of mankind as a chattel, or at least the control of
the labor and services of one man for the benefit of another, and the
absence of a legal right to the disposal of his own person, property and
services. This amendment was said in the Slaughterhouse Cases, 16 Wall.
36, to have been intended primarily to abolish slavery as it had been
previously known in this country, and that it equally forbade Mexican
peonage or the Chinese coolie trade when they amounted to slavery or
involuntary servitude, and that the use of the word "servitude" was intended
to prohibit the use of all forms of involuntary slavery, of whatever class or
name. It was intimated, however, in that case that this amendment was
regarded by the statesmen of that day as insufficient to protect the colored
race from certain laws which had been enacted in the Southern States,
imposing upon the colored race onerous disabilities and burdens and
curtailing their rights in the pursuit of life, liberty and property to such an
extent that their freedom was of little value; and that the Fourteenth
Amendment was devised to meet this exigency.
So, too, in the Civil Rights Cases, 109 U.S. 3, 24, it was said that the act of
a mere individual, the owner of an inn, a public conveyance or place of
amusement, refusing accommodations to colored people cannot be justly
regarded as imposing any badge of slavery or servitude upon the applicant,
but[p543] only as involving an ordinary civil injury, properly cognizable by
the laws of the State and presumably subject to redress by those laws until
the contrary appears. "It would be running the slavery argument into the
ground," said Mr. Justice Bradley,
to make it apply to every act of discrimination which a person may see fit to
make as to the guests he will entertain, or as to the people he will take into
his coach or cab or car, or admit to his concert or theatre, or deal with in
other matters of intercourse or business.
A statute which implies merely a legal distinction between the white and
colored races -- a distinction which is founded in the color of the two races
and which must always exist so long as white men are distinguished from
the other race by color -- has no tendency to destroy the legal equality of
the two races, or reestablish a state of involuntary servitude. Indeed, we do
not understand that the Thirteenth Amendment is strenuously relied upon by
the plaintiff in error in this connection.
2. By the Fourteenth Amendment, all persons born or naturalized in the
United States and subject to the jurisdiction thereof are made citizens of the
United States and of the State wherein they reside, and the States are
forbidden from making or enforcing any law which shall abridge the
privileges or immunities of citizens of the United States, or shall deprive any
person of life, liberty, or property without due process of law, or deny to any
person within their jurisdiction the equal protection of the laws.
The proper construction of this amendment was first called to the attention
of this court in the Slaughterhouse Cases, 16 Wall. 36, which involved,
however, not a question of race, but one of exclusive privileges. The case did
not call for any expression of opinion as to the exact rights it was intended
to secure to the colored race, but it was said generally that its main purpose
was to establish the citizenship of the negro, to give definitions of citizenship
of the United States and of the States, and to protect from the hostile
legislation of the States the privileges and immunities of citizens of the
United States, as distinguished from those of citizens of the States.[p544]
The object of the amendment was undoubtedly to enforce the absolute
equality of the two races before the law, but, in the nature of things, it could
not have been intended to abolish distinctions based upon color, or to
enforce social, as distinguished from political, equality, or a commingling of
the two races upon terms unsatisfactory to either. Laws permitting, and
even requiring, their separation in places where they are liable to be brought
into contact do not necessarily imply the inferiority of either race to the
other, and have been generally, if not universally, recognized as within the
competency of the state legislatures in the exercise of their police power.
The most common instance of this is connected with the establishment of
separate schools for white and colored children, which has been held to be a
valid exercise of the legislative power even by courts of States where the
political rights of the colored race have been longest and most earnestly
enforced.
One of the earliest of these cases is that of Roberts v. City of Boston, 5
Cush. 19, in which the Supreme Judicial Court of Massachusetts held that
the general school committee of Boston had power to make provision for the
instruction of colored children in separate schools established exclusively for
them, and to prohibit their attendance upon the other schools. "The great
principle," said Chief Justice Shaw, p. 206, "advanced by the learned and
eloquent advocate for the plaintiff" (Mr. Charles Sumner),
is that, by the constitution and laws of Massachusetts, all persons without
distinction of age or sex, birth or color, origin or condition, are equal before
the law. . . . But when this great principle comes to be applied to the actual
and various conditions of persons in society, it will not warrant the assertion
that men and women are legally clothed with the same civil and political
powers, and that children and adults are legally to have the same functions
and be subject to the same treatment, but only that the rights of all, as they
are settled and regulated by law, are equally entitled to the paternal
consideration and protection of the law for their maintenance and security.
It was held that the powers of the committee extended to the
establishment[p545] of separate schools for children of different ages,
sexes and colors, and that they might also establish special schools for poor
and neglected children, who have become too old to attend the primary
school and yet have not acquired the rudiments of learning to enable them
to enter the ordinary schools. Similar laws have been enacted by Congress
under its general power of legislation over the District of Columbia,
Rev.Stat.D.C. §§ 281, 282, 283, 310, 319, as well as by the legislatures of
many of the States, and have been generally, if not uniformly, sustained by
the courts. State v. McCann, 21 Ohio St. 198; Lehew v. Brummell, 15
S.W.Rep. 765; Ward v. Flood, 48 California 36; Bertonneau v. School
Directors, 3 Woods 177; People v. Gallagher, 93 N.Y. 438; Cory v.
Carter, 48 Indiana 897; Dawson v. Lee, 3 Kentucky 49.
Laws forbidding the intermarriage of the two races may be said in a
technical sense to interfere with the freedom of contract, and yet have been
universally recognized as within the police power of the State. State v.
Gibson, 36 Indiana 389.
The distinction between laws interfering with the political equality of the
negro and those requiring the separation of the two races in schools,
theatres and railway carriages has been frequently drawn by this court.
Thus, in Strauder v. West Virginia, 100 U.S. 303, it was held that a law of
West Virginia limiting to white male persons, 21 years of age and citizens of
the State, the right to sit upon juries was a discrimination which implied a
legal inferiority in civil society, which lessened the security of the right of the
colored race, and was a step toward reducing them to a condition of
servility. Indeed, the right of a colored man that, in the selection of jurors to
pass upon his life, liberty and property, there shall be no exclusion of his
race and no discrimination against them because of color has been asserted
in a number of cases. Virginia v. Rives, 100 U.S. 313; Neal v. Delaware, 103
U.S. 370; Bush v. Kentucky, 107 U.S. 110; Gibson v. Mississippi, 162 U.S.
565. So, where the laws of a particular locality or the charter of a particular
railway corporation has provided that no person shall be excluded from the
cars on account of[p546] color, we have held that this meant that persons
of color should travel in the same car as white ones, and that the enactment
was not satisfied by the company's providing cars assigned exclusively to
people of color, though they were as good as those which they assigned
exclusively to white persons. Railroad Company v. Brown, 17 Wall. 445.
Upon the other hand, where a statute of Louisiana required those engaged in
the transportation of passengers among the States to give to all persons
traveling within that State, upon vessels employed in that business, equal
rights and privileges in all parts of the vessel, without distinction on account
of race or color, and subjected to an action for damages the owner of such a
vessel, who excluded colored passengers on account of their color from the
cabin set aside by him for the use of whites, it was held to be, so far as it
applied to interstate commerce, unconstitutional and void. Hall v. De
Cuir, 95 U.S. 48. The court in this case, however, expressly disclaimed that
it had anything whatever to do with the statute as a regulation of internal
commerce, or affecting anything else than commerce among the States.
In the Civil Rights Case, 109 U.S. 3, it was held that an act of Congress
entitling all persons within the jurisdiction of the United States to the full and
equal enjoyment of the accommodations, advantages, facilities and
privileges of inns, public conveyances, on land or water, theatres and other
places of public amusement, and made applicable to citizens of every race
and color, regardless of any previous condition of servitude, was
unconstitutional and void upon the ground that the Fourteenth Amendment
was prohibitory upon the States only, and the legislation authorized to be
adopted by Congress for enforcing it was not direct legislation on matters
respecting which the States were prohibited from making or enforcing
certain laws, or doing certain acts, but was corrective legislation such as
might be necessary or proper for counteracting and redressing the effect of
such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley
observed that the Fourteenth Amendment
does not invest Congress with power to legislate upon subjects that are
within the[p547] domain of state legislation, but to provide modes of relief
against state legislation or state action of the kind referred to. It does not
authorize Congress to create a code of municipal law for the regulation of
private rights, but to provide modes of redress against the operation of state
laws and the action of state officers, executive or judicial, when these are
subversive of the fundamental rights specified in the amendment. Positive
rights and privileges are undoubtedly secured by the Fourteenth
Amendment, but they are secured by way of prohibition against state laws
and state proceedings affecting those rights and privileges, and by power
given to Congress to legislate for the purpose of carrying such prohibition
into effect, and such legislation must necessarily be predicated upon such
supposed state laws or state proceedings, and be directed to the correction
of their operation and effect.
Much nearer, and, indeed, almost directly in point is the case of
the Louisville, New Orleans &c. Railway v. Mississippi, 133 U.S. 587, wherein
the railway company was indicted for a violation of a statute of Mississippi
enacting that all railroads carrying passengers should provide equal but
separate accommodations for the white and colored races by providing two
or more passenger cars for each passenger train, or by dividing the
passenger cars by a partition so as to secure separate accommodations. The
case was presented in a different aspect from the one under consideration,
inasmuch as it was an indictment against the railway company for failing to
provide the separate accommodations, but the question considered was the
constitutionality of the law. In that case, the Supreme Court of Mississippi,
66 Mississippi 662, had held that the statute applied solely to commerce
within the State, and that, being the construction of the state statute by its
highest court, was accepted as conclusive. "If it be a matter," said the court,
p. 591,
respecting commerce wholly within a State, and not interfering with
commerce between the States, then obviously there is no violation of the
commerce clause of the Federal Constitution. . . . No question arises under
this section as to the power of the State to separate in different
compartments interstate passengers[p548] or affect in any manner the
privileges and rights of such passengers. All that we can consider is whether
the State has the power to require that railroad trains within her limits shall
have separate accommodations for the two races; that affecting only
commerce within the State is no invasion of the power given to Congress by
the commerce clause.
A like course of reasoning applies to the case under consideration, since the
Supreme Court of Louisiana in the case of the State ex rel. Abbott v. Hicks,
Judge, et al., 44 La.Ann. 770, held that the statute in question did not apply
to interstate passengers, but was confined in its application to passengers
traveling exclusively within the borders of the State. The case was decided
largely upon the authority of Railway Co. v. State, 66 Mississippi 662, and
affirmed by this court in 133 U.S. 587. In the present case, no question of
interference with interstate commerce can possibly arise, since the East
Louisiana Railway appears to have been purely a local line, with both its
termini within the State of Louisiana. Similar statutes for the separation of
the to races upon public conveyances were held to be constitutional in West
Chester &c. Railroad v. Miles, 55 Penn.St. 209; Day v. Owen, 5 Michigan
520; Chicago &c. Railway v. Williams, 5 Illinois 185; Chesapeake &c.
Railroad v. Wells, 85 Tennessee 613; Memphis &c. Railroad v. Benson, 85
Tennessee 627; The Sue, 22 Fed.Rep. 83; Logwood v. Memphis &c.
Railroad, 23 Fed.Rep. 318; McGuinn v. Forbes, 37 Fed.Rep. 639; People v.
King, 18 N.E.Rep. 245; Houck v. South Pac. Railway, 38 Fed.Rep.
226; Heard v. Georgia Railroad Co., 3 Int.Com.Com'n 111; S.C., 1 Ibid. 428.
While we think the enforced separation of the races, as applied to the
internal commerce of the State, neither abridges the privileges or
immunities of the colored man, deprives him of his property without due
process of law, nor denies him the equal protection of the laws within the
meaning of the Fourteenth Amendment, we are not prepared to say that the
conductor, in assigning passengers to the coaches according to their race,
does not act at his peril, or that the provision of the second section of the
act that denies to the passenger compensation[p549] in damages for a
refusal to receive him into the coach in which he properly belongs is a valid
exercise of the legislative power. Indeed, we understand it to be conceded
by the State's Attorney that such part of the act as exempts from liability the
railway company and its officers is unconstitutional. The power to assign to a
particular coach obviously implies the power to determine to which race the
passenger belongs, as well as the power to determine who, under the laws
of the particular State, is to be deemed a white and who a colored person.
This question, though indicated in the brief of the plaintiff in error, does not
properly arise upon the record in this case, since the only issue made is as
to the unconstitutionality of the act so far as it requires the railway to
provide separate accommodations and the conductor to assign passengers
according to their race.
It is claimed by the plaintiff in error that, in any mixed community, the
reputation of belonging to the dominant race, in this instance the white race,
is property in the same sense that a right of action or of inheritance is
property. Conceding this to be so for the purposes of this case, we are
unable to see how this statute deprives him of, or in any way affects his
right to, such property. If he be a white man and assigned to a colored
coach, he may have his action for damages against the company for being
deprived of his so-called property. Upon the other hand, if he be a colored
man and be so assigned, he has been deprived of no property, since he is
not lawfully entitled to the reputation of being a white man.
In this connection, it is also suggested by the learned counsel for the plaintiff
in error that the same argument that will justify the state legislature in
requiring railways to provide separate accommodations for the two races will
also authorize them to require separate cars to be provided for people whose
hair is of a certain color, or who are aliens, or who belong to certain
nationalities, or to enact laws requiring colored people to walk upon one side
of the street and white people upon the other, or requiring white men's
houses to be painted white and colored men's black, or their vehicles or
business signs to be of different colors, upon the theory that one
side[p550] of the street is as good as the other, or that a house or vehicle
of one color is as good as one of another color. The reply to all this is that
every exercise of the police power must be reasonable, and extend only to
such laws as are enacted in good faith for the promotion for the public good,
and not for the annoyance or oppression of a particular class. Thus, in Yick
Wo v. Hopkins, 118 U.S. 356, it was held by this court that a municipal
ordinance of the city of San Francisco to regulate the carrying on of public
laundries within the limits of the municipality violated the provisions of the
Constitution of the United States if it conferred upon the municipal
authorities arbitrary power, at their own will and without regard to
discretion, in the legal sense of the term, to give or withhold consent as to
persons or places without regard to the competency of the persons applying
or the propriety of the places selected for the carrying on of the business. It
was held to be a covert attempt on the part of the municipality to make an
arbitrary and unjust discrimination against the Chinese race. While this was
the case of a municipal ordinance, a like principle has been held to apply to
acts of a state legislature passed in the exercise of the police
power. Railroad Company v. Husen, 95 U.S. 465; Louisville & Nashville
Railroad v. Kentucky, 161 U.S. 677, and cases cited on p. 700; Duggett v.
Hudson, 43 Ohio St. 548; Capen v. Foster, 12 Pick. 48; State ex rel. Wood
v. Baker, 38 Wisconsin 71; Monroe v. Collins, 17 Ohio St. 66; Hulseman v.
Rems, 41 Penn. St. 396; Orman v. Riley, 1 California 48.
So far, then, as a conflict with the Fourteenth Amendment is concerned, the
case reduces itself to the question whether the statute of Louisiana is a
reasonable regulation, and, with respect to this, there must necessarily be a
large discretion on the part of the legislature. In determining the question of
reasonableness, it is at liberty to act with reference to the established
usages, customs, and traditions of the people, and with a view to the
promotion of their comfort and the preservation of the public peace and
good order. Gauged by this standard, we cannot say that a law which
authorizes or even requires the separation of the two races in public
conveyances[p551] is unreasonable, or more obnoxious to the Fourteenth
Amendment than the acts of Congress requiring separate schools for colored
children in the District of Columbia, the constitutionality of which does not
seem to have been questioned, or the corresponding acts of state
legislatures.
We consider the underlying fallacy of the plaintiff's argument to consist in
the assumption that the enforced separation of the two races stamps the
colored race with a badge of inferiority. If this be so, it is not by reason of
anything found in the act, but solely because the colored race chooses to put
that construction upon it. The argument necessarily assumes that if, as has
been more than once the case and is not unlikely to be so again, the colored
race should become the dominant power in the state legislature, and should
enact a law in precisely similar terms, it would thereby relegate the white
race to an inferior position. We imagine that the white race, at least, would
not acquiesce in this assumption. The argument also assumes that social
prejudices may be overcome by legislation, and that equal rights cannot be
secured to the negro except by an enforced commingling of the two races.
We cannot accept this proposition. If the two races are to meet upon terms
of social equality, it must be the result of natural affinities, a mutual
appreciation of each other's merits, and a voluntary consent of individuals.
As was said by the Court of Appeals of New York in People v. Gallagher, 93
N. Y. 438, 448,
this end can neither be accomplished nor promoted by laws which conflict
with the general sentiment of the community upon whom they are designed
to operate. When the government, therefore, has secured to each of its
citizens equal rights before the law and equal opportunities for improvement
and progress, it has accomplished the end for which it was organized, and
performed all of the functions respecting social advantages with which it is
endowed.
Legislation is powerless to eradicate racial instincts or to abolish distinctions
based upon physical differences, and the attempt to do so can only result in
accentuating the difficulties of the present situation. If the civil and political
rights of both races be equal, one cannot be inferior to the other
civilly[p552] or politically. If one race be inferior to the other socially, the
Constitution of the United States cannot put them upon the same plane.
It is true that the question of the proportion of colored blood necessary to
constitute a colored person, as distinguished from a white person, is one
upon which there is a difference of opinion in the different States, some
holding that any visible admixture of black blood stamps the person as
belonging to the colored race (State v. Chaver, 5 Jones [N.C.] 1, p. 11);
others that it depends upon the preponderance of blood (Gray v. State, 4
Ohio 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the
predominance of white blood must only be in the proportion of three-fourths.
(People v. Dean, 4 Michigan 406; Jones v. Commonwealth, 80 Virginia 538).
But these are questions to be determined under the laws of each State, and
are not properly put in issue in this case. Under the allegations of his
petition, it may undoubtedly become a question of importance whether,
under the laws of Louisiana, the petitioner belongs to the white or colored
race.
The judgment of the court below is, therefore,
Affirmed.

TOP

Dissent
HARLAN, J., Dissenting Opinion
MR. JUSTICE HARLAN, dissenting.
By the Louisiana statute the validity of which is here involved, all railway
companies (other than street railroad companies) carrying passengers in
that State are required to have separate but equal accommodations for
white and colored persons
by providing two or more passenger coaches for each passenger train, or by
dividing the passenger coaches by a partition so as to secure separate
accommodations.
Under this statute, no colored person is permitted to occupy a seat in a
coach assigned to white persons, nor any white person to occupy a seat in a
coach assigned to colored persons. The managers of the railroad are not
allowed to exercise any discretion in the premises, but are required to assign
each passenger to some coach or compartment set apart for the exclusive
use of his race. If a passenger insists upon going into a coach or
compartment not set apart for persons of his race,[p553] he is subject to
be fined or to be imprisoned in the parish jail. Penalties are prescribed for
the refusal or neglect of the officers, directors, conductors and employees of
railroad companies to comply with the provisions of the act.
Only "nurses attending children of the other race " are excepted from the
operation of the statute. No exception is made of colored attendants
traveling with adults. A white man is not permitted to have his colored
servant with him in the same coach, even if his condition of health requires
the constant, personal assistance of such servant. If a colored maid insists
upon riding in the same coach with a white woman whom she has been
employed to serve, and who may need her personal attention while
traveling, she is subject to be fined or imprisoned for such an exhibition of
zeal in the discharge of duty.
While there may be in Louisiana persons of different races who are not
citizens of the United States, the words in the act "white and colored races"
necessarily include all citizens of the United States of both races residing in
that State. So that we have before us a state enactment that compels, under
penalties, the separation of the two races in railroad passenger coaches, and
makes it a crime for a citizen of either race to enter a coach that has been
assigned to citizens of the other race.
Thus, the State regulates the use of a public highway by citizens of the
United States solely upon the basis of race.
However apparent the injustice of such legislation may be, we have only to
consider whether it is consistent with the Constitution of the United States.
That a railroad is a public highway, and that the corporation which owns or
operates it is in the exercise of public functions, is not, at this day, to be
disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam
Navigation Co. v. Merchants' Bank, 6 How. 344, 382, said that a common
carrier was in the exercise
of a sort of public office, and has public duties to perform, from which he
should not be permitted to exonerate himself without the assent of the
parties concerned.
Mr. Justice Strong, delivering the judgment of[p554] this court in Olcott v.
The Supervisors, 16 Wall. 678, 694, said:
That railroads, though constructed by private corporations and owned by
them, are public highways has been the doctrine of nearly all the courts ever
since such conveniences for passage and transportation have had any
existence. Very early the question arose whether a State's right of eminent
domain could be exercised by a private corporation created for the purpose
of constructing a railroad. Clearly it could not unless taking land for such a
purpose by such an agency is taking land for public use. The right of
eminent domain nowhere justifies taking property for a private use. Yet it is
a doctrine universally accepted that a state legislature may authorize a
private corporation to take land for the construction of such a road, making
compensation to the owner. What else does this doctrine mean if not that
building a railroad, though it be built by a private corporation, is an act done
for a public use.
So, in Township of Pine Grove v. Talcott, 19 Wall. 666, 676: "Though the
corporation [a railroad company] was private, its work was public, as much
so as if it were to be constructed by the State." So, in Inhabitants of
Worcester v. Western Railroad Corporation, 4 Met. 564:
The establishment of that great thoroughfare is regarded as a public work,
established by public authority, intended for the public use and benefit, the
use of which is secured to the whole community, and constitutes, therefore,
like a canal, turnpike or highway, a public easement. It is true that the real
and personal property necessary to the establishment and management of
the railroad is vested in the corporation, but it is in trust for the public.
In respect of civil rights common to all citizens, the Constitution of the
United States does not, I think, permit any public authority to know the race
of those entitled to be protected in the enjoyment of such rights. Every true
man has pride of race, and, under appropriate circumstances, when the
rights of others, his equals before the law, are not to be affected, it is his
privilege to express such pride and to take such action based upon it as to
him seems proper. But I deny that any legislative body or judicial tribunal
may have regard to the[p555] race of citizens when the civil rights of those
citizens are involved. Indeed, such legislation as that here in question is
inconsistent not only with that equality of rights which pertains to
citizenship, National and State, but with the personal liberty enjoyed by
everyone within the United States.
The Thirteenth Amendment does not permit the withholding or the
deprivation of any right necessarily inhering in freedom. It not only struck
down the institution of slavery as previously existing in the United States,
but it prevents the imposition of any burdens or disabilities that constitute
badges of slavery or servitude. It decreed universal civil freedom in this
country. This court has so adjudged. But that amendment having been found
inadequate to the protection of the rights of those who had been in slavery,
it was followed by the Fourteenth Amendment, which added greatly to the
dignity and glory of American citizenship and to the security of personal
liberty by declaring that
all persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside,
and that
no State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty or property without due process of law, nor deny to
any person within its jurisdiction the equal protection of the laws.
These two amendments, if enforced according to their true intent and
meaning, will protect all the civil rights that pertain to freedom and
citizenship. Finally, and to the end that no citizen should be denied, on
account of his race, the privilege of participating in the political control of his
country, it as declared by the Fifteenth Amendment that
the right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color or
previous condition of servitude.
These notable additions to the fundamental law were welcomed by the
friends of liberty throughout the world. They removed the race line from our
governmental systems. They had, as this court has said, a common purpose,
namely to secure
to a race recently emancipated, a race that through[p556] many
generations have been held in slavery, all the civil rights that the superior
race enjoy.
They declared, in legal effect, this court has further said,
that the law in the States shall be the same for the black as for the white;
that all persons, whether colored or white, shall stand equal before the laws
of the States, and, in regard to the colored race, for whose protection the
amendment was primarily designed, that no discrimination shall be made
against them by law because of their color.
We also said:
The words of the amendment, it is true, are prohibitory, but they contain a
necessary implication of a positive immunity, or right, most valuable to the
colored race -- the right to exemption from unfriendly legislation against
them distinctively as colored -- exemption from legal discriminations,
implying inferiority in civil society, Lessening the security of their enjoyment
of the rights which others enjoy, and discriminations which are steps
towards reducing them to the condition of a subject race.
It was, consequently, adjudged that a state law that excluded citizens of the
colored race from juries, because of their race and however well qualified in
other respects to discharge the duties of jurymen, was repugnant to the
Fourteenth Amendment. Strauder v. West Virginia, 100 U.S. 303, 306,
307; Virginia v. Rives, 100 U.S. 313; Ex parte Virginia, 100 U.S. 339; Neal
v. Delaware, 103 U.S. 370, 386; Bush v. Kentucky, 107 U.S. 110, 116. At
the present term, referring to the previous adjudications, this court declared
that
underlying all of those decisions is the principle that the Constitution of the
United States, in its present form, forbids, so far as civil and political rights
are concerned, discrimination by the General Government or the States
against any citizen because of his race. All citizens are equal before the law.
Gibson v. Mississippi, 162 U.S. 565.
The decisions referred to show the scope of the recent amendments of the
Constitution. They also show that it is not within the power of a State to
prohibit colored citizens, because of their race, from participating as jurors in
the administration of justice.
It as said in argument that the statute of Louisiana does[p557] not
discriminate against either race, but prescribes a rule applicable alike to
white and colored citizens. But this argument does not meet the difficulty.
Everyone knows that the statute in question had its origin in the purpose not
so much to exclude white persons from railroad cars occupied by blacks as
to exclude colored people from coaches occupied by or assigned to white
persons. Railroad corporations of Louisiana did not make discrimination
among whites in the matter of accommodation for travelers. The thing to
accomplish was, under the guise of giving equal accommodation for whites
and blacks, to compel the latter to keep to themselves while traveling in
railroad passenger coaches. No one would be so wanting in candor a to
assert the contrary. The fundamental objection, therefore, to the statute is
that it interferes with the personal freedom of citizens. "Personal liberty," it
has been well said,
consists in the power of locomotion, of changing situation, or removing one's
person to whatsoever places one's own inclination may direct, without
imprisonment or restraint unless by due course of law.
1 Bl.Com. *134. If a white man and a black man choose to occupy the same
public conveyance on a public highway, it is their right to do so, and no
government, proceeding alone on grounds of race, can prevent it without
infringing the personal liberty of each.
It is one thing for railroad carriers to furnish, or to be required by law to
furnish, equal accommodations for all whom they are under a legal duty to
carry. It is quite another thing for government to forbid citizens of the white
and black races from traveling in the same public conveyance, and to punish
officers of railroad companies for permitting persons of the two races to
occupy the same passenger coach. If a State can prescribe, as a rule of civil
conduct, that whites and blacks shall not travel as passengers in the same
railroad coach, why may it not so regulate the use of the streets of its cities
and towns as to compel white citizens to keep on one side of a street and
black citizens to keep on the other? Why may it not, upon like grounds,
punish whites and blacks who ride together in streetcars or in open vehicles
on a public road[p558] or street? Why may it not require sheriffs to assign
whites to one side of a courtroom and blacks to the other? And why may it
not also prohibit the commingling of the two races in the galleries of
legislative halls or in public assemblages convened for the consideration of
the political questions of the day? Further, if this statute of Louisiana is
consistent with the personal liberty of citizens, why may not the State
require the separation in railroad coaches of native and naturalized citizens
of the United States, or of Protestants and Roman Catholics?
The answer given at the argument to these questions was that regulations of
the kind they suggest would be unreasonable, and could not, therefore,
stand before the law. Is it meant that the determination of questions of
legislative power depends upon the inquiry whether the statute whose
validity is questioned is, in the judgment of the courts, a reasonable one,
taking all the circumstances into consideration? A statute may be
unreasonable merely because a sound public policy forbade its enactment.
But I do not understand that the courts have anything to do with the policy
or expediency of legislation. A statute may be valid and yet, upon grounds of
public policy, may well be characterized as unreasonable. Mr. Sedgwick
correctly states the rule when he says that, the legislative intention being
clearly ascertained,
the courts have no other duty to perform than to execute the legislative will,
without any regard to their views as to the wisdom or justice of the
particular enactment.
Stat. & Const.Constr. 324. There is a dangerous tendency in these latter
days to enlarge the functions of the courts by means of judicial interference
with the will of the people as expressed by the legislature. Our institutions
have the distinguishing characteristic that the three departments of
government are coordinate and separate. Each must keep within the limits
defined by the Constitution. And the courts best discharge their duty by
executing the will of the lawmaking power, constitutionally expressed,
leaving the results of legislation to be dealt with by the people through their
representatives. Statutes must always have a reasonable construction.
Sometimes they are to be construed strictly; sometimes liberally, in order to
carry out the legislative[p559] will. But however construed, the intent of
the legislature is to be respected, if the particular statute in question is valid,
although the courts, looking at the public interests, may conceive the statute
to be both unreasonable and impolitic. If the power exists to enact a statute,
that ends the matter so far as the courts are concerned. The adjudged cases
in which statutes have been held to be void because unreasonable are those
in which the means employed by the legislature were not at all germane to
the end to which the legislature was competent.
The white race deems itself to be the dominant race in this country. And so
it is in prestige, in achievements, in education, in wealth and in power. So, I
doubt not, it will continue to be for all time if it remains true to its great
heritage and holds fast to the principles of constitutional liberty. But in view
of the Constitution, in the eye of the law, there is in this country no superior,
dominant, ruling class of citizens. There is no caste here. Our Constitution is
color-blind, and neither knows nor tolerates classes among citizens. In
respect of civil rights, all citizens are equal before the law. The humblest is
the peer of the most powerful. The law regards man as man, and takes no
account of his surroundings or of his color when his civil rights as
guaranteed by the supreme law of the land are involved. It is therefore to be
regretted that this high tribunal, the final expositor of the fundamental law
of the land, has reached the conclusion that it is competent for a State to
regulate the enjoyment by citizens of their civil rights solely upon the basis
of race.
In my opinion, the judgment this day rendered will, in time, prove to be
quite as pernicious as the decision made by this tribunal in the Dred Scott
Case. It was adjudged in that case that the descendants of Africans who
were imported into this country and sold as slaves were not included nor
intended to be included under the word "citizens" in the Constitution, and
could not claim any of the rights and privileges which that instrument
provided for and secured to citizens of the United States; that, at the time of
the adoption of the Constitution, they were
considered as a subordinate and inferior class of beings, who had been
subjugated by the dominant[p560] race, and, whether emancipated or not,
yet remained subject to their authority, and had no rights or privileges but
such as those who held the power and the government might choose to
grant them.
19 How. 393, 404. The recent amendments of the Constitution, it was
supposed, had eradicated these principles from our institutions. But it seems
that we have yet, in some of the States, a dominant race -- a superior class
of citizens, which assumes to regulate the enjoyment of civil rights, common
to all citizens, upon the basis of race. The present decision, it may well be
apprehended, will not only stimulate aggressions, more or less brutal and
irritating, upon the admitted rights of colored citizens, but will encourage the
belief that it is possible, by means of state enactments, to defeat the
beneficent purposes which the people of the United States had in view when
they adopted the recent amendments of the Constitution, by one of which
the blacks of this country were made citizens of the United States and of the
States in which they respectively reside, and whose privileges and
immunities, as citizens, the States are forbidden to abridge. Sixty millions of
whites are in no danger from the presence here of eight millions of blacks.
The destinies of the two races in this country are indissolubly linked
together, and the interests of both require that the common government of
all shall not permit the seeds of race hate to be planted under the sanction
of law. What can more certainly arouse race hate, what more certainly
create and perpetuate a feeling of distrust between these races, than state
enactments which, in fact, proceed on the ground that colored citizens are
so inferior and degraded that they cannot be allowed to sit in public coaches
occupied by white citizens. That, as all will admit, is the real meaning of
such legislation as was enacted in Louisiana.
The sure guarantee of the peace and security of each race is the clear,
distinct, unconditional recognition by our governments, National and State,
of every right that inheres in civil freedom, and of the equality before the
law of all citizens of the United States, without regard to race. State
enactments regulating the enjoyment of civil rights upon the basis of race,
and cunningly devised to defeat legitimate results of the[p561] war under
the pretence of recognizing equality of rights, can have no other result than
to render permanent peace impossible and to keep alive a conflict of races
the continuance of which must do harm to all concerned. This question is not
met by the suggestion that social equality cannot exist between the white
and black races in this country. That argument, if it can be properly
regarded as one, is scarcely worthy of consideration, for social equality no
more exists between two races when traveling in a passenger coach or a
public highway than when members of the same races sit by each other in a
street car or in the jury box, or stand or sit with each other in a political
assembly, or when they use in common the street of a city or town, or when
they are in the same room for the purpose of having their names placed on
the registry of voters, or when they approach the ballot box in order to
exercise the high privilege of voting.
There is a race so different from our own that we do not permit those
belonging to it to become citizens of the United States. Persons belonging to
it are, with few exceptions, absolutely excluded from our country. I allude to
the Chinese race. But, by the statute in question, a Chinaman can ride in the
same passenger coach with white citizens of the United States, while citizens
of the black race in Louisiana, many of whom, perhaps, risked their lives for
the preservation of the Union, who are entitled, by law, to participate in the
political control of the State and nation, who are not excluded, by law or by
reason of their race, from public stations of any kind, and who have all the
legal rights that belong to white citizens, are yet declared to be criminals,
liable to imprisonment, if they ride in a public coach occupied by citizens of
the white race. It is scarcely just to say that a colored citizen should not
object to occupying a public coach assigned to his own race. He does not
object, nor, perhaps, would he object to separate coaches for his race if his
rights under the law were recognized. But he objecting, and ought never to
cease objecting, to the proposition that citizens of the white and black race
can be adjudged criminals because they sit, or claim the right to sit, in the
same public coach on a public highway.[p562]
The arbitrary separation of citizens on the basis of race while they are on a
public highway is a badge of servitude wholly inconsistent with the civil
freedom and the equality before the law established by the Constitution. It
cannot be justified upon any legal grounds.
If evils will result from the commingling of the two races upon public
highways established for the benefit of all, they will be infinitely less than
those that will surely come from state legislation regulating the enjoyment of
civil rights upon the basis of race. We boast of the freedom enjoyed by our
people above all other peoples. But it is difficult to reconcile that boast with
a state of the law which, practically, puts the brand of servitude and
degradation upon a large class of our fellow citizens, our equals before the
law. The thin disguise of "equal" accommodations for passengers in railroad
coaches will not mislead anyone, nor atone for the wrong this day done.
The result of the whole matter is that, while this court has frequently
adjudged, and at the present term has recognized the doctrine, that a State
cannot, consistently with the Constitution of the United States, prevent white
and black citizens, having the required qualifications for jury service, from
sitting in the same jury box, it is now solemnly held that a State may
prohibit white and black citizens from sitting in the same passenger coach on
a public highway, or may require that they be separated by a "partition,"
when in the same passenger coach. May it not now be reasonably expected
that astute men of the dominant race, who affect to be disturbed at the
possibility that the integrity of the white race may be corrupted, or that its
supremacy will be imperiled, by contact on public highways with black
people, will endeavor to procure statutes requiring white and black jurors to
be separated in the jury box by a "partition," and that, upon retiring from
the courtroom to consult as to their verdict, such partition, if it be a
moveable one, shall be taken to their consultation room and set up in such
way as to prevent black jurors from coming too close to their brother jurors
of the white race. If the "partition" used in the courtroom happens to be
stationary, provision could be made for screens with openings
through[p563] which jurors of the two races could confer as to their verdict
without coming into personal contact with each other. I cannot see but that,
according to the principles this day announced, such state legislation,
although conceived in hostility to, and enacted for the purpose of
humiliating, citizens of the United States of a particular race, would be held
to be consistent with the Constitution.
I do not deem it necessary to review the decisions of state courts to which
reference was made in argument. Some, and the most important, of them
are wholly inapplicable because rendered prior to the adoption of the last
amendments of the Constitution, when colored people had very few rights
which the dominant race felt obliged to respect. Others were made at a time
when public opinion in many localities was dominated by the institution of
slavery, when it would not have been safe to do justice to the black man,
and when, so far as the rights of blacks were concerned, race prejudice was,
practically, the supreme law of the land. Those decisions cannot be guides in
the era introduced by the recent amendments of the supreme law, which
established universal civil freedom, gave citizenship to all born or naturalized
in the United States and residing here, obliterated the race line from our
systems of governments, National and State, and placed our free institutions
upon the broad and sure foundation of the equality of all men before the
law.
I am of opinion that the statute of Louisiana is inconsistent with the personal
liberty of citizens, white and black, in that State, and hostile to both the
spirit and letter of the Constitution of the United States. If laws of like
character should be enacted in the several States of the Union, the effect
would be in the highest degree mischievous. Slavery, as an institution
tolerated by law would, it is true, have disappeared from our country, but
there would remain a power in the States, by sinister legislation, to interfere
with the full enjoyment of the blessings of freedom to regulate civil rights,
common to all citizens, upon the basis of race, and to place in a condition of
legal inferiority a large body of American citizens now constituting a part of
the political community called the[p564] People of the United States, for
whom and by whom, through representatives, our government is
administered. Such a system is inconsistent with the guarantee given by the
Constitution to each State of a republican form of government, and may be
stricken down by Congressional action, or by the courts in the discharge of
their solemn duty to maintain the supreme law of the land, anything in the
constitution or laws of any State to the contrary notwithstanding.
For the reasons stated, I am constrained to withhold my assent from the
opinion and judgment of the majority.
MR. JUSTICE BREWER did not hear the argument or participate in the
decision of this case.

Korematsu vs. US

Brief Fact Summary. During World War II, a military commander ordered all persons of
Japanese descent to evacuate the West Coast. The Petitioner, Korematsu (Petitioner), a
United States citizen of Japanese descent, was convicted for failing to comply with the
order.

Synopsis of Rule of Law. Legal restrictions that curtail the civil rights of a single racial
group are subject to the most rigid scrutiny. But, pressing public necessity may sometimes
justify such restrictions.

Facts. President of the United States Franklin Roosevelt (President Roosevelt) issued
an executive order authorizing military commanders to prescribe military areas from
which any or all persons may be excluded. Thereupon, a military commander ordered
all persons of Japanese descent, whether or not they were United States citizens, to
leave their homes on the West Coast and to report to “Assembly Centers.” The
Petitioner, a United States citizen of unchallenged loyalty, but of Japanese descent, was
convicted under a federal law making it an offense to fail to comply with such military
orders.

Issue. Was it within the power of Congress and the Executive to exclude persons of
Japanese ancestry from the West Coast at the time that they were excluded?

Gideon v. Wainwright
Facts:
Clarence Earl Gideon was an unlikely hero. He was a man with an eighth-grade
education who ran away from home when he was in middle school. He spent much of
his early adult life as a drifter, spending time in and out of prisons for nonviolent crimes.

Gideon was charged with breaking and entering with the intent to commit a
misdemeanor, which is a felony under Florida law. At trial, Gideon appeared in court
without an attorney. In open court, he asked the judge to appoint counsel for him
because he could not afford an attorney. The trial judge denied Gideon’s request
because Florida law only permitted appointment of counsel for poor defendants charged
with capital offenses.

At trial, Gideon represented himself – he made an opening statement to the jury, cross-
examined the prosecution’s witnesses, presented witnesses in his own defense,
declined to testify himself, and made arguments emphasizing his innocence. Despite
his efforts, the jury found Gideon guilty and he was sentenced to five years
imprisonment.

Gideon sought relief from his conviction by filing a petition for writ of habeas corpus in
the Florida Supreme Court. In his petition, Gideon challenged his conviction and
sentence on the ground that the trial judge’s refusal to appoint counsel violated
Gideon’s constitutional rights. The Florida Supreme Court denied Gideon’s petition.

Gideon next filed a handwritten petition in the Supreme Court of the United States. The
Court agreed to hear the case to resolve the question of whether the right to counsel
guaranteed under the Sixth Amendment of the Constitution applies to defendants in
state court.

Procedure:
Lower Courts: Bay County Circuit Court, Fourteenth Judicial Circuit of Florida
Lower Court Ruling: The trial judge denied Gideon’s request for a court-appointed
attorney because, under Florida law, counsel could only be appointed for a poor
defendant charged with a capital offense. The Florida Supreme Court agreed with the
trial court and denied all relief.

Issue:
A prior decision of the Court’s, Betts v. Brady, 316 U.S. 455 (1942), held that the refusal
to appoint counsel for an indigent defendant charged with a felony in state court did not
necessarily violate the Due Process Clause of the Fourteenth Amendment. The Court
granted Gideon’s petition for a writ of certiorari – that is, agreed to hear Gideon’s case
and review the decision of the lower court – in order to determine whether Betts should
be reconsidered.

Ruling:
Reversed and remanded. In its opinion, the Court unanimously overruled Betts v.
Brady.

Argued: January 15, 1963

Decided: March 18, 1963

Unanimous Decision: Justice Black (who dissented in Betts) wrote the opinion of the
court. Justices Douglas, Clark, and Harlan each wrote concurring opinions.

Reasoning:
The Court held that the Sixth Amendment’s guarantee of counsel is a fundamental right
essential to a fair trial and, as such, applies the states through the Due Process Clause
of the Fourteenth Amendment. In overturning Betts, Justice Black stated that “reason
and reflection require us to recognize that in our adversary system of criminal justice,
any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair
trial unless counsel is provided for him.” He further wrote that the “noble ideal” of “fair
trials before impartial tribunals in which ever defendant stands equal before the law . . .
cannot be realized if the poor man charged with crime has to face his accusers without
a lawyer to assist him.”

Miranda v. Arizona
Facts
The Supreme Court’s decision in Miranda v. Arizona addressed four different cases
involving custodial interrogations. In each of these cases, the defendant was questioned
 by police officers, detectives, or a prosecuting attorney in a room in which he was cut off
from the outside world. In none of these cases was the defendant given a full and
effective warning of his rights at the outset of the interrogation process. In all the cases,
the questioning elicited oral admissions and, in three of them, signed statements that
were admitted at trial.

 Miranda v. Arizona: Miranda was arrested at his home and taken in custody to a police station
where he was identified by the complaining witness. He was then interrogated by two police
officers for two hours, which resulted in a signed, written confession. At trial, the oral and written
confessions were presented to the jury. Miranda was found guilty of kidnapping and rape and
was sentenced to 20-30 years imprisonment on each count. On appeal, the Supreme Court of
Arizona held that Miranda’s constitutional rights were not violated in obtaining the confession.
 Vignera v. New York: Vignera was picked up by New York police in connection with the robbery
of a dress shop that had occurred three days prior. He was first taken to the 17th Detective
Squad headquarters. He was then taken to the 66th Detective Squad, where he orally admitted
the robbery and was placed under formal arrest. He was then taken to the 70th Precinct for
detention, where he was questioned by an assistant district attorney in the presence of a
hearing reporter who transcribed the questions and answers. At trial, the oral confession and
the transcript were presented to the jury. Vignera was found guilty of first degree robbery and
sentenced to 30-60 years imprisonment. The conviction was affirmed without opinion by the
Appellate Division and the Court of Appeals.
 Westover v. United States: Westover was arrested by local police in Kansas City as a suspect in
two Kansas City robberies and taken to a local police station. A report was also received from
the FBI that Westover was wanted on a felony charge in California. Westover was interrogated
the night of the arrest and the next morning by local police. Then, FBI agents continued the
interrogation at the station. After two-and-a-half hours of interrogation by the FBI, Westover
signed separate confessions, which had been prepared by one of the agents during the
interrogation, to each of the two robberies in California. These statements were introduced at
trial. Westover was convicted of the California robberies and sentenced to 15 years’
imprisonment on each count. The conviction was affirmed by the Court of Appeals for the Ninth
Circuit.
 California v. Stewart: In the course of investigating a series of purse-snatch robberies in which
one of the victims died of injuries inflicted by her assailant, Stewart was identified as the
endorser of checks stolen in one of the robberies. Steward was arrested at his home. Police
also arrested Stewart’s wife and three other people who were visiting him. Stewart was placed
in a cell, and, over the next five days, was interrogated on nine different occasions. During the
ninth interrogation session, Stewart stated that he had robbed the deceased, but had not meant
to hurt her. At that time, police released the four other people arrested with Stewart because
there was no evidence to connect any of them with the crime. At trial, Stewart’s statements were
introduced. Stewart was convicted of robbery and first-degree murder and sentenced to death.
The Supreme Court of California reversed, holding that Stewart should have been advised of his
right to remain silent and his right to counsel.

Issues
Whether “statements obtained from an individual who is subjected to custodial police
interrogation” are admissible against him in a criminal trial and whether “procedures
which assure that the individual is accorded his privilege under the Fifth Amendment to
the Constitution not to be compelled to incriminate himself” are necessary.

Supreme Court holding

The Court held that “there can be no doubt that the Fifth Amendment privilege is
available outside of criminal court proceedings and serves to protect persons in all
settings in which their freedom of action is curtailed in any significant way from being
compelled to incriminate themselves.” As such, “the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial interrogation
of the defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination. By custodial interrogation, we mean
questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.”

The Court further held that “without proper safeguards the process of in-custody
interrogation of persons suspected or accused of crime contains inherently compelling
pressures which work to undermine the individual’s will to resist and to compel him to
speak where he would otherwise do so freely.” Therefore, a defendant “must be warned
prior to any questioning that he has the right to remain silent, that anything he says can
be used against him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires.”

The Supreme Court reversed the judgment of the Supreme Court of Arizona in Miranda,
reversed the judgment of the New York Court of Appeals in Vignera, reversed the
judgment of the Court of Appeals for the Ninth Circuit in Westover, and affirmed the
judgment of the Supreme Court of California in Stewart.

UNITED STATES v. WINDSOR, executor of the ESTATE OF SPYER, et al.

certiorari to the united states court of appeals for the second circuit

No. 12–307. Argued March 27, 2013—Decided June 26, 2013

The State of New York recognizes the marriage of New York residents Edith Windsor
and Thea Spyer, who wed in Ontario, Canada, in 2007. When Spyer died in 2009, she
left her entire estate to Windsor. Windsor sought to claim the federal estate tax
exemption for surviving spouses, but was barred from doing so by §3 of the federal
Defense of Marriage Act (DOMA), which amended the Dictionary Act—a law providing
rules of construction for over 1,000 federal laws and the whole realm of federal
regulations—to define “marriage” and “spouse” as excluding same-sex partners.
Windsor paid $363,053 in estate taxes and sought a refund, which the Internal Revenue
Service denied. Windsor brought this refund suit, contending that DOMA violates the
principles of equal protection incorporated in the Fifth Amendment. While the suit was
pending, the Attorney General notified the Speaker of the House of Representatives
that the Department of Justice would no longer defend §3’s constitutionality. In
response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives
voted to intervene in the litigation to defend §3’s constitutionality. The District Court
permitted the intervention. On the merits, the court ruled against the United States,
finding §3 unconstitutional and ordering the Treasury to refund Windsor’s tax with
interest. The Second Circuit affirmed. The United States has not complied with the
judgment.

Held:

1. This Court has jurisdiction to consider the merits of the case. This case clearly
presented a concrete disagreement between opposing parties that was suitable for
judicial resolution in the District Court, but the Executive’s decision not to defend §3’s
constitutionality in court while continuing to deny refunds and assess deficiencies
introduces a complication. Given the Government’s concession, amicus contends, once
the District Court ordered the refund, the case should have ended and the appeal been
dismissed. But this argument elides the distinction between Article III’s jurisdictional
requirements and the prudential limits on its exercise, which are “essentially matters of
judicial self-governance.” Warth v. Seldin, 422 U. S. 490 . Here, the United States
retains a stake sufficient to support Article III jurisdiction on appeal and in this Court.
The refund it was ordered to pay Windsor is “a real and immediate economic injury,”
Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 , even if the Executive
disagrees with §3 of DOMA. Windsor’s ongoing claim for funds that the United States
refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. Cf. INS
v. Chadha, 462 U. S. 919 .

Prudential considerations, however, demand that there be “concrete adverseness

which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.” Baker v. Carr, 369 U. S. 186 . Unlike
Article III requirements—which must be satisfied by the parties before judicial
consideration is appropriate—prudential factors that counsel against hearing this case
are subject to “countervailing considerations [that] may outweigh the concerns
underlying the usual reluctance to exert judicial power.” Warth, supra, at 500–501. One
such consideration is the extent to which adversarial presentation of the issues is
ensured by the participation of amici curiae prepared to defend with vigor the legislative
act’s constitutionality. See Chadha, supra, at 940. Here, BLAG’s substantial adversarial
argument for §3’s constitutionality satisfies prudential concerns that otherwise might
counsel against hearing an appeal from a decision with which the principal parties
agree. This conclusion does not mean that it is appropriate for the Executive as a
routine exercise to challenge statutes in court instead of making the case to Congress
for amendment or repeal. But this case is not routine, and BLAG’s capable defense
ensures that the prudential issues do not cloud the merits question, which is of
immediate importance to the Federal Government and to hundreds of thousands of
persons. Pp. 5–13.
 2. DOMA is unconstitutional as a deprivation of the equal liberty of persons that is
protected by the Fifth Amendment. Pp. 13–26.

(a) By history and tradition the definition and regulation of marriage has been
treated as being within the authority and realm of the separate States. Congress has
enacted discrete statutes to regulate the meaning of marriage in order to further federal
policy, but DOMA, with a directive applicable to over 1,000 federal statues and the
whole realm of federal regulations, has a far greater reach. Its operation is also directed
to a class of persons that the laws of New York, and of 11 other States, have sought to
protect. Assessing the validity of that intervention requires discussing the historical and
traditional extent of state power and authority over marriage.

Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1

, “regulation of domestic relations” is “an area that has long been regarded as a virtually
exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393 . The significance of
state responsibilities for the definition and regulation of marriage dates to the Nation’s
beginning; for “when the Constitution was adopted the common understanding was that
the domestic relations of husband and wife and parent and child were matters reserved
to the States,” Ohio ex rel. Popovici v. Agler, 280 U. S. 379 –384. Marriage laws may
vary from State to State, but they are consistent within each State.

DOMA rejects this long-established precept. The State’s decision to give this class of
persons the right to marry conferred upon them a dignity and status of immense import.
But the Federal Government uses the state-defined class for the opposite purpose—to
impose restrictions and disabilities. The question is whether the resulting injury and
indignity is a deprivation of an essential part of the liberty protected by the Fifth
Amendment, since what New York treats as alike the federal law deems unlike by a law
designed to injure the same class the State seeks to protect. New York’s actions were a
proper exercise of its sovereign authority. They reflect both the community’s considered
perspective on the historical roots of the institution of marriage and its evolving
understanding of the meaning of equality. Pp. 13–20.

(b) By seeking to injure the very class New York seeks to protect, DOMA violates
basic due process and equal protection principles applicable to the Federal
Government. The Constitution’s guarantee of equality “must at the very least mean that
a bare congressional desire to harm a politically unpopular group cannot” justify
disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528 –
535. DOMA cannot survive under these principles. Its unusual deviation from the
tradition of recognizing and accepting state definitions of marriage operates to deprive
same-sex couples of the benefits and responsibilities that come with federal recognition
of their marriages. This is strong evidence of a law having the purpose and effect of
disapproval of a class recognized and protected by state law. DOMA’s avowed purpose
and practical effect are to impose a disadvantage, a separate status, and so a stigma
upon all who enter into same-sex marriages made lawful by the unquestioned authority
of the States.
 DOMA’s history of enactment and its own text demonstrate that interference with the
equal dignity of same-sex marriages, conferred by the States in the exercise of their
sovereign power, was more than an incidental effect of the federal statute. It was its
essence. BLAG’s arguments are just as candid about the congressional purpose.
DOMA’s operation in practice confirms this purpose. It frustrates New York’s objective
of eliminating inequality by writing inequality into the entire United States Code.

DOMA’s principal effect is to identify and make unequal a subset of state-sanctioned

marriages. It contrives to deprive some couples married under the laws of their State,
but not others, of both rights and responsibilities, creating two contradictory marriage
regimes within the same State. It also forces same-sex couples to live as married for the
purpose of state law but unmarried for the purpose of federal law, thus diminishing the
stability and predictability of basic personal relations the State has found it proper to
acknowledge and protect. Pp. 20–26.

OBERGEFELL et al. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH,

et al.

certiorari to the united states court of appeals for the sixth circuit

No. 14–556. Argued April 28, 2015—Decided June 26, 2015[1]

Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one
man and one woman. The petitioners, 14 same-sex couples and two men whose same-
sex partners are deceased, filed suits in Federal District Courts in their home States,
claiming that respondent state officials violate the Fourteenth Amendment by denying
them the right to marry or to have marriages lawfully performed in another State given
full recognition. Each District Court ruled in petitioners’ favor, but the Sixth Circuit
consolidated the cases and reversed.

Held: The Fourteenth Amendment requires a State to license a marriage between two
people of the same sex and to recognize a marriage between two people of the same
sex when their marriage was lawfully licensed and performed out-of-State. Pp. 3–28.

(a) Before turning to the governing principles and precedents, it is appropriate to note
the history of the subject now before the Court. Pp. 3–10.

(1) The history of marriage as a union between two persons of the opposite sex marks
the beginning of these cases. To the respondents, it would demean a timeless
institution if marriage were extended to same-sex couples. But the petitioners, far from
seeking to devalue marriage, seek it for themselves because of their respect—and
need—for its privileges and responsibilities, as illustrated by the petitioners’ own
experiences. Pp. 3–6.

(2) The history of marriage is one of both continuity and change. Changes, such as the
decline of arranged marriages and the abandonment of the law of coverture, have
worked deep transformations in the structure of marriage, affecting aspects of marriage
once viewed as essential. These new insights have strengthened, not weakened, the
institution. Changed understandings of marriage are characteristic of a Nation where
new dimensions of freedom become apparent to new generations.

This dynamic can be seen in the Nation’s experience with gay and lesbian rights. Well
into the 20th century, many States condemned same-sex intimacy as immoral, and
homosexuality was treated as an illness. Later in the century, cultural and political
developments allowed same-sex couples to lead more open and public lives. Extensive
public and private dialogue followed, along with shifts in public attitudes. Questions
about the legal treatment of gays and lesbians soon reached the courts, where they
could be discussed in the formal discourse of the law. In 2003, this Court overruled its
1986 decision in Bowers v. Hardwick, 478 U. S. 186 , which upheld a Georgia law that
criminalized certain homosexual acts, concluding laws making same-sex intimacy a
crime “demea[n] the lives of homosexual persons.” Lawrence v. Texas, 539 U. S. 558 .
In 2012, the federal Defense of Marriage Act was also struck down. United
States v. Windsor, 570 U. S. ___. Numerous same-sex marriage cases reaching the
federal courts and state supreme courts have added to the dialogue. Pp. 6–10.

(b) The Fourteenth Amendment requires a State to license a marriage between two
people of the same sex. Pp. 10–27.

(1) The fundamental liberties protected by the Fourteenth Amendment’s Due Process
Clause extend to certain personal choices central to individual dignity and autonomy,
including intimate choices defining personal identity and beliefs.
See, e.g., Eisenstadt v. Baird, 405 U. S. 438 ; Griswold v. Connecticut, 381 U. S. 479 –
486. Courts must exercise reasoned judgment in identifying interests of the person so
fundamental that the State must accord them its respect. History and tradition guide and
discipline the inquiry but do not set its outer boundaries. When new insight reveals
discord between the Constitution’s central protections and a received legal stricture, a
claim to liberty must be addressed.

Applying these tenets, the Court has long held the right to marry is protected by the
Constitution. For example, Loving v. Virginia, 388 U. S. 1 , invalidated bans on
interracial unions, and Turner v. Safley, 482 U. S. 78 , held that prisoners could not be
denied the right to marry. To be sure, these cases presumed a relationship involving
opposite-sex partners, as did Baker v. Nelson, 409 U. S. 810 , a one-line summary
decision issued in 1972, holding that the exclusion of same-sex couples from marriage
did not present a substantial federal question. But other, more instructive precedents
have expressed broader principles. See, e.g., Lawrence, supra, at 574. In assessing
whether the force and rationale of its cases apply to same-sex couples, the Court must
respect the basic reasons why the right to marry has been long protected.
See, e.g.,Eisenstadt, supra, at 453–454. This analysis compels the conclusion that
same-sex couples may exercise the right to marry. Pp. 10–12.
(2) Four principles and traditions demonstrate that the reasons marriage is fundamental
under the Constitution apply with equal force to same-sex couples. The first premise of
this Court’s relevant precedents is that the right to personal choice regarding marriage
is inherent in the concept of individual autonomy. This abiding connection between
marriage and liberty is why Loving invalidated interracial marriage bans under the Due
Process Clause. See 388 U. S., at 12. Decisions about marriage are among the most
intimate that an individual can make. See Lawrence, supra, at 574. This is true for all
persons, whatever their sexual orientation.

A second principle in this Court’s jurisprudence is that the right to marry is fundamental
because it supports a two-person union unlike any other in its importance to the
committed individuals. The intimate association protected by this right was central
to Griswold v. Connecticut, which held the Constitution protects the right of married
couples to use contraception, 381 U. S., at 485, and was acknowledged
in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples
to enjoy intimate association, a right extending beyond mere freedom from laws making
same-sex intimacy a criminal offense. See Lawrence, supra, at 567.

A third basis for protecting the right to marry is that it safeguards children and families
and thus draws meaning from related rights of childrearing, procreation, and education.
See, e.g., Pierce v. Society of Sisters, 268 U. S. 510 . Without the recognition, stability,
and predictability marriage offers, children suffer the stigma of knowing their families are
somehow lesser. They also suffer the significant material costs of being raised by
unmarried parents, relegated to a more difficult and uncertain family life. The marriage
laws at issue thus harm and humiliate the children of same-sex couples.
See Windsor, supra, at ___. This does not mean that the right to marry is less
meaningful for those who do not or cannot have children. Precedent protects the right of
a married couple not to procreate, so the right to marry cannot be conditioned on the
capacity or commitment to procreate.

Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a
keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190 . States have
contributed to the fundamental character of marriage by placing it at the center of many
facets of the legal and social order. There is no difference between same- and opposite-
sex couples with respect to this principle, yet same-sex couples are denied the
constellation of benefits that the States have linked to marriage and are consigned to an
instability many opposite-sex couples would find intolerable. It is demeaning to lock
same-sex couples out of a central institution of the Nation’s society, for they too may
aspire to the transcendent purposes of marriage.

The limitation of marriage to opposite-sex couples may long have seemed natural and
just, but its inconsistency with the central meaning of the fundamental right to marry is
now manifest. Pp. 12–18.

(3) The right of same-sex couples to marry is also derived from the Fourteenth
Amendment’s guarantee of equal protection. The Due Process Clause and the Equal
Protection Clause are connected in a profound way. Rights implicit in liberty and rights
secured by equal protection may rest on different precepts and are not always co-
extensive, yet each may be instructive as to the meaning and reach of the other. This
dynamic is reflected in Loving, where the Court invoked both the Equal Protection
Clause and the Due Process Clause; and in Zablocki v. Redhail, 434 U. S. 374 , where
the Court invalidated a law barring fathers delinquent on child-support payments from
marrying. Indeed, recognizing that new insights and societal understandings can reveal
unjustified inequality within fundamental institutions that once passed unnoticed and
unchallenged, this Court has invoked equal protection principles to invalidate laws
imposing sex-based inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450 U. S.
455 –461, and confirmed the relation between liberty and equality, see, e.g.,
M. L. B. v. S. L. J., 519 U. S. 102 –121.

The Court has acknowledged the interlocking nature of these constitutional safeguards
in the context of the legal treatment of gays and lesbians. See Lawrence, 539 U. S., at
575. This dynamic also applies to same-sex marriage. The challenged laws burden the
liberty of same-sex couples, and they abridge central precepts of equality. The marriage
laws at issue are in essence unequal: Same-sex couples are denied benefits afforded
opposite-sex couples and are barred from exercising a fundamental right. Especially
against a long history of disapproval of their relationships, this denial works a grave and
continuing harm, serving to disrespect and subordinate gays and lesbians. Pp. 18–22.

(4) The right to marry is a fundamental right inherent in the liberty of the person, and
under the Due Process and Equal Protection Clauses of the Fourteenth Amendment
couples of the same-sex may not be deprived of that right and that liberty. Same-sex
couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The
State laws challenged by the petitioners in these cases are held invalid to the extent
they exclude same-sex couples from civil marriage on the same terms and conditions
as opposite-sex couples. Pp. 22–23.

(5) There may be an initial inclination to await further legislation, litigation, and debate,
but referenda, legislative debates, and grassroots campaigns; studies and other
writings; and extensive litigation in state and federal courts have led to an enhanced
understanding of the issue. While the Constitution contemplates that democracy is the
appropriate process for change, individuals who are harmed need not await legislative
action before asserting a fundamental right. Bowers, in effect, upheld state action that
denied gays and lesbians a fundamental right. Though it was eventually repudiated,
men and women suffered pain and humiliation in the interim, and the effects of these
injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex
couples would have the same effect and would be unjustified under the Fourteenth
Amendment. The petitioners’ stories show the urgency of the issue they present to the
Court, which has a duty to address these claims and answer these questions.
Respondents’ argument that allowing same-sex couples to wed will harm marriage as
an institution rests on a counterintuitive view of opposite-sex couples’ decisions about
marriage and parenthood. Finally, the First Amendment ensures that religions, those
who adhere to religious doctrines, and others have protection as they seek to teach the
principles that are so fulfilling and so central to their lives and faiths. Pp. 23–27.

(c) The Fourteenth Amendment requires States to recognize same-sex marriages

validly performed out of State. Since same-sex couples may now exercise the
fundamental right to marry in all States, there is no lawful basis for a State to refuse to
recognize a lawful same-sex marriage performed in another State on the ground of its
same-sex character. Pp. 27–28.

772 F. 3d 388, reversed.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 100127. April 23, 1993.

JOSE D. LINA, JR., petitioner,

vs.
ISIDRO D. CARINO, in his capacity as Secretary of Education, Culture and Sports, respondents.

Roberto N. Dio of Castillo, Laman, Tan and Pantaleon for petitioner.

The Solicitor General for public respondent.

Ulpiano P. Sarmiento III for intervenor Catholic Educational Association of Colleges and Universities
(CEAP).

Antonio Abad of Abad, Leano and Associates for intervenor Philippine Association of Colleges and
Universities (PACU).

SYLLABUS

1. ADMINISTRATIVE LAW; BRIEF HISTORICAL NOTE ON THE POWER OF THE DECS

SECRETARY TO REGULATE TUITION AND OTHER FEES CHARGED BY PRIVATE SCHOOLS.
— It may be instructive to recall the following brief historical note set out in the Court's Decision on
the Cebu Institute case: ". . . As early as March 10, 1917, the power to inspect private schools, to
regulate their activities, to give them official permits to operate under certain conditions and to
revoke such permits for cause was granted to the then Secretary of Public Instruction by Act No.
2706 as amended by Act No. 3075 and Commonwealth Act No. 180. Republic Act No. 6139,
enacted on August 31, 1970, provided for the regulation of tuition and other fees charged by private
schools in order to discourage the collection of exorbitant and unreasonable fees. In an effort to
simplify the 'cumbersome and time consuming' procedure prescribed under Rep. Act No. 6139 and
`to alleviate the sad plight of private schools,' Pres. Dec. No. 451 was enacted on May 11, 1974.
While this later statute was being implemented, the legislative body envisioned a comprehensive
legislation which would introduce changes and chart directions in the educational system, hence, the
enactment of B.P. Blg. 232 . . ."

2. ID.; THE DECS SECRETARY HAS THE LEGAL AUTHORITY TO SET MAXIMUM PERMISSIBLE
RATES OR LEVELS OF TUITION AND OTHER SCHOOL FEES, AND TO ISSUE GUIDELINES
FOR THE IMPOSITION AND COLLECTION THEREOF, LIKE DECS ORDER NO. 30; REASONS.

a. THE COURT DID NOT RULE IN THE CEBU INSTITUTE CASE THAT THE POWER GRANTED
TO THE DECS SECRETARY TO FIX MAXIMUM PERMISSIBLE TUITION AND OTHER SCHOOL
FEES BY SECTION 1 OF P.D. NO. 451 HAD BEEN ELIMINATED BY SECTION 42 OF B.P. BLG.
232. — We are unable to agree with intervenor CEAP that Cebu Institute had the effect of
withdrawing from respondent DECS Secretary the power to regulate, and to promulgate rules and
regulations relating to, the imposition and collection of tuition and other school fees. A close reading
of the opinion of this Court in the Cebu Institute case shows that the Court did not rule that the power
granted to the DECS Secretary to fix maximum permissible tuition and other school fees by Section
1 of P.D. No. 451 had been eliminated by Section 42 of B.P. Blg. 232. What the Court dealt with in
the Cebu Institute case was the matter of the detailed allocation of the proceeds of increases in
tuition and other school fees. In respect of this specific question, there is no dispute that Section 42
of B.P. Blg. 232 did modify P.D. No. 451 by authorizing the DECS Secretary to issue rules and
regulations relating to the detailed allocation of funds raised by tuition and other fee increases to
various categories of uses and expenditures.

b. THERE IS NOTHING IN SECTION 42 OF B.P. BLG. 232 WHICH ELIMINATES THE POWER OF
THE DECS SECRETARY IN RESPECT OF THE FIXING OF MAXIMUM TUITION AND OTHER
SCHOOL FEES VESTED IN HIM BY P.D. NO. 451; UNDER SAID SECTION 42, THE RATE OF
TUITION AND OTHER SCHOOL FEES OR CHARGES DETERMINED BY THE PRIVATE SCHOOL
ITSELF IS SUBJECT TO RULES AND REGULATIONS PROMULGATED BY THE DECS. — An
examination of the precise language of Section 42 of B.P. Blg. 232 shows that there is really nothing
in Section 42 which must be read as eliminating the power of the DECS Secretary in respect of the
fixing of maximum tuition and other school fees vested in him by P.D. No. 451. Under Section 42, a
private school may determine for itself in the first instance the rate of tuition and other school fees or
charges that it deems appropriate. Such determination by the private school is not, however, binding
and conclusive as against the Secretary of Education, Culture and Sports. The rates and charges
adopted by such private school "shall be collectible, and their application or use authorized" provided
that such rates and charges are in accord with rules and regulations promulgated by the DECS . . .
We do not read the first sentence of Section 42 as granting an unlimited power to private schools to
establish any rate of tuition and other school fees and charges that it may desire and to enforce
collection of such fees or charges from students. We think it entirely clear that the second sentence
of Section 42 is a limiting provision, that is, a provision which, far from authorizing a private school to
adopt any level of tuition and other school fees or charges no matter how exorbitant, subjects the
schedule of rates and charges adopted by a particular school to the rules and regulations
promulgated by the DECS. Thus, the rates and charges adopted by any given private school shall
be "collectible," i.e., enforceable against the students and their parents, to the extent that they are
consistent with DECS rules and regulations. Put a little differently, the second sentence of Section
42 deals with two (2) distinguishable subjects: (a) the enforceability of rates of fees and charges
adopted by private schools; and (b) the enforceability of proposed applications or uses of the
proceeds of such school fees or charges — and both are declared subject to rules and regulations
promulgated by the DECS.

c. R.A NO. 6728 DEALS WITH GOVERNMENT ASSISTANCE TO STUDENTS AND TEACHERS IN
PRIVATE SCHOOLS; IT DOES NOT DEAL WITH THE QUESTION OF, NEITHER DOES IT VEST
UPON THE SAC, AUTHORITY TO FIX MAXIMUM COLLECTIBLE TUITION AND OTHER SCHOOL
FEES. — We turn to the argument of petitioner Lina that the DECS Secretary was divested of his
authority to promulgate rules and regulations relating to the fixing of tuition and other school fees, by
R.A. No., 6728, and that such authority has been transferred instead to the SAC. The Court is
unable to agree with this contention. We do not see how R.A. No. 6728 could be regarded as vesting
upon the SAC the legal authority to establish maximum permissible tuition and other school fees for
private schools. As earlier noted, R.A. No. 6728 deals with government assistance to students and
teachers in private schools; it does not, in other words, purport to deal at all with the question of
authority to fix maximum collectible tuition and other school fees. R.A. No. 6728 did authorize the
SAC to issue rules and regulations; but the rules and regulations which may be promulgated by the
SAC must relate to the authority granted by R.A. No. 6728 to the SAC. It is axiomatic that a rule or
regulation must bear upon, and be consistent with, the provisions of the enabling statute if such rule
or regulation is to be valid. The SAC was authorized to define the classes of students who may be
entitled to claim government financial assistance. Under the statute, students of schools charging
tuition and other school fees in excess of certain identified rates or levels thereof shall not be entitled
to claim government assistance or subsidies. The specification of such levels of tuition and other
school fees for purposes of qualifying (or disqualifying) the students in such schools for government
financial assistance is one thing; this is the task SAC was authorized to carry out through the
promulgation of rules and regulations. The determination of the levels of tuition and other school
fees which may lawfully be charged by any private school, is clearly another matter; this task is
vested in respondent Secretary.

3. ID.; THE CONSULTATION REQUIREMENT IN R.A. NO. 6728 APPLIES ONLY TO INCREASES
IN TUITION FEES, NOT TO INCREASES IN OTHER SCHOOL FEES. — In respect of the second
principal issue, petitioner Lina contends that Section 1(d) of DECS Order No. 30 is inconsistent with
Section 10 of R.A. No. 6728. We have earlier pointed out that petitioner's stand is inconsistent with
the very language used in Section 10 of R.A. No. 6728 which states in relevant part that: "in any
proposed increase in the rate of tuition fees, there shall be appropriate consultations — " Petitioner
Lina's argument here is, however, essentially an invocation of "justice and equity." . . . The Court
believes that petitioner's argument — cogent though it may be as a social and economic comment --
is most appropriately addressed, not to a court which must take the law as it is actually written, but
rather to the legislative authority which can, if it wishes, change the language and content of the law.
As Section 10 of R.A. No. 6728 now stands, we have no authority to strike down paragraph 1 (d) of
DECS Order No. 30 as inconsistent with the requirements of Section 10.

DECISION

FELICIANO, J p:

This is a Petition for Prohibition and Mandamus filed by petitioner Senator Jose D. Lina, Jr.,
principally as taxpayer, against respondent Isidro D. Cariño, in the latter's capacity as the then
Secretary of the Department of Education, Culture & Sports ("DECS"). Petitioner disputes the legal
authority of respondent Cariño to issue DECS Order No. 30, series of 1991, dated 11 March 1991,
entitled "Guidelines on Tuition and/or other School Fees in Private Schools, Colleges and
Universities for School Year 1991-1992." DECS Order No. 30 allows private schools to increase
tuition and other school fees, subject to the guidelines there set out. The complete text of DECS
Order No. 30 is reproduced here for ready reference.

"1. In response to the clamor from the regions for guidelines responsive to the needs and conditions
peculiar to these areas, and in consideration of the regional wage orders, schools may increase their
tuition fees as approved by the State Assistance Council (SAC) in accordance with the following
guidelines:
a. Entering Freshmen. — The tuition fee rates for entering freshmen in all levels may be determined
by the school itself, subject to consultation. However, no consultation is required when the amount of
increase will raise the tuition fee level to not more than P80.00 per unit for the tertiary schools and to
not more than P1,500 per year for the elementary and secondary schools.

b. Upper Year Students. — Schools may increase their tuition fees for the upper year students in
accordance with the following prescribed rates:

Religion Prescribed Tuition Fee Increase:

Per Unit Per Year

(Tertiary) (Elem. & Sec.)

I 6.50 158.00

II 5.50 135.00

III 7.50 180.00

IV 7.00 160.00

V 7.50 181.00

VI 7.00 175.00

VII 5.00 121.00

VIII 4.00 101.00

IX 5.50 132.00

X 6.00 141.00

XI 7.00 162.00

XII 6.50 157.00

NCR 9.50 226.50

CAR 5.50 133.00

Tuition fee increases within the prescribed rates above shall not require consultation and DECS
approval provided that a notice of increase is submitted to the DECS regional office not later than
April 30, 1991. Schools may increase up to a maximum rate of 25% for programs below Level II
accreditation and up to a maximum of 30% for programs with Level II and Level III accreditation
based on approved tuition fee rates in school year 1990-1991, subject to consultation.

c. Emergency Tuition Fee Assessment. — To comply with the provisional emergency cost of living
allowances mandated by the Regional Tripartite Wages and Productivity Boards of Regions VI, VII,
VIII, IX, X, XI, XII and the NCR, schools in these regions may collect an emergency tuition fee
assessment from both the entering freshmen and the upper year students in all levels in accordance
with the following schedule:

[Schedule of Fees follows]

The above Prescribed emergency tuition fee assessments shall be collected only in school year
1991-1992 and shall not form part of the approved tuition fee rates. Consultation and DECS
approval shall not be required. However, a notice of collection shall be submitted to the DECS
regional office not later than April 30, 1991.

(Note 1: The prescribed emergency tuition fee assessment for NCR will take effect only upon final
resolution of a pending petition for exemption.)

d. Other Fees. — Schools in all levels may increase the rates of other fees by not more than 10%.
Consultation and DECS approval shall not be required provided that a notice of increase is
submitted to the DECS regional office not later than April 30, 1991.

e. For schools desiring to increase their tuition and/or other fees beyond what are prescribed in
sections a, b, and d but whose programs are below Level II accreditation, the following must be
submitted to DECS regional offices for evaluation and approval/disapproval:

(1) A certification by the school head, properly notarized, stating (a) that the 70% share of tuition fee
increases collected in June 1990 was distributed to the teaching and non-teaching personnel in the
form of salaries, wages, allowances, and other benefits in compliance with Section 5.2.c of R.A.
6728, and (b) that the P25.00 mandated wage order in 1989 and the applicable regional wage
orders in November 1990 were implemented.

(2) Schedule of tuition and other fees of the previous year.

(3) Schedule of proposed increase of tuition and fees for the current school year.

(4) Audited financial statements for two (2) years immediately preceding the current year.

No school may collect any increase in tuition and other fees prior to DECS approval. Deadline for
filing of application is May 30, 1991.

(f) Consultation. — As defined in this Order, consultation shall mean a conference conducted by the
school administration with duly organized parents-teachers associations and faculty associations
with respect to elementary and secondary and with student governments or councils, alumni and
faculty associations with respect to tertiary schools as provided for in Section 10 of R.A. 6728.

(1) The consultation process involves at least two weeks' notice to all the parties above-mentioned.
A meeting of all sectors is held during which views and positions on or reactions to the proposed
increase in tuition and other fees shall be discussed. Every sincere effort shall be exerted to allow all
sectors concerned to express themselves freely in order to arrive at an acceptable compromise.
However, consultation does not necessarily mean agreement.

(2) In case of disagreement, parties involved may choose the alumni association of the school or any
other impartial body of their choice as arbiter.
(3) Any of the parties in disagreement with the decision of the arbiter may elevate the decision to
DECS Central Office which shall make the final decision.

g. Sanctions. — Sanctions as stipulated under DECS Order No. 50, s. 1990 still apply.

h. Government Tuition Fee Supplement. — Financial assistance for tuition of students in private
schools, colleges and universities shall be provided by the government as follows:

(1) For students enrolled in high schools which charge less than one thousand five hundred Pesos
(P1,500.00) per year in tuition and other fees during school year 1990-91, the government shall
provide them with a voucher equal to two hundred ninety pesos (P290.00) provided that the student
pays in school year 1991-1992 tuition and other fees equal to the tuition and other fees paid during
the preceding academic year.

(2) For fourth and fifth year students enrolled in priority courses, as determined by DECS, in private
schools, colleges and universities that charge an effective per unit tuition rate of eighty pesos
(P80.00) or less in SY 1990-91, the government shall provide each student with a voucher to cover
the tuition increase, up to twelve pesos (P12.00) per unit.

2. Guidelines on tuition and/or other school fees for the pre-elementary program will be covered by a
separate DECS Order.

3. This Order takes effect immediately and supersedes all other DECS issuances inconsistent
herewith."

It is useful to summarize the positions taken respectively by the parties and the intervenors.

1. Petitioner

Petitioner basically denies the legal authority of respondent Secretary to issue DECS Order No. 30.
It is the contention of petitioner that respondent Secretary at the time of issuing DECS Order No. 30,
no longer possessed legal authority to do so, considering that authority to promulgate rules and
regulations relating to the imposition of school fees had been transferred to the State Assistance
Council ("SAC") by Republic Act No. 67Z8. 1

Earlier, i.e. in 1987, the DECS Secretary issued an Order authorizing private schools to increase
their school fees by as much as 10% to 15% of the preceding year's rates. The Philippine
Consumers Foundation, Inc. initiated an action questioning the legal authority of the DECS
Secretary to issue such Order on the ground that the power of the DECS Secretary to regulate
school fees did not include the power to authorize an increase in school fees. In Philippine
Consumers Foundation, Inc. v. Secretary of Education, Culture & Sports, 2 the Court rejected the
argument of Philippine Consumers Foundation, Inc. ("Phil. Consumers") and held that since no other
government agency was vested with the authority to fix maximum school fees, that power should be
considered lodged with the DECS Secretary.

It is claimed by petitioner, however, that the ruling in Phil. Consumers was superseded by R.A. No.
6728 which expressly conferred authority to promulgate rules and regulations upon the SAC.
Petitioner here relies on Section 14 of R.A. No. 6728 to sustain his position —
"Sec. 14. Program Administration-Rules and Regulations. — The State Assistance Council shall be
responsible for policy guidance and direction, monitoring and evaluation of new and existing
programs, and the promulgation of rules and regulations, while the Department of Education, Culture
& Sports shall be responsible for the day to day administration and program implementation.
Likewise, it may engage the services and support of any qualified government or private entity for its
implementation.

xxx xxx xxx"

(Emphasis supplied).

Petitioner also contends that DECS Order No. 30 is inconsistent with Section 10 of R.A. No. 67Z8. In
DECS Order No. 30 (Section 1 [d], supra), respondent Secretary exempted increases in school fees
other than tuition fee (or "other school fees" as distinguished from "tuition fee") from application of
the consultation requirement. Upon the other hand, Section 10 of R.A. No. 6728 provides:

"Sec. 10. Consultation. — In any proposed increase in the rate of tuition fee, there shall be
appropriate consultations conducted by the school administration with the duly organized parents
and teachers associations and faculty associations with respect to secondary schools, and with
student governments or councils, alumni and faculty associations with respect to colleges. For this
purpose, audited financial statements shall be made available to authorized representatives of these
sectors. Every effort shall be exerted to reconcile possible differences. In case of disagreement, the
alumni association of the school or any other impartial body of their choosing shall act as arbitrator."
(Emphasis supplied).

According to petitioner, Section 10 above notwithstanding its wording, covers increases in all types
of school fees, which increases must first comply with the requirement of consultation before
promulgation in order that prohibitive and burdensome fees (of any type) may be avoided. 3

In fine, petitioner asks us to declare DECS Order No. 30 null and void on two (2) grounds: (1) that
respondent Secretary does not have the legal authority to issue that Order, and (2) that DECS Order
No. 30 violates Section 10 of R.A. No. 6728 which established a comprehensive requirement of
consultation.

2. Respondent Secretary

The Solicitor General, representing respondent Secretary, maintains that the power to prescribe
maximum tuition and other school fees granted under B.P. Blg: 232 was not withdrawn by R.A. No.
6728 and remains vested in the DECS Secretary. The Solicitor General rests his position here on
the decision of this Court in the Phil. Consumers case. The Solicitor General concedes that R.A. No.
6728 granted unto the SAC the power to promulgate rules and regulations, but argues that only rules
and regulations relevant to the purpose of that law, i.e. government assistance and subsidy to
students and teachers in private schools, may be promulgated by the SAC. In essence, the rules
which may be promulgated by the SAC are those involving a determination of the maximum rates of
tuition fee in private schools payment of which would not disqualify students thereof from availing
themselves of government assistance in the form of tuition fee supplements, and from access to the
high school textbook assistance fund and to tuition fee waiver programs.

The Solicitor General further contends that DECS Order No. 30 conforms substantially with the
consultation requirement of R.A. No. 672B, except item 1 (a) of DECS Order No. 30 which
unqualifiedly allows private colleges and universities to raise the tuition fee in the tertiary level to not
more than P80.00 per unit without prior consultation. He therefore urges that DECS Order No. 30 be
upheld, save only paragraph 1(a) thereof which he considers to be inconsistent with the consultation
requirement. 4

3. Intervenor PACU

Intervenor Philippine Association of Colleges and Universities (PACU) is an association of one

hundred eleven (111) privately-owned educational institutions, both proprietary and non-proprietary
in character. PACU filed, with leave granted by this Court on 13 August 1991, a Motion for
Intervention and an accompanying Comment in Intervention, claiming that it would be affected by the
outcome of the petition at bar.

Intervenor PACU does not deny the authority of the DECS Secretary to promulgate rules and
regulations with respect to the collection, application and use of tuition fee increases as provided in
B.P. Blg. 232. Like respondent Secretary, intervenor PACU asks us to affirm the ruling of the Court
in Phil. Consumers (supra). Intervenor PACU does not believe that R.A. No. 6728 could have
repealed B.P. Blg. 232 because these two (2) statutes deal with separate and independent subjects
and were enacted for different purposes.

Intervenor PACU questions DECS Order No. 30 only with respect to Paragraph 1 (a) which it
perceives does not conform with the consultation requirement. Upon the other hand, intervenor
PACU, traversing the position of petitioner, asserts that Section 10 of R.A. No. 6728 refers only to
increases in tuition fees, and that accordingly, consultation does not apply to increases in other
school fees, the latter kind of fees not being mentioned in Section 10.

4. Intervenor CEAP

Intervenor Catholic Educational Association of the Philippines ("CEAP") is an organization of

Catholic schools and universities with a total membership of 1,191 institutions. With leave granted by
this Court also on 13 August 1991, the CEAP filed a Comment in Intervention.

Unlike intervenor PACU, intervenor CEAP relies on the ruling of the Court in Cebu Institute of
Technology v. Ople. 5 Relying principally on the following portion of the decision in the Cebu Institute
case —

"The Court after comparing section 42 of B.P. Blg. 232 and Pres. Dec. No. 451, particularly section
3(a) thereof, finds evident irreconcilable differences.

Under Pres. Dec. No. 451, the authority to regulate the imposition of tuition and other school fees or
charges by private schools is lodged with the Secretary of Education and Culture (Sec. 1), whereas
section 42 of B.P. Blg. 232 liberalized the procedure by empowering each private school to
determine its rate of tuition and other school fees or charges." 6

intervenor CEAP maintains that neither the DECS Secretary nor the SAC may fix maximum tuition
and other school fees which private schools may lawfully charge. In the view of intervenor CEAP, the
fixing of such fees is the exclusive prerogative of the private schools themselves. It therefore urges
the Court to strike down DECS Order No. 30 as null and void in its entirety.

Intervenor CEAP, however, adheres to the view of intervenor PACU on consultation, that is, that the
imposition of other school fees (non-tuition fees) is not subject to a consultation requirement.

II
The principal issues raised by the parties may be restated in the following manner:

(1) Whether DECS Order No. 30 is valid, that is, whether respondent DECS Secretary has the legal
authority to issue DECS Order No. 30 prescribing guidelines concerning increases in tuition and
other school fees: and

(2) Whether the consultation requirement in R.A. No 6723 applies not only to increases in tuition
fees but also to increases in other school fees.

In respect of the first issue, it may be instructive to recall the following brief historical note set out in
the Court's Decision on the Cebu Institute case:

". . . As early as March 10, 1917, the power to inspect private schools, to regulate their activities, to
give them official permits to operate under certain conditions and to revoke such permits for cause
was granted to the then Secretary of Public Instruction by Act No. 2706 as amended by Act No.
3075 and Commonwealth Act No. 180. Republic Act No. 6139, enacted on August 31, 1970,
provided for the regulation of tuition and other fees charged by private schools in order to discourage
the collection of exorbitant and unreasonable fees. In an effort to simplify the 'cumbersome and time
consuming' procedure prescribed under Rep. Act No. 6139 and 'to alleviate the sad plight of private
schools,' Pres. Dec. No. 451 was enacted on May 11, 1974. While this later statute was being
implemented, the legislative body envisioned a comprehensive legislation which would introduce
changes and chart directions in the educational system, hence, the enactment of B.P. Blg. 232 . . ."
7

Petitioner Lina and intervenor CEAP contend that DECS Order No. 30 is null and void, upon the
other hand, respondent Secretary and intervenor PACU insist that DECS Order No. 30 is valid.

P.D. No. 451, entitled "Authorizing the Secretary of Education and Culture to Regulate the Imposition
of Tuition and Other School Fees, Repealing R.A. No. 6139, and For Other Purposes" and
promulgated on 11 May 1974, explicitly authorized the DECS Secretary not only "to regulate" but
also to fix the very tuition and other school fees to be charged by any particular private school.
Section 1 of this statute provides as follows:

"Sec. 1. Authority of Secretary of Education and Culture. — Within the limits and under the
circumstances set forth in this Decree, the Secretary of Education and Culture shall have the
authority to regulate the imposition of tuition and other school fees or charges by any and all private
schools as defined under Act Numbered Two thousand seven hundred and six, as amended. No
changes in the rates of tuition or other school fees or charges shall be effective without the prior
approval of the Secretary of Education and Culture. New school fees or charges to be imposed by
new or existing schools, whether for new courses or other matters, shall be at such reasonable rates
as may be determined by the Secretary of Education and Culture based on the standard of such
school." (Emphasis supplied).

B.P. Blg. 232, known as the "Education Act of 1982," was passed by the Batasan on 11 September
1982. The Provisions of B.P. Blg. 232 pertinent for present purposes are the following:

"Sec. 42. Tuition and Other School Fees. — Each private school shall determine its rate of tuition
and other school fees or charges. The rates and charges adopted by schools pursuant to this
provision shall be collectible, and their application or use authorized, subject to rules and regulations
promulgated by the Ministry of Education, Culture and Sports.

xxx xxx xxx

Sec. 57. Functions and Powers of the Ministry. — The Ministry shall:

1. Formulate general education objectives and policies, and adopt long-range educational plans:

2. Plan, develop and implement programs and projects in education and culture;

3. Promulgate rules and regulations necessary for the administration, supervision and regulation of
the educational system in accordance with declared policy;

4. Set up general objectives for the school system;

5. Coordinate the activities and functions of the school system and various cultural agencies under it;

6. Coordinate and work with agencies concerned with the educational and cultural development of
the national cultural communities; and

7. Recommend and study legislation proposed for adoption."

xxx xxx xxx

Sec. 70. Rule-Making Authority. — The Minister of Education, Culture and Sports charged with the
administration and enforcement of this Act, shall promulgate the necessary implementing rules and
regulations." (Emphasis supplied).

In the Phil. Consumers case, 8 as earlier noted, in sustaining Department Order No. 37, the Court.
citing certain sections of B.P. Blg. 232 concluded that legal authority to issue that Department Order
was vested in the DECS Secretary:

"We are not convinced by the argument that the power to regulate school fees 'does not always
include the power to increase' such fees. Such 57 (3) of Batas Pambansa Blg. 232, otherwise known
as the Education Act of 1982. vests the DECS with the power to regulate the educational system in
the country, to wit:

'Sec. 57. Educations and Powers of the Ministry. — The Ministry shall:

xxx xxx xxx

(3) Promulgate rules and regulations necessary for the administration supervision and regulation of
the educational system in accordance with declared policy.

xxx xxx xxx'

Section 70 of the same Act grants the DECS the power to issue rules which are likewise necessary
to discharge its functions and duties under the law, to wit:

'Sec. 70. Rule-making Authority. — The Minister of Education and Culture, charged with the
administration and enforcement of this Act, shall promulgate the necessary implementing rules and
regulations.'
In the absence of a statute stating otherwise, this power includes the power to prescribe school fees.
No other government agency has been vested with the authority to fix school fees and as such, the
power should be considered lodged with the DECS if it is to properly and effectively discharge its
functions and duties under the law." 9 (Emphasis supplied).

In the Cebu Institute case, 10 the Court said that Section 42 of B.P. Blg. 232 had amended P.D. No.
451. As already noted, this ruling in Cebu Institute had led intervenor CEAP to adopt the position —
and to urge the same upon us — that under Section 42 of B.P. Blg. 232, private schools are
authorized to fix and collect tuition and other school fees free from intervention by the DECS
Secretary.

After careful examination of the provisions of both P.D. No. 451 and BP. Blg. 232, and the opinions
of the Court in the Phil. Consumer case and the Cebu Institute case, as well the lengthy pleadings
filed by the parties and the intervenors, the Court considers that the legal authority of respondent
DECS Secretary to set maximum permissible rates or levels of tuition and other school fees, and to
issue guidelines for the imposition and collection thereof, like DECS Order No. 30, must be
sustained.

Firstly, we are unable to agree with intervenor CEAP that Cebu Institute had the effect of
withdrawing from respondent DECS Secretary the power to regulate, and to promulgate rules and
regulations relating to, the imposition and collection of tuition and other school fees.

A close reading of the opinion of this Court in the Cebu Institute case shows that the Court did not
rule that the power granted to the DECS Secretary to fix maximum permissible tuition and other
school fees by Section 1 of P.D. No. 451 had been eliminated by Section 42 of B.P. Blg. 232. What
the Court dealt with in the Cebu Institute case was the matter of the detailed allocation of the
proceeds of increases in tuition and other school fees. In respect of this specific question, there is no
dispute that Section 42 of B.P. Blg. 232 did modify P.D. No. 451 by authorizing the DECS Secretary
to issue rules and regulations relating to the detailed allocation of funds raised by tuition and other
fee increases to various categories of uses and expenditures. What the Court, through Cortes, J.,
did say in the Cebu Institute case was the following:

". . . What then was the effect of B.P. Blg. 232 on Pres. Dec. No. 451?

The Court after comparing section 42 of B.P. Blg. 232 and Pres. Dec. No. 451, particularly section
3(a) thereof, finds evident irreconcilable differences.

Under Pres. Dec. No. 451, the authority to regulate the imposition of tuition and other school fees or
charges by private schools is lodged with the Secretary of Education and Culture (Sec. 1), where
section 42 of B.P. Blg. 232 liberalized the procedure by empowering each private school to
determine its rate of tuition and other school fees or charges.

Pres. Dec. No. 451 provides that 60% of the incremental proceeds of tuition fee increases shall be
applied or used to augment the salaries and wages of members of the faculty and other employees
of the school, while B.P. Blg. 232 provides that the increment shall be applied or used in accordance
with the regulations promulgated by the MECS.

A closer look at these differences leads the Court to resolve the question in favor of repeal. As
Pointed out by the Solicitor General, three aspects of the disputes provisions of law support the
above conclusion. First, the legislative authority under Pres. Dec. No. 451 retained the power to
apportion the incremental proceeds of the tuition fee increases; such power is delegated to the
Ministry of Education and Culture under B.P Blg. 232. Second, Pres. Dec. No. 451 limits the
application or use of the increment to salary or wage increase, institutional development, student
assistance and extension services and return on investment, whereas B.P. Blg. 232 gives the MECS
discretion to determine the application or use of the increments. Third, the extent of the application
or use of the increment under Pres. Dec. 451 is fixed at the pre-determined percentage allocations:
60% for wage and salary increases, 12% for return in investment and the balance of 28% to
institutional development, student assistance and extension services, while under B.P. Blg. 232, the
extent of the allocation or use of increment is likewise left to the discretion of the MECS.

The legislative intent to depart from the statutory limitations under Pres. Dec. No. 451 is apparent in
the second sentence of section 42 of B.P. Blg. 232. Pres. Dec. No. 451 and section 42 of B.P. Blg.
232 which cover the same subject matter, are so clearly inconsistent and incompatible with each
other that there is no other conclusion but that the latter repeals the former in accordance with
section 72 of B.P. Blg. 232 to wit:

xxx xxx xxx

Having concluded that under B.P. Blg. 232 the collection and application or use of tuition and other
school fees are subject only to the limitations under the rules and regulations issued by the Ministry,
the crucial point now shifts to the said implementing rules." 11 (Emphasis supplied)

Secondly, an examination of the precise language of Section 42 of B.P. Blg. 232 shows that there is
really nothing in Section 42 which must be read as eliminating the power of the DECS Secretary in
respect of the fixing of maximum tuition and other school fees vested in him by P.D. No. 451. Under
Section 42, a private school may determine for itself in the first instance the rate of tuition and other
school fees or charges that it deems appropriate. Such determination by the private school is not,
however, binding and conclusive as against the secretary of Education, Culture and Sports. The
rates and charges adopted by such private school "shall be collectible, and their application or use
authorized" provided that such rates and charges are in accord with rules and regulations
promulgated by the DECS.

It is convenient to quote Section 42 again:

"Sec. 42. Tuition and Other School Fees. — Each Private school shall determine its rate of tuition
and other school fees or charges. The rates and charges adopted by schools pursuant to this
provision shall be collectible, and their application or use authorized, subject to rules and regulations
promulgated by the Ministry of Education, Culture and Sports." (Emphasis supplied).

We do not read the first sentence of Section 42 as granting an unlimited power to private schools to
establish any rate of tuition and other school fees and charges that it may desire and to enforce
collection of such fees or charges from students. We think it entirely clear that the second sentence
of Section 42 is a limiting provision, that is, a provision which, far from authorizing a private school to
adopt any level of tuition and other school fees or charges no matter how exorbitant, subjects the
schedule of rates and charges adopted by a particular school to the rules and regulations
promulgated by the DECS. Thus, the rates and charges adopted by any given private school shall
be "collectible". i.e., enforceable against the students and their parents, to the extent that they are
consistent with DECS rules and regulations. Put a little differently, the second sentence of Section
42 deals with two (2) distinguishable subjects: (a) the enforceability of rates of fees and charges
adopted by private schools: and (b) the enforceability of proposed applications or uses of tile
proceeds of such school fees or charges — and both are declared subject to rules and regulations
promulgated by the DECS.
We turn to the argument of petitioner Lina that the DECS Secretary was divested of his authority to
promulgate rules and regulations relating to the fixing of tuition and other school fees, by R.A. No.
6728, and that such authority has been transferred instead to the SAC. The Court is unable to agree
with this contention. We do not see how R.A. No. 6728 could be regarded as vesting upon the SAC
the legal authority to establish maximum permissible tuition and other school fees for private
schools. As earlier noted, R.A. No. 6728 deals with government assistance to students and teachers
in private schools; it does not, in other words, purport to deal at all with the question of authority to fix
maximum collectible tuition and other school fees. R.A. No, 6728 did authorize the SAC to issue
rules and regulations; but the rules and regulations which may be promulgated by the SAC must
relate to the authority granted by R.A. No. 6728 to the SAC. It is axiomatic that a rule or regulation
must bear upon, and be consistent with, the provisions of the enabling statute if such rule or
regulation is to be valid. 12 The SAC was authorized to define the classes of students who may be
entitled to claim government financial assistance. Under the statute, students of schools charging
tuition and other school fees in excess of certain identified rates or levels thereof shall not be entitled
to claim government assistance or subsidies. The specification of such levels of tuition and other
school fees for purposes of qualifying (or disqualifying) the students in such schools for government
financial assistance is one thing; this is the task SAC was authorized to carry out though the
promulgation of rules and regulations. The determination of the levels of tuition and other school
fees which may lawfully be charged by any private school, is clearly another matter; this task is
vested in respondent Secretary.

It is hardly necessary to add that the Court, in reaching the above conclusion, is not saying that
every paragraph and sub-paragraph of DECS Order No. 30 is necessarily valid and consistent with
the provisions of the enabling statute(s). We do not understand the parties to be asking us to
validate or strike down every such paragraph and sub-paragraph.

In respect of the second principal issue, petitioner Lina contends that Section 1(d) of DECS Order
No. 30 is inconsistent with Section 10 of R.A. No. 6728. We have earlier pointed out that petitioner's
stand is inconsistent with the very language used in Section 10 of R.A. No. 6728 which states in
relevant part that: "in any proposed increase in the rate of tuition fees, there shall be appropriate
consultations —." Petitioner Lina's argument here is, however, essentially an invocation of "justice
and equity." Petitioner argues that:

". . . [T]here is no basis, legal or otherwise, for the respondent Secretary to view 'other fees' as
separate and distinct from 'tuition fee rate' for purposes of the consultation requirement of the law.
To exclude the imposition of 'other fees' from the consultation process would result in an anomalous
situation whereby so-called 'other fees' may become so burdensome that the students and parents
concerned may be deprived of the right of being heard or consulted on matter directly affecting their
interest. Justice and equity demand that any increase in the tuition fee, tuition fee assessment or
'other fees' which in its totality increases the cost of education, should and must be subjected to
consultation, as required in Section 10, R.A. No. 6728." 13 (Emphasis supplied).

The Court believes that petitioner's argument — cogent though it may be as a social and economic
comment — is most appropriately addressed. not to a court which must take the law as it is actually
written, but rather to the legislative authority which can, if it wishes, change the language and
content of the law. As Section 10 of R.A. No. 6728 now stands, we have no authority to strike down
paragraph 1 (d) of DECS Order No. 30 as inconsistent with the requirements of Section 10.

Summarizing, the first issue we must answer in the affirmative. To the second issue, we must give a
negative answer.
WHEREFORE, for all the foregoing, the Petition for Prohibition and Mandamus is hereby
DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.

Hilao v. Estate of Marcos,103 F.3d 767, 776 to 778 (9th Cir. 1996)

The district court instructed the jury that it could find the Estate liable if it found
either that (1) Marcos directed, ordered, conspired with, or aided the military in
torture, summary execution, and "disappearance" or (2) if Marcos knew of such
conduct by the military and failed to use his power to prevent it. The Estate challenges
the latter basis for liability, arguing that liability is not imposed under such conditions
in analogous U.S. law claims, that "no international law decision ... has ever imposed
liability upon a foreign official" on those grounds, and that the district court
essentially made the Estate liable on a respondeat superior theory that is inapplicable
in intentional torts.

The principle of "command responsibility" that holds a superior responsible for the
actions of subordinates appears to be well accepted in U.S. and international law in
connection with acts committed in wartime, as the Supreme Court's opinion in In Re
Yamashita indicates:

[T]he gist of the charge is an unlawful breach of duty by petitioner as an army

commander to control the operations of the members of his command by 'permitting
them to commit' the extensive and widespread atrocities specified.... [T]he law of war
presupposes that its violation is to be avoided through the control of the operations of
war by commanders who are to some extent responsible for their subordinates....
[P]rovisions [of international law] plainly imposed on petitioner, who at the time
specified was military governor of the Philippines, as well as commander of the
Japanese forces, an affirmative duty to take such measures as were within his power
and appropriate in the circumstances to protect prisoners of war and the civilian
population. This duty of a commanding officer has heretofore been recognized, and its
breach penalized[,] by our own military tribunals.

In re Yamashita, 327 U.S. 1, 14-16, 66 S.Ct. 340, 347-48, 90 L.Ed. 499 (1946). See
also Art. 86(2), Protocol to the Geneva Conventions of August 12, 1949, opened for
signature December 12, 1977, reprinted in 16 I.L.M. 1391, 1429 (1977) ("The fact
that a breach of the Conventions or of this Protocol was committed by a subordinate
does not absolve his superiors from penal [or] disciplinary responsibility ... if they
knew, or had information which should have enabled them to conclude in the
circumstances at the time, that he was committing or was going to commit such a
breach and if they did not take all feasible measures within their power to prevent or
repress the breach."); Art. 7(3), Statute of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia, 32 I.L.M.
1159, 1192-94 (1993) ( "The fact that any [act of genocide, crime against humanity, or
violation of the Geneva Conventions or of the laws or customs of war] was committed
by a subordinate does not relieve his superior of criminal responsibility if he knew or
had reason to know that the subordinate was about to commit such acts or had done so
and the superior failed to take the necessary and reasonable measures to prevent such
acts or to punish the perpetrators thereof."); see generally Lt. Cmdr. Weston D.
Burnett, Command Responsibility and a Case Study of the Criminal Responsibility of
Israeli Military Commanders for the Pogrom at Shatila and Sabra, 107 Mil.L.J. 71
(1985).

The United States has moved toward recognizing similar "command responsibility"
for torture that occurs in peacetime, perhaps because the goal of international law
regarding the treatment of noncombatants in wartime--"to protect civilian populations
and prisoners ... from brutality", Yamashita, 327 U.S. at 15, 66 S.Ct. at 347-48--is
similar to the goal of international human-rights law. This move is evidenced in the
legislative history of the TVPA:

[A] higher official need not have personally performed or ordered the abuses in order
to be held liable. Under international law, responsibility for torture, summary
execution, or disappearances extends beyond the person or persons who actually
committed those acts--anyone with higher authority who authorized, tolerated or
knowingly ignored those acts is liable for them.

S.Rep. No. 249, 102d Cong., 1st Sess. at 9 (1991) (footnote omitted) (citing Forti and
In re Yamashita ). At least one district court has recognized such liability. Xuncax,
886 F.Supp. at 171-73, 174-75 ("Gramajo was aware of and supported widespread
acts of brutality committed by personnel under his command resulting in thousands of
civilian deaths.... Gramajo refused to act to prevent such atrocities." "... Gramajo may
be held liable for the acts of members of the military forces under his command.").
See also Paul v. Avril, 901 F.Supp. 330, 335 (S.D.Fla.1994) ("Defendant Avril
[former military ruler of Haiti] bears personal responsibility for a systematic pattern of
egregious human rights abuses in Haiti during his military rule ... He also bears
personal responsibility for the interrogation and torture of each of the plaintiffs ... All
of the soldiers and officers in the Haitian military responsible for the arbitrary
detention and torture of plaintiffs were employees, representatives, or agents of
defendant Avril, acting under his instructions, authority, and control and acting within
the scope of authority granted by him."). The conduct at issue in this case involved
violations by members of military or paramilitary forces of a jus cogens norm of
international law parallel to the types of war crimes for which international law
imposes command responsibility. Siderman de Blake v. Republic of Argentina, 965
F.2d 699, 714-717 (9th Cir.1992) (prohibition against torture has attained status of jus
cogens norm from which no derogation is permitted). In these circumstances, the
district court's instruction on the second category of liability was proper under
international law.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application for habeas corpus submits for decision. While hardly to be expected to be met with in this
modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there
is kept in the forefront of our minds the basic principles of popular government, and if we give
expression to the paramount purpose for which the courts, as an independent power of such a
government, were constituted. The primary question is — Shall the judiciary permit a government of
the men instead of a government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of the
city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated
district for women of ill repute, which had been permitted for a number of years in the city of Manila,
closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in
the district by the police. Presumably, during this period, the city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers;
with some government office for the use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting
pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila,
Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and
placed them aboard the steamers that awaited their arrival. The women were given no opportunity to
collect their belongings, and apparently were under the impression that they were being taken to a
police station for an investigation. They had no knowledge that they were destined for a life in
Mindanao. They had not been asked if they wished to depart from that region and had neither
directly nor indirectly given their consent to the deportation. The involuntary guests were received on
board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary
soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of
October 25.
The vessels reached their destination at Davao on October 29. The women were landed and
receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo
and Rafael Castillo. The governor and the hacendero Yñigo, who appear as parties in the case, had
no previous notification that the women were prostitutes who had been expelled from the city of
Manila. The further happenings to these women and the serious charges growing out of alleged ill-
treatment are of public interest, but are not essential to the disposition of this case. Suffice it to say,
generally, that some of the women married, others assumed more or less clandestine relations with
men, others went to work in different capacities, others assumed a life unknown and disappeared,
and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends of a considerable number of the deportees
presented an application for habeas corpus to a member of the Supreme Court. Subsequently, the
application, through stipulation of the parties, was made to include all of the women who were sent
away from Manila to Davao and, as the same questions concerned them all, the application will be
considered as including them. The application set forth the salient facts, which need not be
repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation,
and prayed that the writ should not be granted because the petitioners were not proper parties,
because the action should have been begun in the Court of First Instance for Davao, Department of
Mindanao and Sulu, because the respondents did not have any of the women under their custody or
control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be
laborers, at good salaries, on the haciendas of Yñigo and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of the court, that these women had been sent out of
Manila without their consent. The court awarded the writ, in an order of November 4, that directed
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Francisco Sales, governor of the province of Davao, and Feliciano Yñigo, an hacenderoof Davao, to
bring before the court the persons therein named, alleged to be deprived of their liberty, on
December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On
motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons
in whose behalf the writ was issued were produced in court by the respondents. It has been shown
that three of those who had been able to come back to Manila through their own efforts, were
notified by the police and the secret service to appear before the court. The fiscal appeared,
repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of
Davao and the answer thereto, and telegrams that had passed between the Director of Labor and
the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women
were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales
answered alleging that it was not possible to fulfill the order of the Supreme Court because the
women had never been under his control, because they were at liberty in the Province of Davao, and
because they had married or signed contracts as laborers. Respondent Yñigo answered alleging
that he did not have any of the women under his control and that therefore it was impossible for him
to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a
second order, which related that the respondents had not complied with the original order to the
satisfaction of the court nor explained their failure to do so, and therefore directed that those of the
women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and
Yñigo on January 13, 1919, unless the women should, in written statements voluntarily made before
the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the
respondents should demonstrate some other legal motives that made compliance impossible. It was
further stated that the question of whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain
detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting
in the same capacity. On January 13, 1919, the respondents technically presented before the Court
the women who had returned to the city through their own efforts and eight others who had been
brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again
recounted the facts and further endeavored to account for all of the persons involved in the habeas
corpus. In substance, it was stated that the respondents, through their representatives and agents,
had succeeded in bringing from Davao with their consent eight women; that eighty-one women were
found in Davao who, on notice that if they desired they could return to Manila, transportation fee,
renounced the right through sworn statements; that fifty-nine had already returned to Manila by other
means, and that despite all efforts to find them twenty-six could not be located. Both counsel for
petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court
to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of
Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila,
Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor,
and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that
the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January
25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in
the final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women were
isolated from society, and then at night, without their consent and without any opportunity to consult
with friends or to defend their rights, were forcibly hustled on board steamers for transportation to
regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that
such was not the case is shown by the mere fact that the presence of the police and the
constabulary was deemed necessary and that these officers of the law chose the shades of night to
cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted
by the respondents.

With this situation, a court would next expect to resolve the question — By authority of what law did
the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila
to another distant locality within the Philippine Islands? We turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress.
The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands.
Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of
Manila provide for the conviction and punishment by a court of justice of any person who is a
common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may
have been convicted of vagrancy, to the homeland. New York and other States have statutes
providing for the commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or
order. But one can search in vain for any law, order, or regulation, which even hints at the right of the
Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine
Islands — and these women despite their being in a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the same constitutional guaranties as are other
citizens — to change their domicile from Manila to another locality. On the contrary, Philippine penal
law specifically punishes any public officer who, not being expressly authorized by law or regulation,
compels any person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be
found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as
not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands,
even the President of the United States, who has often been said to exercise more power than any
king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore,
has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and
the chief of police could, at their mere behest or even for the most praiseworthy of motives, render
the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If these officials can take to themselves
such power, then any other official can do the same. And if any official can exercise the power, then
all persons would have just as much right to do so. And if a prostitute could be sent against her
wishes and under no law from one locality to another within the country, then officialdom can hold
the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or
any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his
peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either
justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no
matter how high, is above the law. The courts are the forum which functionate to safeguard
individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the
opinion of the Supreme Court of the United States, "is the only supreme power in our system of
government, and every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the
exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea,"
said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to
hold his life, or the means of living, or any material right essential to the enjoyment of life, at the
mere will of another, seems to be intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the
motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that
the primary question was whether the courts should permit a government of men or a government of
laws to be established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in
force in the Philippines who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be
 punished by a fine of not less than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not less than six hundred and
twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that
any public officer has violated this provision of law, these prosecutors will institute and press a
criminal prosecution just as vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded
against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which
will later be referred to — "It would be a monstrous anomaly in the law if to an application by one
unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement
was a crime, and therefore might be continued indefinitely until the guilty party was tried and
punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15
Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of
personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose
principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections
to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners,
(2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are
not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the
Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce
they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and
friends of the deportees. The way the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It was consequently proper for the
writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil
Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a
court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a
person is unjustly imprisoned or restrained of his liberty, though no application be made therefor.
(Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of
Davao or should have been made returnable before that court. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be
presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The
writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible
anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure,
sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the particular circumstances.
In this instance it was not shown that the Court of First Instance of Davao was in session, or that the
women had any means by which to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original respondents with their attorney,
were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it
was shown that the women might still be imprisoned or restrained of their liberty; and it was shown
that if the writ was to accomplish its purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior court to consider the application and
then to grant the writ would have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was
prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the
women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did
not extend beyond the city limits. At first blush, this is a tenable position. On closer examination,
acceptance of such dictum is found to be perversive of the first principles of the writ of habeas
corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint
as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. The forcible taking of these women from
Manila by officials of that city, who handed them over to other parties, who deposited them in a
distant region, deprived these women of freedom of locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either money or personal belongings, they were prevented from
exercising the liberty of going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely
and truly waived his right.

Consider for a moment what an agreement with such a defense would mean. The chief executive of
any municipality in the Philippines could forcibly and illegally take a private citizen and place him
beyond the boundaries of the municipality, and then, when called upon to defend his official action,
could calmly fold his hands and claim that the person was under no restraint and that he, the official,
had no jurisdiction over this other municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in his power to obey the order of the court
and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party
to whom the writ is addressed has illegally parted with the custody of a person before the application
for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting
under no authority of law, could deport these women from the city of Manila to Davao, the same
officials must necessarily have the same means to return them from Davao to Manila. The
respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while
the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty
may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any
analogous case. Certain decisions of respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether
or not a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction
of the State to bring into the State a minor child under guardianship in the State, who has been and
continues to be detained in another State. The membership of the Michigan Supreme Court at this
time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was equally divided. Campbell, J., with whom
concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the
writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his
conception of the English decisions, and since, as will hereafter appear, the English courts have
taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are
quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ
on the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half
have been expended upon the Magna Charta, and rivers of blood shed for its establishment;
after its many confirmations, until Coke could declare in his speech on the petition of right
that "Magna Charta was such a fellow that he will have no sovereign," and after the
extension of its benefits and securities by the petition of right, bill of rights and habeas
corpus acts, it should now be discovered that evasion of that great clause for the protection
of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed
here. If it is so, it is important that it be determined without delay, that the legislature may
apply the proper remedy, as I can not doubt they would, on the subject being brought to their
notice. . . .

The second proposition — that the statutory provisions are confined to the case of
imprisonment within the state — seems to me to be based upon a misconception as to the
source of our jurisdiction. It was never the case in England that the court of king's bench
derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not
passed to give the right, but to compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it
is directed to and served upon, not the person confined, but his jailor. It does not reach the
former except through the latter. The officer or person who serves it does not unbar the
prison doors, and set the prisoner free, but the court relieves him by compelling the
oppressor to release his constraint. The whole force of the writ is spent upon the respondent,
and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine
and imprisonment. This is the ordinary mode of affording relief, and if any other means are
resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by
the power of the court he can be compelled to release his grasp. The difficulty of affording
redress is not increased by the confinement being beyond the limits of the state, except as
greater distance may affect it. The important question is, where the power of control
exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out
of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division
upon the application of the mother and her husband directing the defendant to produce the child.
The judge at chambers gave defendant until a certain date to produce the child, but he did not do so.
His return stated that the child before the issuance of the writ had been handed over by him to
another; that it was no longer in his custody or control, and that it was impossible for him to obey the
writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at the
 Royal Courts of Justice immediately after the receipt of the writ, together with the cause of
her being taken and detained. That is a command to bring the child before the judge and
must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of
the child. If it could be shown that by reason of his having lawfully parted with the possession
of the child before the issuing of the writ, the defendant had no longer power to produce the
child, that might be an answer; but in the absence of any lawful reason he is bound to
produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ
without lawful excuse. Many efforts have been made in argument to shift the question of
contempt to some anterior period for the purpose of showing that what was done at some
time prior to the writ cannot be a contempt. But the question is not as to what was done
before the issue of the writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in obedience to its commands.
(The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case
of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's
Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the
defendant to have before the circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the
negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas corpus, and that they were then beyond
his control and out of his custody. The evidence tended to show that Davis had removed the
negroes because he suspected they would apply for a writ of habeas corpus. The court held the
return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis
being present in court, and refusing to produce them, ordered that he be committed to the custody of
the marshall until he should produce the negroes, or be otherwise discharged in due course of law.
The court afterwards ordered that Davis be released upon the production of two of the negroes, for
one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two
negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas.
No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the
respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the
Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the
contempt should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited
until the 21st of November before sending a telegram to the provincial governor of Davao. According
to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then
in Davao women who desired to return to Manila, but who should not be permitted to do so because
of having contracted debts. The half-hearted effort naturally resulted in none of the parties in
question being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open: (1) They
could have produced the bodies of the persons according to the command of the writ; or (2) they
could have shown by affidavit that on account of sickness or infirmity those persons could not safely
be brought before the court; or (3) they could have presented affidavits to show that the parties in
question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.)
They did not produce the bodies of the persons in whose behalf the writ was granted; they did not
show impossibility of performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a considerable number of the women,
at least sixty, could have been brought back to Manila is demonstrated to be found in the
municipality of Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in
finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far from sufficient. The, authorities
cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas
corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an
earlier decision of the Court, said: "We thought that, having brought about that state of things by his
own illegal act, he must take the consequences; and we said that he was bound to use every effort
to get the child back; that he must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and do everything that mortal
man could do in the matter; and that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not show that every possible effort to
produce the women was made by the respondents. That the court forebore at this time to take
drastic action was because it did not wish to see presented to the public gaze the spectacle of a
clash between executive officials and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous
and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of the record might reveal a failure of
literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with
it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy
incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an
executive investigation. If any particular individual is still restrained of her liberty, it can be made the
object of separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it, nothing
further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city
of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando
Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the
Bureau of Labor, Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of
Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain
that respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a
court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must
order him either imprisoned or fined. An officer's failure to produce the body of a person in
obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the
face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we
cannot say that any of the respondents, with the possible exception of the first named, has flatly
disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez,
Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public
officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance.
The hacendero Yñigo appears to have been drawn into the case through a misconstruction by
counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no
more than to fulfill his duty as the legal representative of the city government. Finding him innocent
of any disrespect to the court, his counter-motion to strike from the record the memorandum of
attorney for the petitioners, which brings him into this undesirable position, must be granted. When
all is said and done, as far as this record discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish the same, who made arrangements for
the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and
who later, as the head of the city government, had it within his power to facilitate the return of the
unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to
suppress the social evil was commendable. His methods were unlawful. His regard for the writ
of habeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which
relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban
to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to
this stern view. It would also be possible to find that since respondent Lukban did comply
substantially with the second order of the court, he has purged his contempt of the first order. Some
members of the court are inclined to this merciful view. Between the two extremes appears to lie the
correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to
belittle and embarrass the administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once command such respect
without being unduly oppressive — such an amount is P100.

In resume — as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt
of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of
the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal
of the city of Manila to strike from the record the Replica al Memorandum de los Recurridos of
January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that
this decision may serve to bulwark the fortifications of an orderly government of laws and to protect
individual liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.

Separate Opinions
TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpusproceeding against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great
number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.

We know no express law, regulation, or ordinance which clearly prohibits the opening of public
houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more
than one hundred and fifty women were assembled and placed aboard a steamer and transported to
Davao, considering that the existence of the said houses of prostitution has been tolerated for so
long a time, it is undeniable that the mayor of the city, in proceeding in the manner shown, acted
without authority of any legal provision which constitutes an exception to the laws guaranteeing the
liberty and the individual rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by the police in complying with
the order of the mayor of the city; neither do we believe in the necessity of taking them to the distant
district of Davao. The said governmental authority, in carrying out his intention to suppress the
segregated district or the community formed by those women in Gardenia Street, could have obliged
the said women to return to their former residences in this city or in the provinces, without the
necessity of transporting them to Mindanao; hence the said official is obliged to bring back the
women who are still in Davao so that they may return to the places in which they lived prior to their
becoming inmates of certain houses in Gardenia Street.

As regards the manner whereby the mayor complied with the orders of this court, we do not find any
apparent disobedience and marked absence of respect in the steps taken by the mayor of the city
and his subordinates, if we take into account the difficulties encountered in bringing the said women
who were free at Davao and presenting them before this court within the time fixed, inasmuch as it
does not appear that the said women were living together in a given place. It was not because they
were really detained, but because on the first days there were no houses in which they could live
with a relative independent from one another, and as a proof that they were free a number of them
returned to Manila and the others succeeded in living separate from their companions who continued
living together.

To determine whether or not the mayor acted with a good purpose and legal object and whether he
has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to
oblige them to change their domicile, it is necessary to consider not only the rights and interests of
the said women and especially of the patrons who have been directing and conducting such a
reproachable enterprise and shameful business in one of the suburbs of this city, but also the rights
and interests of the very numerous people of Manila where relatively a few transients accidentally
and for some days reside, the inhabitants thereof being more than three hundred thousand
(300,000) who can not, with indifference and without repugnance, live in the same place with so
many unfortunate women dedicated to prostitution.

If the material and moral interests of the community as well as the demands of social morality are to
be taken into account, it is not possible to sustain that it is legal and permissible to establish a house
of pandering or prostitution in the midst of an enlightened population, for, although there were no
positive laws prohibiting the existence of such houses within a district of Manila, the dictates of
common sense and dictates of conscience of its inhabitants are sufficient to warrant the public
administration, acting correctly, in exercising the inevitable duty of ordering the closing and
abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates
thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the
protection of the constitutional law guaranteeing his liberty, his individual rights, and his right to
property.

A cholera patient, a leper, or any other person affected by a known contagious disease cannot
invoke in his favor the constitutional law which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or concentration in a certain island or
distant point in order to free from contagious the great majority of the inhabitants of the country who
fortunately do not have such diseases. The same reasons exist or stand good with respect to the
unfortunate women dedicated to prostitution, and such reasons become stronger because the first
persons named have contracted their diseases without their knowledge and even against their will,
whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously
accepted all its consequences, knowing positively that their constant intercourse with men of all
classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to
the spread or multiplication of the disease known as syphilis, a venereal disease, which, although it
constitutes a secret disease among men and women, is still prejudicial to the human species in the
same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other
contagious diseases which produce great mortality and very serious prejudice to poor humanity.

If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give
her sufficient remuneration for her subsistence, prefers to put herself under the will of another
woman who is usually older than she is and who is the manager or owner of a house of prostitution,
or spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily
and with her own knowledge renounces her liberty and individual rights guaranteed by the
Constitution, because it is evident that she can not join the society of decent women nor can she
expect to get the same respect that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by every citizen. Considering her
dishonorable conduct and life, she should therefore be comprised within that class which is always
subject to the police and sanitary regulations conducive to the maintenance of public decency and
morality and to the conservation of public health, and for this reason it should not permitted that the
unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by the
administrative authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but those who
have been worrying so much about the prejudice resulting from a governmental measure, which
being a very drastic remedy may be considered arbitrary, have failed to consider with due reflection
the interests of the inhabitants of this city in general and particularly the duties and responsibilities
weighing upon the authorities which administer and govern it; they have forgotten that many of those
who criticize and censure the mayor are fathers of families and are in duty bound to take care of
their children.

For the foregoing reasons, we reach the conclusion that when the petitioners, because of the
abnormal life they assumed, were obliged to change their residence not by a private citizen but by
the mayor of the city who is directly responsible for the conservation of public health and social
morality, the latter could take the step he had taken, availing himself of the services of the police in
good faith and only with the purpose of protecting the immense majority of the population from the
social evils and diseases which the houses of prostitution situated in Gardenia Street have been
producing, which houses have been constituting for years a true center for the propagation of
general diseases and other evils derived therefrom. Hence, in ordering the dissolution and
abandonment of the said houses of prostitution and the change of the domicile of the inmates
thereof, the mayor did not in bad faith violate the constitutional laws which guarantees the liberty and
the individual rights of every Filipino, inasmuch as the women petitioners do not absolutely enjoy the
said liberty and rights, the exercise of which they have voluntarily renounced in exchange for the free
practice of their shameful profession.

In very highly advanced and civilized countries, there have been adopted by the administrative
authorities similar measures, more or less rigorous, respecting prostitutes, considering them
prejudicial to the people, although it is true that in the execution of such measures more humane and
less drastic procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures
have always had in view the ultimate object of the Government for the sake of the community, that
is, putting an end to the living together in a certain place of women dedicated to prostitution and
changing their domicile, with the problematical hope that they adopt another manner of living which
is better and more useful to themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is
obliged to take back and restore the said women who are at present found in Davao, and who desire
to return to their former respective residences, not in Gardenia Street, Sampaloc District, with the
exception of the prostitutes who should expressly make known to the clerk of court their preference
to reside in Davao, which manifestation must be made under oath. This resolution must be
transmitted to the mayor within the shortest time possible for its due compliance. The costs shall be
charged de officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed, according
to the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition
upon him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales,
and Feliciano Yñigo to present the persons named in the writ before the court on December
2, 1918. The order was dated November 4, 1918. The respondents were thus given ample
time, practically one month, to comply with the writ. As far as the record disclosed, the mayor
of the city of Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the Attorney for the Bureau of
Labor to the telegram of his chief, there were then in Davao women who desired to return to
Manila, but who should not be permitted to do so because of having contracted debts. The
half-hearted effort naturally resulted in none of the parties in question being brought before
the court on the day named.

In accordance with section 87 of General Orders No. 58, as said in the same decision, the
respondents, for the purpose of complying with the order of the court, could have, (1) produced the
bodies of the persons according to the command of the writ; (2) shown by affidavits that on account
of sickness or infirmity the said women could not safely be brought before this court; and (3)
presented affidavits to show that the parties in question or their lawyers waived their right to be
present. According to the same decision, the said respondents ". . . did not produce the bodies of the
persons in whose behalf the writ was granted; did not show impossibility of performance; and did not
present writings, that waived the right to be present by those interested. Instead, a few stereotyped
affidavits purporting to show that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That through ordinary
diligence a considerable number of the women, at least sixty, could have been brought back to
Manila is demonstrated by the fact that during this time they were easily to be found in the
municipality of Davao, and that about this number either returned at their own expense or were
produced at the second hearing by the respondents."

The majority opinion also recognized that, "That court, at the time the return to its first order was
made, would have been warranted summarily in finding the respondent guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the non production of the
persons were far from sufficient." To corroborate this, the majority decision cites the case of the
Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not
show that every possible effort to produce the women was made by the respondents."

When the said return by the respondents was made to this court in banc and the case discussed, my
opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless,
a second order referred to in the decision was issued on December 10, 1918, requiring the
respondents to produce before the court, on January 13, 1919, the women who were not in Manila,
unless they could show that it was impossible to comply with the said order on the two grounds
previously mentioned. With respect to this second order, the same decision has the following to say:

In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards
were posted, the constabulary and the municipal police joined in rounding up the women,
and a steamer with free transportation to Manila was provided. While charges and
countercharges in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the
issuance of the first order on November 4th till the 21st of the same month before taking the first
step for compliance with the mandate of the said order; he waited till the 21st of November, as the
decision says, before he sent a telegram to the provincial governor o f Davao and naturally this half-
hearted effort, as is so qualified in the decision, resulted in that none of the women appeared before
this court on December 2nd. Thus, the said order was not complied with, and in addition to this
noncompliance there was the circumstances that seven of the said women having returned to Manila
at their own expense before the said second day of December and being in the antechamber of the
court room, which fact was known to Chief of Police Hohmann, who was then present at the trial and
to the attorney for the respondents, were not produced before the court by the respondents nor did
the latter show any effort to present them, in spite of the fact that their attention was called to this
particular by the undersigned.

The result of the said second order was, as is said in the same decision, that the respondents, on
January 13th, the day fixed for the protection of the women before this court, presented technically
the seven (7) women above-mentioned who had returned to the city at their own expense and the
other eight (8) women whom the respondents themselves brought to Manila, alleging moreover that
their agents and subordinates succeeded in bringing them from Davao with their consent; that in
Davao they found eighty-one (81) women who, when asked if they desired to return to Manila with
free transportation, renounced such a right, as is shown in the affidavits presented by the
respondents to this effect; that, through other means, fifty-nine (59) women have already returned to
Manila, but notwithstanding the efforts made to find them it was not possible to locate the
whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one (181)
women who, as has been previously said, have been illegally detained by Mayor Lukban and Chief
of Police Hohmann and transported to Davao against their will, only eight (8) have been brought to
Manila and presented before this court by the respondents in compliance with the said two orders.
Fifty-nine (59) of them have returned to Manila through other means not furnished by the
respondents, twenty-six of whom were brought by the attorney for the petitioners, Mendoza, on his
return from Davao. The said attorney paid out of his own pocket the transportation of the said
twenty-six women. Adding to these numbers the other seven (7) women who returned to this city at
their own expense before January 13 we have a total of sixty-six (66), which evidently proves, on the
one hand, the falsity of the allegation by the respondents in their first answer at the trial of December
2, 1918, giving as one of the reasons for their inability to present any of the said women that the
latter were content with their life in Mindanao and did not desire to return to Manila; and, on the other
hand, that the respondents, especially the first named, that is Mayor Justo Lukban, who acted as
chief and principal in all that refers to the compliance with the orders issued by this court, could bring
before December 2nd, the date of the first hearing of the case, as well as before January 13th, the
date fixed for the compliance with the second order, if not the seventy-four (74) women already
indicated, at least a great number of them, or at least sixty (60) of them, as is said in the majority
decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces and
the municipal police, and had transportation facilities for the purpose. But the said respondent mayor
brought only eight (8) of the women before this court on January 13th. This fact can not, in my
judgment, with due respect to the majority opinion, justify the conclusion that the said respondent
has substantially complied with the second order of this court, but on the other hand demonstrates
that he had not complied with the mandate of this court in its first and second orders; that neither of
the said orders has been complied with by the respondent Justo Lukban, Mayor of the city of Manila,
who is, according to the majority decision, principally responsible for the contempt, to which
conclusion I agree. The conduct of the said respondent with respect to the second order confirms
the contempt committed by non-compliance with the first order and constitutes a new contempt
because of non-compliance with the second, because of the production of only eight (8) of the one
hundred and eighty-one (181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women who could not be
found in Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals
with the remedy of habeas corpus, presented by the petitioners and involving the question whether
they should or not be granted their liberty, the respondent has not given due attention to the same
nor has he made any effort to comply with the second order. In other words, he has disobeyed the
said two orders; has despised the authority of this court; has failed to give the respect due to justice;
and lastly, he has created and placed obstacles to the administration of justice in the said habeas
corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the
said proceeding with the promptness which the nature of the same required.

Contempt of court has been defined as a despising of the authority, justice, or dignity of the
court; and he is guilty of contempt whose conduct is such as tends to bring the authority and
administration of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of the court constitutes
contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p.
502.)

It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or

attempt to obstruct the service of legal process. If a person hinders or prevents the service of
process by deceiving the officer or circumventing him by any means, the result is the same
as though he had obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)

While it may seem somewhat incongruous to speak, as the courts often do, of enforcing
respect for the law and for the means it has provided in civilized communities for establishing
justice, since true respect never comes in that way, it is apparent nevertheless that the
power to enforce decorum in the courts and obedience to their orders and just measures is
 so essentially a part of the life of the courts that it would be difficult to conceive of their
usefulness or efficiency as existing without it. Therefore it may be said generally that where
due respect for the courts as ministers of the law is wanting, a necessity arises for the use of
compulsion, not, however, so much to excite individual respect as to compel obedience or to
remove an unlawful or unwarranted interference with the administration of justice. (Ruling
Case Law, vol. 6, p. 487.)

The power to punish for contempt is as old as the law itself, and has been exercised from the
earliest times. In England it has been exerted when the contempt consisted of scandalizing
the sovereign or his ministers, the law-making power, or the courts. In the American states
the power to punish for contempt, so far as the executive department and the ministers of
state are concerned, and in some degree so far as the legislative department is concerned,
is obsolete, but it has been almost universally preserved so far as regards the judicial
department. The power which the courts have of vindicating their own authority is a
necessary incident to every court of justice, whether of record or not; and the authority for
issuing attachments in a proper case for contempts out of court, it has been declared, stands
upon the same immemorial usage as supports the whole fabric of the common law. . . .
(Ruling Case Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have been disobeyed; the loss of the
prestige of the authority of the court which issued the said orders, which loss might have been
caused by noncompliance with the same orders on the part of the respondent Justo Lukban; the
damages which might have been suffered by some of the women illegally detained, in view of the
fact that they were not brought to Manila by the respondents to be presented before the court and of
the further fact that some of them were obliged to come to this city at their own expense while still
others were brought to Manila by the attorney for the petitioners, who paid out of his own pocket the
transportation of the said women; and the delay which was necessarily incurred in the resolution of
the petition interposed by the said petitioners and which was due to the fact that the said orders
were not opportunately and duly obeyed and complied with, are circumstances which should be
taken into account in imposing upon the respondent Justo Lukban the penalty corresponding to the
contempt committed by him, a penalty which, according to section 236 of the Code of Civil
Procedure, should consist of a fine not exceeding P1,000 or imprisonment not exceeding months, or
both such fine and imprisonment. In the imposition of the penalty, there should also be taken into
consideration the special circumstance that the contempt was committed by a public authority, the
mayor of the city of Manila, the first executive authority of the city, and consequently, the person
obliged to be the first in giving an example of obedience and respect for the laws and the valid and
just orders of the duly constituted authorities as well as for the orders emanating from the courts of
justice, and in giving help and aid to the said courts in order that justice may be administered with
promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed
upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be
charged against him. Lastly, I believe it to be my duty to state here that the records of this
proceeding should be transmitted to the Attorney-General in order that, after a study of the same
and deduction from the testimony which he may deem necessary, and the proper transmittal of the
same to the fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter shall
present the corresponding informations for the prosecution and punishment of the crimes which
have been committed on the occasion when the illegal detention of the women was carried into
effect by Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of
those crimes committed by reason of the same detention and while the women were in Davao. This
will be one of the means whereby the just hope expressed in the majority decision will be realized,
that is, that in the Philippine Islands there should exist a government of laws and not a government
of men and that this decision may serve to bulwark the fortifications of an orderly Government of
laws and to protect individual liberty from illegal encroachments.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 132601 January 19, 1999

LEO ECHEGARAY, petitioner,

vs.
SECRETARY OF JUSTICE, ET AL., respondents.

RESOLUTION

PUNO, J.:

For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this
Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental
Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that:

1. The Decision in this case having become final and executory, its execution enters the
exclusive ambit of authority of the executive authority. The issuance of the TRO may
be construed as trenching on that sphere of executive authority;
2. The issuance of the temporary restraining order . . . creates dangerous precedent as
there will never be an end to litigation because there is always a possibility that
Congress may repeal a law.
3. Congress had earlier deliberated extensively on the death penalty bill. To be certain,
whatever question may now be raised on the Death Penalty Law before the present
Congress within the 6-month period given by this Honorable Court had in all
probability been fully debated upon . . .
4. Under the time honored maxim lex futuro, judex praeterito, the law looks forward
while the judge looks at the past, . . . the Honorable Court in issuing the TRO has
transcended its power of judicial review.
5. At this moment, certain circumstances/supervening events transpired to the effect
that the repeal or modification of the law imposing death penalty has become nil, to
wit:

a. The public pronouncement of President Estrada that he will veto any law
imposing the death penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are against the repeal
of the law;
c. The fact that Senator Roco's resolution to repeal the law only bears his
signature and that of Senator Pimentel.
In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a
copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution
expressing the sense of the House of Representative to reject any move to review Republic Act No.
7659 which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary and
the Executive Department of the position of the House of Representative on this matter, and urging
the President to exhaust all means under the law to immediately implement the death penalty law."
The Resolution was concurred in by one hundred thirteen (113) congressman.

In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of
judicial power and duty and does not trench on executive powers nor on congressional prerogatives;
(2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not
lose jurisdiction to address incidental matters involved or arising from the petition; (4) public
respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that
the law on capital punishment will not be repealed or modified until Congress convenes and
considers all the various resolutions and bills filed before it.

Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not
incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic
review of his conviction by this Court. The instant motions were filed in this case, G.R. No. 132601,
where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and
regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999
merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and
Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to
intervene in the case at bar, let alone the fact that the interest of the State is properly represented by
the Solicitor General.

We shall now resolve the basic issues raised by the public respondents.

First. We do not agree with the sweeping submission of the public respondents that this Court lost its
jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner.
Obviously, public respondents are invoking the rule that final judgments can no longer be altered in
accord with the principle that "it is just as important that there should be a place to end as there
should be a place to begin litigation." 1 To start with, the Court is not changing even a comma of its
final Decision. It is appropriate to examine with precision the metes and bounds of the Decision of
this Court that became final. These metes and bounds are clearly spelled out in the Entry of
Judgment in this case, viz:

ENTRY OF JUDGMENT

This is to certify that on October 12, 1998 a decision rendered in the above-entitled
case was filed in this Office, the dispositive part of which reads as follows:

WHEREFORE, the petition is DENIED insofar as petitioner seeks to

declare the assailed statute (Republic Act No. 8177) as
unconstitutional; but GRANTED insofar as Sections 17 and 19 of the
Rules and Regulations to Implement Republic Act No. 8177 are
concerned, which are hereby declared INVALID because (a) Section
17 contravenes Article 83 of the Revised Penal Code, as amended by
Section 25 of Republic Act No. 7659; and (b) Section 19 fails to
provide for review and approval of the Lethal Injection Manual by the
 Secretary of Justice, and unjustifiably makes the manual confidential,
hence unavailable to interested parties including the accused/convict
and counsel. Respondents are hereby enjoined from enforcing and
implementing Republic Act No. 8177 until the aforesaid Sections 17
and 19 of the Rules and Regulations to Implement Republic Act No.
8177 are appropriately amended, revised and/or corrected in
accordance with this Decision.

SO ORDERED.

and that the same has, on November 6, 1988 become final and executory and is
hereby recorded in the Book of Entries of Judgment.

Manila, Philippine.

Clerk
of
Court

By:
(SGD)
TERES
ITA G.
DIMAI
SIP

Acting
Chief

Judicial
Record
s Office

The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable
Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the
Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision. On
October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he has
caused the publication of the said Amended Rules and Regulations as required by the
Administrative Code. It is crystalline that the Decision of this Court that became final and unalterable
mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules
and Regulations to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced
and implemented until sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177
are amended. It is also daylight clear that this Decision was not altered a whit by this Court. Contrary
to the submission of the Solicitor General, the rule on finality of judgment cannot divest this Court of
its jurisdiction to execute and enforce the same judgment. Retired Justice Camilo Quiason
synthesized the well established jurisprudence on this issue as
follows: 2

xxx xxx xxx

the finality of a judgment does not mean that the Court has lost all its powers nor the
case. By the finality of the judgment, what the court loses is its jurisdiction to amend,
 modify or alter the same. Even after the judgment has become final the court retains
its jurisdiction to execute and enforce it. 3 There is a difference between the
jurisdiction of the court to execute its judgment and its jurisdiction to amend, modify
or alter the same. The former continues even after the judgment has become final for
the purpose of enforcement of judgment; the latter terminates when the judgment
becomes final. 4 . . . For after the judgment has become final facts and circumstances
may transpire which can render the execution unjust or impossible.5

In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed
out by the petitioner, as early as 1915, this Court has unequivocably ruled in the case of Director of
Prisons v. Judge of First Instance, 6 viz:

This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same cannot change or alter its
judgment, as its jurisdiction has terminated . . . When in cases of appeal or review
the cause has been returned thereto for execution, in the event that the judgment
has been affirmed, it performs a ministerial duty in issuing the proper order. But it
does not follow from this cessation of functions on the part of the court with reference
to the ending of the cause that the judicial authority terminates by having then
passed completely to the Executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out of the penalty
and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible that assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the (court)
has performed its ministerial duty of ordering the execution . . . and its part is ended,
if however a circumstance arises that ought to delay the execution, and there is an
imperative duty to investigate the emergency and to order a postponement. Then the
question arises as to whom the application for postponing the execution ought to be
addressed while the circumstances is under investigation and so to who has
jurisdiction to make the investigation.

The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be
the subject of substantial subtraction for our Constitution 7 vests the entirety of judicial power in one
Supreme Court and in such lower courts as may be established by law. To be sure, the important
part of a litigation, whether civil or criminal, is the process of execution of decisions where
supervening events may change the circumstance of the parties and compel courts to intervene and
adjust the rights of the litigants to prevent unfairness. It is because of these unforseen, supervening
contingencies that courts have been conceded the inherent and necessary power of control of its
processes and orders to make them conformable to law and justice. 8 For this purpose, Section 6 of
Rule 135 provides that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary
writs, processes and other means necessary to carry it into effect may be employed by such court or
officer and if the procedure to be followed in the exercise of such jurisdiction is not specifically
pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted
which appears conformable to the spirit of said law or rules." It bears repeating that what the Court
restrained temporarily is the execution of its own Decision to give it reasonable time to check its
fairness in light of supervening events in Congress as alleged by petitioner. The Court, contrary to
popular misimpression, did not restrain the effectivity of a law enacted by Congress. 1âwphi1.nêt

The more disquieting dimension of the submission of the public respondents that this Court has no
jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the
judiciary. Since the implant of republicanism in our soil, our courts have been conceded the
jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court
promulgated rules concerning pleading, practice and procedure which, among others, spelled out
the rules on execution of judgments. These rules are all predicated on the assumption that courts
have the inherent, necessary and incidental power to control and supervise the process of execution
of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases.
Rule 120 governs judgments in criminal cases. It should be stressed that the power to promulgate
rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance
its independence, for in the words of Justice Isagani Cruz "without independence and integrity,
courts will lose that popular trust so essential to the maintenance of their vigor as champions of
justice." 9 Hence, our Constitutions continuously vested this power to this Court for it enhances its
independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning
pleading, practice and procedure was granted but it appeared to be co-existent with legislative
power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section
13, Article VIII provides:

Sec.13. 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
Court, subject to the power of the Supreme Court to alter and modify the same. The
Congress 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.

The said power of Congress, however, is not as absolute as it may appear on its surface. In In re
Cunanan 10Congress in the exercise of its power to amend rules of the Supreme Court regarding
admission to the practice of law, enacted the Bar Flunkers Act of 1953 11 which considered as a
passing grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and
71% in the 1952 bar examinations. This Court struck down the law as unconstitutional. In
his ponencia, Mr. Justice Diokno held that " . . . the disputed law is not a legislation; it is a judgment
— a judgment promulgated by this Court during the aforecited years affecting the bar candidates
concerned; and although this Court certainly can revoke these judgments even now, for justifiable
reasons, it is no less certain that only this Court, and not the legislative nor executive department,
that may do so. Any attempt on the part of these department would be a clear usurpation of its
function, as is the case with the law in question." 12The venerable jurist further ruled: "It is obvious,
therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this
Court, and the law passed by Congress on the matter is of permissive character, or as other
authorities say, merely to fix the minimum conditions for the license." By its ruling, this Court
qualified the absolutist tone of the power of Congress to "repeal, alter or supplement the rules
concerning pleading, practice and procedure, and the admission to the practice of law in the
Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973
Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and
procedure in all courts, . . . which, however, may be repealed, altered or supplemented by the
Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided:

xxx xxx xxx

Sec.5. The Supreme Court shall have the following powers.

xxx xxx xxx

(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. 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.

Well worth noting is that the 1973 Constitution further strengthened the independence of the
judiciary by giving to it the additional power to promulgate rules governing the integration of the
Bar. 13

The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it
enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:

xxx xxx xxx

Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(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 underprivileged. 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.
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
quasi-judicial 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. If the manifest intent of the 1987 Constitution is to strengthen
the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has
no jurisdiction to control the process of execution of its decisions, a power conceded to it and which
it has exercised since time immemorial.

To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to
control and supervise the implementation of its decision in the case at bar. As aforestated, our
Decision became final and executory on November 6, 1998. The records reveal that after November
6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of
this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable
Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of the
Warrant of Execution dated November 17, 1998 bearing the designated execution day of death
convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the
execution date fixed by such trial court to the public when requested." The relevant portions of the
Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide
the appropriate relief" state:

xxx xxx xxx

5. Instead of filing a comment on Judge Ponferrada's Manifestation

however, herein respondent is submitting the instant Manifestation
and Motion (a) to stress, inter alia, that the non-disclosure of the date
of execution deprives herein respondent of vital information
necessary for the exercise of his statutory powers, as well as renders
nugatory the constitutional guarantee that recognizes the people's
right to information of public concern, and (b) to ask this Honorable
Court to provide the appropriate relief.

6. The non-disclosure of the date of execution deprives herein

respondent of vital information necessary for the exercise of his
power of supervision and control over the Bureau of Corrections
pursuant to Section 39, Chapter 8, Book IV of the Administrative
Code of 1987, in relation to Title III, Book IV of such Administrative
Code, insofar as the enforcement of Republic Act No. 8177 and the
Amended Rules and Regulations to Implement Republic Act No.
8177 is concerned and for the discharge of the mandate of seeing to
it that laws and rules relative to the execution of sentence are
faithfully observed.

7. On the other hand, the willful omission to reveal the information

about the precise day of execution limits the exercise by the
President of executive clemency powers pursuant to Section 19,
Article VII (Executive Department) of the 1987 Philippine Constitution
and Article 81 of the Revised Penal Code, as amended, which
provides that the death sentence shall be carried out "without
prejudice to the exercise by the President of his executive powers at
 all times." (Emphasis supplied) For instance, the President cannot
grant reprieve, i.e., postpone the execution of a sentence to a day
certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a
precise date to reckon with. The exercise of such clemency power, at
this time, might even work to the prejudice of the convict and defeat
the purpose of the Constitution and the applicable statute as when
the date at execution set by the President would be earlier than that
designated by the court.

8. Moreover, the deliberate non-disclosure of information about the

date of execution to herein respondent and the public violates Section
7, Article III (Bill of Rights) and Section 28, Article II (Declaration of
Principles and State Policies) of the 1987 Philippine Constitution
which read:

Sec. 7. The right of the people to information on matters of public

concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development shall, be afforded the citizen, subject to such
limitations as may beprovided by law.

Sec. 28. Subject to reasonable conditions prescribed by law, the

State adopts and implements a policy of full public disclosure of all
transactions involving public interest.

9. The "right to information" provision is self-executing. It supplies

"the rules by means of which the right to information may be enjoyed
(Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by
guaranteeing the right and mandating the duty to afford access to
sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of the
Constitution without need for any ancillary act of the Legislature (Id.,
at p. 165) What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be afforded
which must, of necessity, be consistent with the declared State policy
of full public disclosure of all transactions involving public interest
(Constitution, Art. II, Sec. 28). However, it cannot be overemphasized
that whatever limitation may be prescribed by the Legislature, the
right and the duty under Art. III, Sec. 7 have become operative and
enforceable by virtue of the adoption of the New Charter." (Decision
of the Supreme Court En Banc in Legaspi v. Civil Service
Commission, 150 SCRA 530, 534-535 [1987].

The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner
Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his
client's right to due process and the public's right to information. The Solicitor General, as counsel for
public respondents, did not oppose petitioner's motion on the ground that this Court has no more
jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by
the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998.
There was not a whimper of protest from the public respondents and they are now estopped from
contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court
does not depend on the convenience of litigants.

II

Second. We likewise reject the public respondents' contention that the "decision in this case having
become final and executory, its execution enters the exclusive ambit of authority of the executive
department . . .. By granting the TRO, the Honorable Court has in effect granted reprieve which is an
executive function." 14 Public respondents cite as their authority for this proposition, Section 19,
Article VII of the Constitution which reads:

Except in cases of impeachment, or as otherwise provided in this Constitution, the

President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures after conviction by final judgment. He shall also have the power to grant
amnesty with the concurrence of a majority of all the members of the Congress.

The text and tone of this provision will not yield to the interpretation suggested by the public
respondents. The provision is simply the source of power of the President to grant reprieves,
commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It also
provides the authority for the President to grant amnesty with the concurrence of a majority of all the
members of the Congress. The provision, however, cannot be interpreted as denying the power of
courts to control the enforcement of their decisions after their finality. In truth, an accused who has
been convicted by final judgment still possesses collateral rights and these rights can be claimed in
the appropriate courts. For instance, a death convict who become insane after his final conviction
cannot be executed while in a state of insanity. 15 As observed by Antieau, "today, it is generally
assumed that due process of law will prevent the government from executing the death sentence
upon a person who is insane at the time of execution." 16 The suspension of such a death sentence is
undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve
though its effects is the same — the temporary suspension of the execution of the death convict. In
the same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing
the penalty of death to life imprisonment. The effect of such an amendment is like that of
commutation of sentence. But by no stretch of the imagination can the exercise by Congress of its
plenary power to amend laws be considered as a violation of the power of the President to commute
final sentences of conviction. The powers of the Executive, the Legislative and the Judiciary to save
the life of a death convict do not exclude each other for the simple reason that there is no higher
right than the right to life. Indeed, in various States in the United States, laws have even been
enacted expressly granting courts the power to suspend execution of convicts and their
constitutionality has been upheld over arguments that they infringe upon the power of the President
to grant reprieves. For the public respondents therefore to contend that only the Executive can
protect the right to life of an accused after his final conviction is to violate the principle of co-equal
and coordinate powers of the three branches of our government.

III

Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its
proper perspective as it has been grievously distorted especially by those who make a living by
vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at
about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4,
the first working day of 1999; (b) that members of Congress had either sought for his executive
clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator
Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital
punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President
Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of
the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital punishment,
and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding
review of the same law.

When the Very Urgent Motion was filed, the Court was already in its traditional recess and would
only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the
Court to a Special Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent
Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be
executed at 3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's
allegations about the moves in Congress to repeal or amend the Death Penalty Law are mere
speculations or not. To the Court's majority, there were good reasons why the Court should not
immediately dismiss petitioner's allegations as mere speculations and surmises. They noted that
petitioner's allegations were made in a pleading under oath and were widely publicized in the print
and broadcast media. It was also of judicial notice that the 11th Congress is a new Congress and
has no less than one hundred thirty (130) new members whose views on capital punishment are still
unexpressed. The present Congress is therefore different from the Congress that enacted the Death
Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No. 8177). In contrast, the Court's
minority felt that petitioner's allegations lacked clear factual bases. There was hardly a time to verify
petitioner's allegations as his execution was set at 3 p.m. And verification from Congress was
impossible as Congress was not in session. Given these constraints, the Court's majority did not
rush to judgment but took an extremely cautious stance by temporarily restraining the execution of
petitioner. The suspension was temporary — "until June 15, 1999, coeval with the constitutional
duration of the present regular session of Congress, unless it sooner becomes certain that no repeal
or modification of the law is going to be made." The extreme caution taken by the Court was
compelled, among others, by the fear that any error of the Court in not stopping the execution of the
petitioner will preclude any further relief for all rights stop at the graveyard. As life was at, stake, the
Court refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt
it needed the certainty that the legislature will not petitioner as alleged by his counsel. It was
believed that law and equitable considerations demand no less before allowing the State to take the
life of one its citizens.

The temporary restraining order of this Court has produced its desired result, i.e., the crystallization
of the issue whether Congress is disposed to review capital punishment. The public respondents,
thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that
Congress will repeal or amend the death penalty law. He names these supervening events as
follows:

xxx xxx xxx

a. The public pronouncement of President Estrada that he will veto any law imposing
the death penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are against the repeal of the
law;
c. The fact that Senator Roco's resolution to repeal the law only bears his signature and
that of Senator Pimentel. 18

In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House
Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of
the House of Representatives to reject any move to review R.A. No. 7659 which provided for the
reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of
the position of the House of Representative on this matter and urging the President to exhaust all
means under the law to immediately implement the death penalty law." The Golez resolution was
signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that extended
up 3 o'clock in the morning, the House of Representative with minor, the House of Representative
with minor amendments formally adopted the Golez resolution by an overwhelming vote. House
Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review
Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify
the Second Protocol in review of the prevalence of heinous crimes in the country. In light of these
developments, the Court's TRO should now be lifted as it has served its legal and humanitarian
purpose.

A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital
punishment had been the subject of endless discussion and will probably never be settled so long as
men believe in punishment." 19 In our clime and time when heinous crimes continue to be unchecked,
the debate on the legal and moral predicates of capital punishment has been regrettably blurred by
emotionalism because of the unfaltering faith of the pro and anti-death partisans on the right and
righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of
epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse
of words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty
of this Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice
Brennan reminds us ". . . it is the very purpose of the Constitution — and particularly the Bill of
Rights — to declare certain values transcendent, beyond the reach of temporary political
majorities." 20 Man has yet to invent a better hatchery of justice than the courts. It is a hatchery where
justice will bloom only when we can prevent the roots of reason to be blown away by the winds of
rage. The flame of the rule of law cannot be ignited by rage, especially the rage of the mob which is
the mother of unfairness. The business of courts in rendering justice is to be fair and they can pass
their litmus test only when they can be fair to him who is momentarily the most hated by society. 21

IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration
and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining
Order issued in its Resolution of January 4, 1999.

The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial
Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in
accordance with applicable provisions of law and the Rules of Court, without further delay.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez, Quisumbing, Purisima and
Pardo, JJ., concur.

Vitug and Panganiban, JJ., Please see Separate Opinion.

Buena and Gonzaga-Reyes, JJ., took no part.

Separate Opinions
VITUG, J., separate opinion;

Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it
prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of
my brethren on the Court, who hold similarly, have consistently expressed this stand in the
affirmance by the Court of death sentences imposed by Regional Trial Courts.

In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a
temporary restraining order ("TRO") because, among other things, of what had been stated to be
indications that Congress would re-examine the death penalty law. It was principally out of respect
and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly
minded, that motivated the Court to grant, after deliberation, a limited time for the purpose.

The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment
convicting the accused or recall the imposition of the death penalty.

The doctrine has almost invariably been that after a decision becomes final and executory, nothing
else is further done except to see to its compliance since for the Court to adopt otherwise would be
to put no end to litigations The rule notwithstanding, the Court retains control over the case until the
full satisfaction of the final judgment conformably with established legal processes. Hence, the Court
has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry
out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and
executory judgments admits of settled exceptions. Concededly, the Court may, for instance,
suspend the execution of a final judgment when it becomes imperative in the higher interest of
justice or when supervening events warrant it.1 Certainly, this extraordinary relief cannot be denied
any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement
in Director of Prisons vs. Judge of First Instance of Cavite,2 should be instructive. Thus —

This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same has elapsed, the court can not
change or after its judgment, as its jurisdiction has terminated, functus est officio suo,
according to the classical phrase. When in cases of appeal or review the cause has
been returned thereto for execution, in the event that the judgment has been
affirmed, it performs a ministerial duty in issuing the proper order. But it does not
follow from this cessation of functions on the part of the court with reference to the
ending of the cause that the judicial authority terminates by having then passed
completely to the executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out the penalty
and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that, notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible the assertion in absolute terms
 that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the Court of
First Instance has performed its ministerial duty of ordering the execution, functus est
officio suo, and its part is ended, if however a circumstance arises that ought to delay
the execution, there is an imperative duty to investigate the emergency and to order
a postponement . . ..

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the
President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or
modify the law that could benefit the convicted accused are not essentially preclusive of one another
nor constitutionally incompatible and may each be exercised within their respective spheres and
confines. Thus, the stay of execution issued by the Court would not prevent either the President from
exercising his pardoning power or Congress from enacting a measure that may be advantageous to
the adjudged offender.

The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999,
"coeval with the duration of the present regular session of Congress," if it "sooner becomes certain
that no repeal or modification of the law is going to be made." The "Urgent Motion for
Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain
circumstances/supervening events (have) transpired to the effect that the repeal or modification of
the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any
chance for a timely3 re-examination by Congress of the death penalty law, then I can appreciate why
the majority of the Justices on the Court feel rightly bound even now to lift the TRO.

I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most
thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for
the need to have a second look at the conditions sine qua non prescribed by the Constitution in the
imposition of the death penalty. In People vs. Masalihit,4 in urging, with all due respect, Congress to
consider a prompt re-examination of the death penalty law, I have said:

The determination of when to prescribe the death penalty lies, in the initial instance,
with the law-making authority, the Congress of the Philippines, subject to the
conditions that the Constitution itself has set forth; viz: (1) That there must
be compelling reasons to justify the imposition of the death penalty; and (2) That the
capital offense must involve a heinous crime. It appears that the fundamental law did
not contemplate a simple 'reimposition' of the death penalty to offenses theretofore
alreadyprovided in the Revised Penal Code or, let alone, just because of it. The term
'compelling reasons' would indicate to me that there must first be a marked change in
the milieu from that which has prevailed at the time of adoption of the 1987
Constitution, on the one hand, to that which exists at the enactment of the statute
prescribing the death penalty, upon the other hand, that would make it distinctively
inexorable to allow the re-imposition of the death penalty. Most importantly, the
circumstances that would characterize the 'heinous nature' of the crime and make it
so exceptionally offensive as to warrant the death penalty must be spelled out with
great clarity in the law, albeit without necessarily precluding the Court from exercising
its power of judicial review given the circumstances of each case. To venture, in the
case of murder, the crime would become 'heinous' within the Constitutional concept,
when, to exemplify, the victim is unnecessarily subjected to a painful and
excruciating death or, in the crime of rape, when the offended party is callously
humiliated or even brutally killed by the accused. The indiscriminate imposition of the
death penalty could somehow constrain courts to apply, perhaps without consciously
 meaning to, stringent standards for conviction, not too unlikely beyond what might
normally be required in criminal cases, that can, in fact, result in undue exculpation of
offenders to the great prejudice of victims and society.

Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met
as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the
majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the
Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each
time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto.

Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone
else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion;

I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the
disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned
disquisition. I write only to explain my vote in the context of the larger issue of the death penalty.

Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during
its current session which ends on June 15, 1999 and that, in any event, the President will veto any
such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my
objections to the imposition of the death penalty transcend the TRO and permeate its juridical
essence.

I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts
thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and
"compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly
stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the
Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of
my Dissent promulgated on February 7, 1997.

Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and
enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is
unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA
8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in
which RA 7659 ( the Death Penalty Law) is to implemented.

Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the
Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority
vote, be implemented by means of lethal injection.

FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration.

G.R. No. 117472 February 7, 1997

PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO.

Supplemental Motion for Reconsideration

 SEPARATE OPINION

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained
counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic
Act. No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original
Motion for Reconsideration filed by his previous counsel,3 this transcendental issue was nor brought
up. Hence, it was not passed upon by this Court in its Decision affirming the trial court's sentence of
death.4

The Constitution Abolished Death Penalty

Sec. 19, Article III of the 1987 Constitution provides:

Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless for compelling
reasons involving heinous crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced toreclusion perpetua. (Emphasis supplied)

The second and third sentences of the above provision are new and had not been written in the
1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death
penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and
reduced "any death penalty already imposed" toreclusion perpetua. The provision has both a
prospective aspect (it bars the future imposition of the penalty) and a retroactive one (it reduces
imposed capital sentences to the lesser penalty of imprisonment).

This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the
imposition of the death penalty, but in fact completely abolished it from the statute books. The
automatic commutation or reduction toreclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital
crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried
out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed,6 "(t)he
majority voted for the constitutional abolition of the death penalty."

Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the
provision regarding the non-imposition of the death penalty, what he had in mind was the total
abolition and removal from the statute books of the death penalty. This became the intent of the
frames of the Constitution when they approved the provision and made it a part of the Bill of Rights."
With such abolition as a premise, restoration thereof becomes an exception to a constitutional
mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly
construed against the State and liberally in favor of the people.8 In this light, RA 7659 enjoys no
presumption of constitutionality.

The Constitution Strictly Limits

Congressional Prerogative to Prescribe Death

To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to restore it at some future time to enable or empower
courts to reimpose it on condition that it (Congress)9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward"10): the authority of
Congress to "provide for it" is not absolute. Rather, it is strictly limited:

1. by "compelling reasons" that may arise after the Constitution became effective; and
2. to crimes which Congress should identify or define or characterize as "heinous."

The Constitution inexorably placed upon Congress the burden of determining the existence of
"compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-
making prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress,
by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on
individual offenders found guilty beyond reasonable doubt of committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA 7659 11 to "provide for it" (the
death penalty) (1) by amending certain provisions of the Revised Penal Code; 12 (2) by incorporating
a new article therein; 13 and (3) by amending certain special laws. 14

But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and
in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or justify the reasons for the more sever
sanction, either collectively for all the offenses or individually for each of them.

Generally, it merely reinstated the concept of and the method by which the death penalty had been
imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.

The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted
it by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave
abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III,
Sec. 19? The answer, I respectfully submit, is YES.

Heinous Crimes

To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY
to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress.
As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death
as an applicable penalty. It did not give a standard or a characterization by which courts may be able
to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its
constitutionally limited power. In deference thereto, it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:

WHEREAS, the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.

In my humble view, however, the foregoing clause is clearly an insufficient definition or

characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be
"heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of heinousness can be determined. Calling the crimes
"grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the
description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood
as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm
it with thorns.

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is
clear and unambiguous, the preamble can neither expand nor restrict its operation, much less
prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the
Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the presence or absence of aggravating
circumstances. 16

In other words, it just reinstated capital punishment for crimes which were already punishable with
death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and
qualified bribery,17 no new crimes were introduced by RA 7659. The offenses punished by death
under said law were already to punishable by the Revised Penal Code 18 and by special laws.

During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to
a question of Sen. Ernesto Maceda, wryly said: 19

So we did not go that far from the Revised Penal Code, Mr. President, and from
existing special laws which, before abolition of the death penalty, had already death
as the maximum penalty.

By merely reimposing capital punishment on the very same crimes which were already penalized
with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental
law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our
criminal laws and 2) make its restoration possible only under and subject to stringent conditions is
evident not only from the language of the Constitution but also from the charter debates on this
matter.

The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous,
he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape
victim". 20 Note that the honorable commissioners did not just say "murder" but organized murder; not
just rape but brutal murder of a rape victim. While the debates were admittedly rather scanty, I
believe that the available information shows that, when deliberating on "heinousness", the
Constitutional Commission did not have in mind the offenses already existing and already penalized
with death. I also believe that the heinousness clause requires that:

1. the crimes should be entirely new offenses, the elements of which have an inherent
quality, degree or level of perversity, depravity or viciousness unheard of until then;
or
2. even existing crimes, provided some new element or essential ingredient like
"organized" or "brutal" is added to show their utter perversity, odiousness or
malevolence; or
 3. the means or method by which the crime, whether new or old, is carried out evinces
a degree or magnitude of extreme violence, evil, cruelty, atrocity, viciousness as to
demonstrate its heinousness. 21

For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.

Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the Constitution also directs
Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that
paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement.
But such effort was at best feeble and inconsequential. It should be remembered that every word or
phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed
aside. Thus, I believe that the compelling reasons and the characterization of heinousness cannot
be done wholesale but must shown for each and every crime, individually and separately.

The words "compelling reasons" were included in the Charter because, in the words of Comm.
Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that
the conditions and the situation (during the deliberations of the Constitutional Commission) might
change for very specific reasons" requiring the return of the constitutionally-abhorred penalty.

In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo
Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these
compelling reasons: 23

MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . .

MR. GARCIA (P.). The worsening peace and order condition in the country, Mr.
Speaker. That is one.

MR. LAGMAN. So the compelling reason which the distinguished sponsor would like
to justify or serve as an anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order situation. The Gentleman claims
that is one the compelling reasons. But before we dissent this particular "compelling
reason," may we know what are the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.) Justice, Mr. Speaker.

MR. LAGMAN. Justice.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman
kindly elaborate on that answer? Why is justice a compelling reason as if justice was
not obtained at the time the Constitution abolished the death penalty? Any
compelling reason should be a supervening circumstances after 1987.

MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one
lives in an organized society governed by law, justice demands that crime be
 punished and that the penalty imposed be commensurate with the offense
committed.

MR. LAGMAN. The Gentleman would agree with me that when the Constitution
speaks of the compelling reasons to justify the reimposition of death penalty, it refers
to reasons which would supervene or come after the approval of the 1987
Constitution. Is he submitting that justice, in his own concept of a commensurate
penalty for the offense committed, was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified it?

MR. GARCIA (P.). That is precisely why we are saying that now, under present
conditions, because of the seriousness of the offenses being committed at this time,
justice demands that the appropriate penalty must be meted out for those who have
committed heinous crimes.

xxx xxx xxx

In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order"
and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify
the revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent.
Statistics from the Philippine National Police show that the crime volume and crime rate particularly
on those legislated capital offenses did not worsen but in fact declined between 1987, the date when
the Constitution took effect, and 1993, the year when RA 7659 was enacted. Witness the following
debate 24 also between Representatives Garcia and Lagman:

MR. LAGMAN. Very good, Mr. Speaker.

Now, can we go to 1987. Could the Gentleman from Cebu inform us the volume of
the crime of murder in 1987?

MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305.

MR. LAGMAN. So, the corresponding crime rate was 21 percent.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. That was in 1987, Mr. Speaker, could the distinguished chairman
inform us the volume of murder in 1988?

MR. GARCIA (P.). It was 10,521, Mr. Speaker.

MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988.

Correspondingly, the crime rate in the very year after the abolition of the death
penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker?

MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by
the PC.

MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the
death penalty? May we know from the distinguished Gentleman the volume of
robbery in 1987?
 MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it.

MR. LAGMAN. No, Mr. Speaker, I am asking the question.

MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent.

MR. LAGMAN. This was the year immediately after the abolition of the death penalty.
Could the Gentleman tell us the volume of robbery cases in 1988?

MR. GARCIA (P.). It was 16,926, Mr. Speaker.

MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that the
volume of robbery cases declined from 22,942 in 1987 or crime rate of 40 percent to
16,926 or a crime rate of 29 percent. Would the Gentleman confirm
that, Mr. Speaker?

MR. GARCIA (P.). This is what the statistics say, I understand we are reading now
from the same document.

MR. LAGMAN. Now, going to homicide, the volume 1987 was 12,870 or a crime rate
of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent. Would
the Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.). As I Said, Mr. Speaker, we are reading from the same document
and I would not want to say that the Gentleman is misreading the document that I
have here.

MR. LAGMAN. But would the Gentleman confirm that?

MR. GARCIA (P.). The document speaks for itself.

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of
persons arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25

Let me cite this concrete statistics by the Dangerous Drug Board.

In 1987 — this was the year when the death penalty was
abolished — the persons arrested in drug-related cases were 3,062, and the figure
dropped to 2,686 in 1988.

By the way, I will furnish my Colleagues with a photocopy of this report.

From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It
still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991.

But in 1987, when the death penalty was abolished, as far as the drug-related cases
are concerned, the figure continued a downward trend, and there was no death
penalty in this time from, 1988 to 1991.
In a further attempt to show compelling reasons, the proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have been submitted to show with any
conclusiveness the relationship between the prescription of the death penalty for certain offenses
and the commission or non-commission thereof. This is a theory that can be debated on and on, 27 in
the same manner that another proposition — that the real deterrent to crime is the certainty of
immediate arrest, prosecution and conviction of the culprit without unnecessary risk, expense and
inconvenience to the victim, his heirs or his witnesses — can be argued indefinitely. 28 This debate
can last till the academics grow weary of the spoken word, but it would not lessen the
constitutionally-imposed burden of Congress to act within the "heinousness" and "compelling
reasons" limits of its death-prescribing power.

Other Constitutional Rights

Militate Against RA 7659

It should be emphasized that the constitutional ban against the death penalty is included in our Bill of
Rights. As such, it should — like any other guarantee in favor of the accused — be zealously
protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor
of the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is
not just crimes — but capital crimes!

So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that
"(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary
right of the people to enjoy life — life at its fullest, life in dignity and honor — is not only reiterated by
the 1987 Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence,
the Constitution values the dignity of every human person and guarantees full respect for human
rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death,
emphasizes the individual right to life by giving protection to the life of the mother and the unborn
from the moment of conception 34 and establishes the people's rights to health, a balanced ecology
and education. 35

This Constitutional explosion of concern for man more than property for people more than the state,
and for life more than mere existence augurs well for the strict application of the constitutional limits
against the revival of death penalty as the final and irreversible exaction of society against its
perceived enemies.

Indeed, volumes have been written about individual rights to free speech. assembly and even
religion. But the most basic and most important of these rights is the right to life. Without life, the
other rights cease in their enjoyment, utility and expression.

This opinion would not be complete without a word on the wrenching fact that the death penalty
militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row
Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:

1. Since the reimposition of the death penalty, 186 persons 37 have been sentenced to
death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995,
the number rose to 90; an average of seven (7) convicts per month; double the
monthly average of capital sentences imposed the prior year. From January to June
1996, the number of death penalty convicts reached 72, an average of 12 convicts
per month, almost double the monthly average of capital sentences imposed in 1995.
 2. Of the 165 convicts polled, approximately twenty one percent (21%) earn between
P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn
between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are
exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent
(4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to
P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%),
those earning P15,000 and above only one percent (1%). Approximately thirteen
percent (13%) earn nothing at all, while approximately two percent (2%) earn
subsistence wages with another five percent (5%) earning variable income.
Approximately nine percent (9%) do not know how much they earn in a month.
3. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the
government-mandated minimum monthly wage of P4,290; ten (10) of these earn
below the official poverty line set by government. Twenty six (26) earn between
P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only
one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on
a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of
their monthly income. Twenty two (22) convicts earn nothing at all.
4. In terms of occupation, approximately twenty one percent (21%) are agricultural
workers or workers in animal husbandry; of these thirty (30), or almost one-fifth
thereof, are farmers. Thirty five percent (35%) are in the transport and construction
industry, with thirty one (31) construction workers or workers in allied fields
(carpentry, painting, welding) while twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers.
Eighteen percent (18%) are in clerical, sales and service industries, with fourteen
(14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve
(12) service workers (butchers, beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians) and four (4) clerks (janitors,
MERALCO employee and clerk) About four percent (4%) are government workers,
with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and executives comprise only three percent
(3%), nine percent (9%) are unemployed.
5. None of the DRC's use English as their medium of communication. About forty four
percent (44%), or slightly less than half speak and understand Tagalog; twenty six
percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak
and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and
Waray. One (1) convict is a foreign national and speaks and understand Niponggo.
6. Approximately twelve percent (12%) graduated from college, about forty seven
percent (47%) finished varying levels of elementary education with twenty seven (27)
graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts,
finished varying levels of high school, with more than half of them graduating from
high school. Two (2) convicts finished vocational education; nine (9) convicts did not
study at all.

The foregoing profile based on age, language and socio-economic situations sufficiently
demonstrates that RA 7659 has militated against the poor and the powerless in society — those who
cannot afford the legal services necessary in capital crimes, where extensive preparation,
investigation, research and presentation are required. The best example to shoe the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in
the proceedings in the trial court and even before this Court until the Free legal Assistance Group
belatedly brought it up in the Supplemental Motion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex and written in a strange,
incomprehensible language. Worse still, judicial proceedings are themselves complicated,
intimidating and damning. The net effect of having a death penalty that is imposed more often than
not upon the impecunious is to engender in the minds of the latter, a sense — unfounded, to be
sure, but unhealthy nevertheless — of the unequal balance of the scales of justice.

Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-
economic profile of the DRCs, the law reviving capital punishment does not in any way single out or
discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far
as the disadvantaged are concerned, the law would still be complex and written in a strange and
incomprehensible language, and judicial proceedings complicated and intimidating, whether the
ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that,
whatever the penalties set by law, it seems to me that there will always be certain class or classes of
people in our society who, by reason of their poverty, lack of educational attainment and
employment opportunities, are consequently confined to living, working and subsisting in less-than-
ideal environments, amidst less-than-genteel neighbors similarly situated as themselves, and are
therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and
crime. So from that perspective, the law reviving the death penalty neither improves nor worsens
their lot substantially. Or, to be more precise, such law may even be said to help improve their
situation (at least in theory) by posing a much stronger deterrent to the commission of heinous
crimes.

However, such a viewpoint simply ignores the very basic differences that exist in the situations of the
poor and the non-poor. Precisely because the underprivileged are what they are, they require and
deserve a greater degree of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be empowered to rise above
themselves and their situation. The basic postulates for such a position are, I think, simply that
everyone ultimately wants to better himself and that we cannot better ourselves individually to any
significant degree if we are unable to advance as an entire people and nation. All the pro-poor
provisions of the Constitution point in this direction. Yet we are faced with this law that effectively
inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater
majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases
all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and
constitutional firmament.

Epilogue

In sum, I respectfully submit that:

(1) The 1987 Constitution abolished the death penalty from our statute books. It did not merely
suspend or prohibit its imposition.

(2) The Charter effectively granted a new right: the constitution right against the death penalty, which
is really a species of the right to life.

(3) Any law reviving the capital penalty must be strictly construed against the State and liberally in
favor of the accused because such a stature denigrates the Constitution, impinges on a basic right
and tends to deny equal justice to the underprivileged.

(4) Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-
treated or brushed aside.

(5) Congressional power death is severely limited by two concurrent requirements:

 a. First, Congress must provide a set of attendant circumstances which the prosecution
must prove beyond reasonable doubt, apart from the elements of the crime and itself.
Congress must explain why and how these circumstances define or characterize the
crime as "heinous".
b. Second, Congress has also the duty of laying out clear and specific reasons which
arose after the effectivity of the Constitution compelling the enactment of the law. It
bears repeating that these requirements are inseparable. They must both be present
in view of the specific constitutional mandate — "for compelling reasons involving
heinous crimes." The compelling reason must flow from the heinous nature of the
offense.

(6) In every law reviving the capital penalty, the heinousness and compelling reasons must be set
out for each and every crime, and not just for all crimes generally and collectively.

"Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the
vast majority of our people belong, acknowledges the power of public authorities to prescribe the
death penalty, it advisedly limits such prerogative only to "cases of extreme
gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to
Life), 40 "punishment must be carefully evaluated and decided upon, and ought not to go to the
extreme of executing the offender except in cases of absolute necessity: in other words, when it
would not be possible otherwise to defend society . . . (which is) very rare, if not practically non-
existent."

Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death
penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and
above even the state which man created precisely to protect, cherish and defend him. The
Constitution reluctantly allows capital punishment only for "compelling reasons involving heinous
crimes" just as the Church grudgingly permits it only reasons of "absolute necessity" involving crimes
of "extreme gravity", which are very rare and practically non-existent.

In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply
discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe
death against well-defined "heinous" crimes?

I respectfully submit it has not.

WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental
Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by
deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion
perpetua.

I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the
crimes mentioned in its text.

Separate Opinions
VITUG, J., separate opinion;

Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it
prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of
my brethren on the Court, who hold similarly, have consistently expressed this stand in the
affirmance by the Court of death sentences imposed by Regional Trial Courts.

In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a
temporary restraining order ("TRO") because, among other things, of what had been stated to be
indications that Congress would re-examine the death penalty law. It was principally out of respect
and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly
minded, that motivated the Court to grant, after deliberation, a limited time for the purpose.

The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment
convicting the accused or recall the imposition of the death penalty.

The doctrine has almost invariably been that after a decision becomes final and executory, nothing
else is further done except to see to its compliance since for the Court to adopt otherwise would be
to put no end to litigations The rule notwithstanding, the Court retains control over the case until the
full satisfaction of the final judgment conformably with established legal processes. Hence, the Court
has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry
out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and
executory judgments admits of settled exceptions. Concededly, the Court may, for instance,
suspend the execution of a final judgment when it becomes imperative in the higher interest of
justice or when supervening events warrant it.1 Certainly, this extraordinary relief cannot be denied
any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement
in Director of Prisons vs. Judge of First Instance of Cavite,2 should be instructive. Thus —

This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same has elapsed, the court can not
change or after its judgment, as its jurisdiction has terminated, functus est officio suo,
according to the classical phrase. When in cases of appeal or review the cause has
been returned thereto for execution, in the event that the judgment has been
affirmed, it performs a ministerial duty in issuing the proper order. But it does not
follow from this cessation of functions on the part of the court with reference to the
ending of the cause that the judicial authority terminates by having then passed
completely to the executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out the penalty
and to pardon.

Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that, notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible the assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the Court of
 First Instance has performed its ministerial duty of ordering the execution, functus est
officio suo, and its part is ended, if however a circumstance arises that ought to delay
the execution, there is an imperative duty to investigate the emergency and to order
a postponement . . ..

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the
President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or
modify the law that could benefit the convicted accused are not essentially preclusive of one another
nor constitutionally incompatible and may each be exercised within their respective spheres and
confines. Thus, the stay of execution issued by the Court would not prevent either the President from
exercising his pardoning power or Congress from enacting a measure that may be advantageous to
the adjudged offender.

The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999,
"coeval with the duration of the present regular session of Congress," if it "sooner becomes certain
that no repeal or modification of the law is going to be made." The "Urgent Motion for
Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain
circumstances/supervening events (have) transpired to the effect that the repeal or modification of
the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any
chance for a timely3 re-examination by Congress of the death penalty law, then I can appreciate why
the majority of the Justices on the Court feel rightly bound even now to lift the TRO.

I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most
thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for
the need to have a second look at the conditions sine qua non prescribed by the Constitution in the
imposition of the death penalty. In People vs. Masalihit,4 in urging, with all due respect, Congress to
consider a prompt re-examination of the death penalty law, I have said:

The determination of when to prescribe the death penalty lies, in the initial instance,
with the law-making authority, the Congress of the Philippines, subject to the
conditions that the Constitution itself has set forth; viz: (1) That there must
be compelling reasons to justify the imposition of the death penalty; and (2) That the
capital offense must involve a heinous crime. It appears that the fundamental law did
not contemplate a simple 'reimposition' of the death penalty to offenses theretofore
alreadyprovided in the Revised Penal Code or, let alone, just because of it. The term
'compelling reasons' would indicate to me that there must first be a marked change in
the milieu from that which has prevailed at the time of adoption of the 1987
Constitution, on the one hand, to that which exists at the enactment of the statute
prescribing the death penalty, upon the other hand, that would make it distinctively
inexorable to allow the re-imposition of the death penalty. Most importantly, the
circumstances that would characterize the 'heinous nature' of the crime and make it
so exceptionally offensive as to warrant the death penalty must be spelled out with
great clarity in the law, albeit without necessarily precluding the Court from exercising
its power of judicial review given the circumstances of each case. To venture, in the
case of murder, the crime would become 'heinous' within the Constitutional concept,
when, to exemplify, the victim is unnecessarily subjected to a painful and
excruciating death or, in the crime of rape, when the offended party is callously
humiliated or even brutally killed by the accused. The indiscriminate imposition of the
death penalty could somehow constrain courts to apply, perhaps without consciously
meaning to, stringent standards for conviction, not too unlikely beyond what might
normally be required in criminal cases, that can, in fact, result in undue exculpation of
offenders to the great prejudice of victims and society.
Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met
as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the
majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the
Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each
time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto.

Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone
else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion;

I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the
disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned
disquisition. I write only to explain my vote in the context of the larger issue of the death penalty.

Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during
its current session which ends on June 15, 1999 and that, in any event, the President will veto any
such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my
objections to the imposition of the death penalty transcend the TRO and permeate its juridical
essence.

I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts
thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and
"compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly
stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the
Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of
my Dissent promulgated on February 7, 1997.

Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and
enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is
unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA
8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in
which RA 7659 ( the Death Penalty Law) is to implemented.

Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the
Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority
vote, be implemented by means of lethal injection.

FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration.

G.R. No. 117472 February 7, 1997

PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO.

Supplemental Motion for Reconsideration

SEPARATE OPINION

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained
counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic
Act. No. 7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original
Motion for Reconsideration filed by his previous counsel,3 this transcendental issue was nor brought
up. Hence, it was not passed upon by this Court in its Decision affirming the trial court's sentence of
death.4

The Constitution Abolished Death Penalty

Sec. 19, Article III of the 1987 Constitution provides:

Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless for compelling
reasons involving heinous crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced toreclusion perpetua. (Emphasis supplied)

The second and third sentences of the above provision are new and had not been written in the
1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death
penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and
reduced "any death penalty already imposed" toreclusion perpetua. The provision has both a
prospective aspect (it bars the future imposition of the penalty) and a retroactive one (it reduces
imposed capital sentences to the lesser penalty of imprisonment).

This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the
imposition of the death penalty, but in fact completely abolished it from the statute books. The
automatic commutation or reduction toreclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital
crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried
out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed,6 "(t)he
majority voted for the constitutional abolition of the death penalty."

Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the
provision regarding the non-imposition of the death penalty, what he had in mind was the total
abolition and removal from the statute books of the death penalty. This became the intent of the
frames of the Constitution when they approved the provision and made it a part of the Bill of Rights."
With such abolition as a premise, restoration thereof becomes an exception to a constitutional
mandate. Being an exception and thus in derogation of the Constitution, it must then be strictly
construed against the State and liberally in favor of the people.8 In this light, RA 7659 enjoys no
presumption of constitutionality.

The Constitution Strictly Limits

Congressional Prerogative to Prescribe Death

To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to restore it at some future time to enable or empower
courts to reimpose it on condition that it (Congress)9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward"10): the authority of
Congress to "provide for it" is not absolute. Rather, it is strictly limited:

1. by "compelling reasons" that may arise after the Constitution became effective; and
 2. to crimes which Congress should identify or define or characterize as "heinous."

The Constitution inexorably placed upon Congress the burden of determining the existence of
"compelling reasons" and of defining what crimes are "heinous" before it could exercise its law-
making prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress,
by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on
individual offenders found guilty beyond reasonable doubt of committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA

7659 11 to "provide for it" (the death penalty) (1) by amending certain provisions of the Revised Penal
Code; 12 (2) by incorporating a new article therein; 13 and (3) by amending certain special laws. 14

But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and
in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or justify the reasons for the more sever
sanction, either collectively for all the offenses or individually for each of them.

Generally, it merely reinstated the concept of and the method by which the death penalty had been
imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.

The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted
it by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave
abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III,
Sec. 19? The answer, I respectfully submit, is YES.

Heinous Crimes

To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY
to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress.
As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death
as an applicable penalty. It did not give a standard or a characterization by which courts may be able
to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its
constitutionally limited power. In deference thereto, it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:

WHEREAS, the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.

In my humble view, however, the foregoing clause is clearly an insufficient definition or

characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be
"heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of heinousness can be determined. Calling the crimes
"grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the
description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood
as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm
it with thorns.
Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is
clear and unambiguous, the preamble can neither expand nor restrict its operation, much less
prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the
Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the presence or absence of aggravating
circumstances. 16

In other words, it just reinstated capital punishment for crimes which were already punishable with
death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and
qualified bribery,17 no new crimes were introduced by RA 7659. The offenses punished by death
under said law were already to punishable by the Revised Penal Code 18 and by special laws.

During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to
a question of Sen. Ernesto Maceda, wryly said: 19

So we did not go that far from the Revised Penal Code, Mr. President, and from
existing special laws which, before abolition of the death penalty, had already death
as the maximum penalty.

By merely reimposing capital punishment on the very same crimes which were already penalized
with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental
law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our
criminal laws and 2) make its restoration possible only under and subject to stringent conditions is
evident not only from the language of the Constitution but also from the charter debates on this
matter.

The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous,
he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape
victim". 20 Note that the honorable commissioners did not just say "murder" but organized murder; not
just rape but brutal murder of a rape victim. While the debates were admittedly rather scanty, I
believe that the available information shows that, when deliberating on "heinousness", the
Constitutional Commission did not have in mind the offenses already existing and already penalized
with death. I also believe that the heinousness clause requires that:

1. the crimes should be entirely new offenses, the elements of which have an inherent
quality, degree or level of perversity, depravity or viciousness unheard of until then;
or
2. even existing crimes, provided some new element or essential ingredient like
"organized" or "brutal" is added to show their utter perversity, odiousness or
malevolence; or

3) the means or method by which the crime, whether new or old, is carried out
evinces a degree or magnitude of extreme violence, evil, cruelty, atrocity,
viciousness as to demonstrate its heinousness. 21
For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.

Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the Constitution also directs
Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that
paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement.
But such effort was at best feeble and inconsequential. It should be remembered that every word or
phrase in the Constitution is sacred and should never be ignored, cavalierly-treated or brushed
aside. Thus, I believe that the compelling reasons and the characterization of heinousness cannot
be done wholesale but must shown for each and every crime, individually and separately.

The words "compelling reasons" were included in the Charter because, in the words of Comm.
Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that
the conditions and the situation (during the deliberations of the Constitutional Commission) might
change for very specific reasons" requiring the return of the constitutionally-abhorred penalty.

In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo
Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these
compelling reasons: 23

MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . .

MR. GARCIA (P.). The worsening peace and order condition in the country, Mr.
Speaker. That is one.

MR. LAGMAN. So the compelling reason which the distinguished sponsor would like
to justify or serve as an anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order situation. The Gentleman claims
that is one the compelling reasons. But before we dissent this particular "compelling
reason," may we know what are the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.) Justice, Mr. Speaker.

MR. LAGMAN. Justice.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman
kindly elaborate on that answer? Why is justice a compelling reason as if justice was
not obtained at the time the Constitution abolished the death penalty? Any
compelling reason should be a supervening circumstances after 1987.

MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one
lives in an organized society governed by law, justice demands that crime be
punished and that the penalty imposed be commensurate with the offense
committed.
 MR. LAGMAN. The Gentleman would agree with me that when the Constitution
speaks of the compelling reasons to justify the reimposition of death penalty, it refers
to reasons which would supervene or come after the approval of the 1987
Constitution. Is he submitting that justice, in his own concept of a commensurate
penalty for the offense committed, was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified it?

MR. GARCIA (P.). That is precisely why we are saying that now, under present
conditions, because of the seriousness of the offenses being committed at this time,
justice demands that the appropriate penalty must be meted out for those who have
committed heinous crimes.

xxx xxx xxx

In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order"
and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify
the revival of state-decreed deaths. In fact, I dare say that these "reasons" were even non-existent.
Statistics from the Philippine National Police show that the crime volume and crime rate particularly
on those legislated capital offenses did not worsen but in fact declined between 1987, the date when
the Constitution took effect, and 1993, the year when RA 7659 was enacted. Witness the following
debate 24 also between Representatives Garcia and Lagman:

MR. LAGMAN. Very good, Mr. Speaker.

Now, can we go to 1987. Could the Gentleman from Cebu inform us the volume of
the crime of murder in 1987?

MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305.

MR. LAGMAN. So, the corresponding crime rate was 21 percent.

MR. GARCIA (P.). Yes, Mr. Speaker.

MR. LAGMAN. That was in 1987, Mr. Speaker, could the distinguished chairman
inform us the volume of murder in 1988?

MR. GARCIA (P.). It was 10,521, Mr. Speaker.

MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988.

Correspondingly, the crime rate in the very year after the abolition of the death
penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker?

MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by
the PC.

MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the
death penalty? May we know from the distinguished Gentleman the volume of
robbery in 1987?

MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it.
 MR. LAGMAN. No, Mr. Speaker, I am asking the question.

MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent.

MR. LAGMAN. This was the year immediately after the abolition of the death penalty.
Could the Gentleman tell us the volume of robbery cases in 1988?

MR. GARCIA (P.). It was 16,926, Mr. Speaker.

MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that the
volume of robbery cases declined from 22,942 in 1987 or crime rate of 40 percent to
16,926 or a crime rate of 29 percent. Would the Gentleman confirm
that, Mr. Speaker?

MR. GARCIA (P.). This is what the statistics say, I understand we are reading now
from the same document.

MR. LAGMAN. Now, going to homicide, the volume 1987 was 12,870 or a crime rate
of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent. Would
the Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.). As I Said, Mr. Speaker, we are reading from the same document
and I would not want to say that the Gentleman is misreading the document that I
have here.

MR. LAGMAN. But would the Gentleman confirm that?

MR. GARCIA (P.). The document speaks for itself.

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on the number of
persons arrested in regard to drug-related offenses in the year 1987 as compared to 1991: 25

Let me cite this concrete statistics by the Dangerous Drug Board.

In 1987 — this was the year when the death penalty was abolished — the persons
arrested in drug-related cases were 3,062, and the figure dropped to 2,686 in 1988.

By the way, I will furnish my Colleagues with a photocopy of this report.

From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It
still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991.

But in 1987, when the death penalty was abolished, as far as the drug-related cases
are concerned, the figure continued a downward trend, and there was no death
penalty in this time from, 1988 to 1991.

In a further attempt to show compelling reasons, the proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have been submitted to show with any
conclusiveness the relationship between the prescription of the death penalty for certain offenses
and the commission or non-commission thereof. This is a theory that can be debated on and on, 27 in
the same manner that another proposition — that the real deterrent to crime is the certainty of
immediate arrest, prosecution and conviction of the culprit without unnecessary risk, expense and
inconvenience to the victim, his heirs or his witnesses — can be argued indefinitely. 28 This debate
can last till the academics grow weary of the spoken word, but it would not lessen the
constitutionally-imposed burden of Congress to act within the "heinousness" and "compelling
reasons" limits of its death-prescribing power.

Other Constitutional Rights

Militate Against RA 7659

It should be emphasized that the constitutional ban against the death penalty is included in our Bill of
Rights. As such, it should — like any other guarantee in favor of the accused — be zealously
protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor
of the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is
not just crimes — but capital crimes!

So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that
"(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary
right of the people to enjoy life — life at its fullest, life in dignity and honor — is not only reiterated by
the 1987 Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence,
the Constitution values the dignity of every human person and guarantees full respect for human
rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death,
emphasizes the individual right to life by giving protection to the life of the mother and the unborn
from the moment of conception 34 and establishes the people's rights to health, a balanced ecology
and education. 35

This Constitutional explosion of concern for man more than property for people more than the state,
and for life more than mere existence augurs well for the strict application of the constitutional limits
against the revival of death penalty as the final and irreversible exaction of society against its
perceived enemies.

Indeed, volumes have been written about individual rights to free speech. assembly and even
religion. But the most basic and most important of these rights is the right to life. Without life, the
other rights cease in their enjoyment, utility and expression.

This opinion would not be complete without a word on the wrenching fact that the death penalty
militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row
Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:

1. Since the reimposition of the death penalty, 186 persons 37 have been sentenced to
death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995,
the number rose to 90; an average of seven (7) convicts per month; double the
monthly average of capital sentences imposed the prior year. From January to June
1996, the number of death penalty convicts reached 72, an average of 12 convicts
per month, almost double the monthly average of capital sentences imposed in 1995.
2. Of the 165 convicts polled, approximately twenty one percent (21%) earn between
P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn
between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are
exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent
(4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to
P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%),
 those earning P15,000 and above only one percent (1%). Approximately thirteen
percent (13%) earn nothing at all, while approximately two percent (2%) earn
subsistence wages with another five percent (5%) earning variable income.
Approximately nine percent (9%) do not know how much they earn in a month.
3. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the
government-mandated minimum monthly wage of P4,290; ten (10) of these earn
below the official poverty line set by government. Twenty six (26) earn between
P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only
one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on
a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of
their monthly income. Twenty two (22) convicts earn nothing at all.
4. In terms of occupation, approximately twenty one percent (21%) are agricultural
workers or workers in animal husbandry; of these thirty (30), or almost one-fifth
thereof, are farmers. Thirty five percent (35%) are in the transport and construction
industry, with thirty one (31) construction workers or workers in allied fields
(carpentry, painting, welding) while twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers.
Eighteen percent (18%) are in clerical, sales and service industries, with fourteen
(14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve
(12) service workers (butchers, beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians) and four (4) clerks (janitors,
MERALCO employee and clerk) About four percent (4%) are government workers,
with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and executives comprise only three percent
(3%), nine percent (9%) are unemployed.
5. None of the DRC's use English as their medium of communication. About forty four
percent (44%), or slightly less than half speak and understand Tagalog; twenty six
percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak
and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and
Waray. One (1) convict is a foreign national and speaks and understand Niponggo.
6. Approximately twelve percent (12%) graduated from college, about forty seven
percent (47%) finished varying levels of elementary education with twenty seven (27)
graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts,
finished varying levels of high school, with more than half of them graduating from
high school. Two (2) convicts finished vocational education; nine (9) convicts did not
study at all.

The foregoing profile based on age, language and socio-economic situations sufficiently
demonstrates that RA 7659 has militated against the poor and the powerless in society — those who
cannot afford the legal services necessary in capital crimes, where extensive preparation,
investigation, research and presentation are required. The best example to shoe the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in
the proceedings in the trial court and even before this Court until the Free legal Assistance Group
belatedly brought it up in the Supplemental Motion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex and written in a strange,
incomprehensible language. Worse still, judicial proceedings are themselves complicated,
intimidating and damning. The net effect of having a death penalty that is imposed more often than
not upon the impecunious is to engender in the minds of the latter, a sense — unfounded, to be
sure, but unhealthy nevertheless — of the unequal balance of the scales of justice.

Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-
economic profile of the DRCs, the law reviving capital punishment does not in any way single out or
discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far
as the disadvantaged are concerned, the law would still be complex and written in a strange and
incomprehensible language, and judicial proceedings complicated and intimidating, whether the
ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that,
whatever the penalties set by law, it seems to me that there will always be certain class or classes of
people in our society who, by reason of their poverty, lack of educational attainment and
employment opportunities, are consequently confined to living, working and subsisting in less-than-
ideal environments, amidst less-than-genteel neighbors similarly situated as themselves, and are
therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and
crime. So from that perspective, the law reviving the death penalty neither improves nor worsens
their lot substantially. Or, to be more precise, such law may even be said to help improve their
situation (at least in theory) by posing a much stronger deterrent to the commission of heinous
crimes.

However, such a viewpoint simply ignores the very basic differences that exist in the situations of the
poor and the non-poor. Precisely because the underprivileged are what they are, they require and
deserve a greater degree of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be empowered to rise above
themselves and their situation. The basic postulates for such a position are, I think, simply that
everyone ultimately wants to better himself and that we cannot better ourselves individually to any
significant degree if we are unable to advance as an entire people and nation. All the pro-poor
provisions of the Constitution point in this direction. Yet we are faced with this law that effectively
inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater
majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases
all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and
constitutional firmament.

Epilogue

In sum, I respectfully submit that:

1. The 1987 Constitution abolished the death penalty from our statute books. It did not merely
suspend or prohibit its imposition.
2. The Charter effectively granted a new right: the constitution right against the death penalty,
which is really a species of the right to life.
3. Any law reviving the capital penalty must be strictly construed against the State and liberally
in favor of the accused because such a stature denigrates the Constitution, impinges on a
basic right and tends to deny equal justice to the underprivileged.
4. Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly-
treated or brushed aside.
5. Congressional power death is severely limited by two concurrent requirements:

a. First, Congress must provide a set of attendant circumstances which the prosecution
must prove beyond reasonable doubt, apart from the elements of the crime and itself.
Congress must explain why and how these circumstances define or characterize the
crime as "heinous".

Second, Congress has also the duty of laying out clear and specific reasons which arose after the
effectivity of the Constitution compelling the enactment of the law. It bears repeating that these
requirements are inseparable. They must both be present in view of the specific constitutional
mandate — "for compelling reasons involving heinous crimes." The compelling reason must flow
from the heinous nature of the offense.

1. In every law reviving the capital penalty, the heinousness and compelling reasons must be
set out for each and every crime, and not just for all crimes generally and collectively.

"Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the
vast majority of our people belong, acknowledges the power of public authorities to prescribe the
death penalty, it advisedly limits such prerogative only to "cases of extreme
gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to
Life), 40 "punishment must be carefully evaluated and decided upon, and ought not to go to the
extreme of executing the offender except in cases of absolute necessity: in other words, when it
would not be possible otherwise to defend society . . . (which is) very rare, if not practically non-
existent."

Although not absolutely banning it, both the Constitution and the Church indubitably abhor the death
penalty. Both are pro-people and pro-life. Both clearly recognize the primacy of human life over and
above even the state which man created precisely to protect, cherish and defend him. The
Constitution reluctantly allows capital punishment only for "compelling reasons involving heinous
crimes" just as the Church grudgingly permits it only reasons of "absolute necessity" involving crimes
of "extreme gravity", which are very rare and practically non-existent.

In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply
discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe
death against well-defined "heinous" crimes?

I respectfully submit it has not.

WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental
Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by
deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion
perpetua.

I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the
crimes mentioned in its text.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-38429 June 30, 1988

CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL, petitioners-appellants,

vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY, Branch 11, and
the CITY OF BUTUAN, respondents-appellees.

Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.
The City Legal Officer for respondents-appeliees.

GANCAYCO, J.:

At issue in the petition for review before Us is the validity and constitutionality of Ordinance No. 640 passed by the Municipal Board of the
City of Butuan on April 21, 1969, the title and text of which are reproduced below:

ORDINANCE--640

ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY OR

CORPORATION ENGAGED IN THE BUSINESS OF SELLING ADMISSION
TICKETS TO ANY MOVIE OR OTHER PUBLIC EXHIBITIONS, GAMES,
CONTESTS OR OTHER PERFORMANCES TO REQUIRE CHILDREN BETWEEN
SEVEN (7) AND TWELVE (12) YEARS OF AGE TO PAY FULL PAYMENT FOR
TICKETS INTENDED FOR ADULTS BUT SHOULD CHARGE ONLY ONE-HALF OF
THE SAID TICKET

xxx xxx xxx

Be it ordained by the Municipal Board of the City of Butuan in session assembled,

that:

SECTION 1—It shall be unlawful for any person, group of persons, entity, or
corporation engaged in the business of selling admission tickets to any movie or
other public exhibitions, games, contests, or other performances to require children
between seven (7) and twelve (12) years of age to pay full payment for admission
tickets intended for adults but should charge only one-half of the value of the said
tickets.

SECTION 2—Any person violating the provisions of this Ordinance shall upon
conviction be punished by a fine of not less than TWO HUNDRED PESOS (P200.00)
but not more than SIX HUNDRED PESOS (P600.00) or an imprisonment of not less
than TWO (2) MONTHS or not more than SIX (6) MONTHS or both such firm and
imprisonment in the discretion of the Court.

If the violator be a firm or corporation the penalty shall be imposed upon the
Manager, Agent or Representative of such firm or corporation.

SECTION 3—This ordinance shall take effect upon its approval.

Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of the Maya and
Dalisay Theaters, the Crown Theater, and the Diamond Theater, respectively. Aggrieved by the
effect of Ordinance No. 640, they filed a complaint before the Court of First Instance of Agusan del
Norte and Butuan City docketed as Special Civil Case No. 237 on June 30, 1969 praying, inter alia,
that the subject ordinance be declared unconstitutional and, therefore, void and unenforceable. 1

Upon motion of the petitioners, 2 a temporary restraining order was issued on July 14, 1969 by the
court a quo enjoining the respondent City of Butuan and its officials from enforcing Ordinance No.
640. 3 On July 29, 1969, respondents filed their answer sustaining the validity of the ordinance.4
On January 30, 1973, the litigants filed their stipulation of facts. 5 On June 4, 1973, the respondent
court rendered its decision, 6 the dispositive part of which reads:

IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in favor of the
respondents and against the petitioners, as follows:

1. Declaring Ordinance No. 640 of the City of Butuan constitutional and valid:
Provided, however, that the fine for a single offense shall not exceed TWO
HUNDRED PESOS, as prescribed in the aforequoted Section 15 (nn) of Rep. Act
No. 523;

2. Dissolving the restraining order issued by this Court; and;

3. Dismissing the complaint, with costs against the petitioners.

4. SO ORDERED. 7

Petitioners filed their motion for reconsideration 8 of the decision of the court a quo which was denied
in a resolution of the said court dated November 10, 1973.9

Hence, this petition.

Petitioners attack the validity and constitutionality of Ordinance No. 640 on the grounds that it is ultra
vires and an invalid exercise of police power.

Petitioners contend that Ordinance No. 640 is not within the power of' the Municipal Board to enact
as provided for in Section 15(n) of Republic Act No. 523, the Charter of the City of Butuan, which
states:

Sec. 15. General powers and duties of the Board — Except as otherwise provided by
law, and subject to the conditions and limitations thereof, the Municipal Board shall
have the following legislative powers:

xxx xxx xxx

(n) To regulate and fix the amount of the license fees for the following; . . . theaters,
theatrical performances, cinematographs, public exhibitions and all other
performances and places of amusements ...

xxx xxx xxx

Respondent City of Butuan, on the other hand, attempts to justify the enactment of the ordinance by
invoking the general welfare clause embodied in Section 15 (nn) of the cited law, which provides:

(nn) To enact all ordinances it may deem necessary and proper for the sanitation and
safety, the furtherance of the prosperity, and the promotion of the morality, peace,
good order, comfort, convenience, and general welfare of the city and its inhabitants,
and such others as may be necessary to carry into effect and discharge the powers
and duties conferred by this Act, and to fix the penalties for the violation of the
ordinances, which shall not exceed a two hundred peso fine or six months
imprisonment, or both such fine and imprisonment, for a single offense.
We can see from the aforecited Section 15(n) that the power to regulate and fix the amount of
license fees for theaters, theatrical performances, cinematographs, public exhibitions and other
places of amusement has been expressly granted to the City of Butuan under its charter. But the
question which needs to be resolved is this: does this power to regulate include the authority to
interfere in the fixing of prices of admission to these places of exhibition and amusement whether
under its general grant of power or under the general welfare clause as invoked by the City?

This is the first time this Court is confronted with the question of direct interference by the local
government with the operation of theaters, cinematographs and the like to the extent of fixing the
prices of admission to these places. Previous decisions of this Court involved the power to impose
license fees upon businesses of this nature as a corollary to the power of the local government to
regulate them. Ordinances which required moviehouses or theaters to increase the price of their
admission tickets supposedly to cover the license fees have been held to be invalid for these
impositions were considered as not merely license fees but taxes for purposes of revenue and not
regulation which the cities have no power to exact, 10 unless expressly granted by its charter. 11

Applying the ruling in Kwong Sing v. City of Manila, 12 where the word "regulate" was interpreted to
include the power to control, to govern and to restrain, it would seem that under its power to regulate
places of exhibitions and amusement, the Municipal Board of the City of Butuan could make proper
police regulations as to the mode in which the business shall be exercised.

While in a New York case, 13 an ordinance which regulates the business of selling admission tickets
to public exhibitions or performances by virtue of the power of cities under the General City Law "to
maintain order, enforce the laws, protect property and preserve and care for the safety, health,
comfort and general welfare of the inhabitants of the city and visitors thereto; and for any of said
purposes, to regulate and license occupations" was considered not to be within the scope of any
duty or power implied in the charter. It was held therein that the power of regulation of public
exhibitions and places of amusement within the city granted by the charter does not carry with it any
authority to interfere with the price of admission to such places or the resale of tickets or tokens of
admission.

In this jurisdiction, it is already settled that the operation of theaters, cinematographs and other
places of public exhibition are subject to regulation by the municipal council in the exercise of
delegated police power by the local government. 14 Thus, in People v. Chan, 15 an ordinance of the
City of Manila prohibiting first run cinematographs from selling tickets beyond their seating capacity
was upheld as constitutional for being a valid exercise of police power. Still in another case, 16 the
validity of an ordinance of the City of Bacolod prohibiting admission of two or more persons in
moviehouses and other amusement places with the use of only one ticket was sustained as a valid
regulatory police measure not only in the interest of preventing fraud in so far as municipal taxes are
concerned but also in accordance with public health, public safety, and the general welfare.

The City of Butuan, apparently realizing that it has no authority to enact the ordinance in question
under its power to regulate embodied in Section 15(n), now invokes the police power as delegated to
it under the general welfare clause to justify the enactment of said ordinance.

To invoke the exercise of police power, not only must it appear that the interest of the public
generally requires an interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. 17 The
legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private
business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words,
the determination as to what is a proper exercise of its police power is not final or conclusive, but is
subject to the supervision of the courts. 18
Petitioners maintain that Ordinance No. 640 violates the due process clause of the Constitution for
being oppressive, unfair, unjust, confiscatory, and an undue restraint of trade, and violative of the
right of persons to enter into contracts, considering that the theater owners are bound under a
contract with the film owners for just admission prices for general admission, balcony and lodge.

In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of Manila, 19 this
Court held:

The authority of municipal corporations to regulate is essentially police power,

Inasmuch as the same generally entails a curtailment of the liberty, the rights and/or
the property of persons, which are protected and even guaranteed by the
Constitution, the exercise of police power is necessarily subject to a qualification,
limitation or restriction demanded by the regard, the respect and the obedience due
to the prescriptions of the fundamental law, particularly those forming part of the
Constitution of Liberty, otherwise known as the Bill of Rights — the police power
measure must be reasonable. In other words, individual rights may be adversely
affected by the exercise of police power to the extent only — and only to the extent--
that may be fairly required by the legitimate demands of public interest or public
welfare.

What is the reason behind the enactment of Ordinance No. 640?

A reading of the minutes of the regular session of the Municipal Board when the ordinance in
question was passed shows that a certain Councilor Calo, the proponent of the measure, had taken
into account the complaints of parents that for them to pay the full price of admission for their
children is too financially burdensome.

The trial court advances the view that "even if the subject ordinance does not spell out its raison
d'etre in all probability the respondents were impelled by the awareness that children are entitled to
share in the joys of their elders, but that considering that, apart from size, children between the ages
of seven and twelve cannot fully grasp the nuance of movies or other public exhibitions, games,
contests or other performances, the admission prices with respect to them ought to be reduced. 19a

We must bear in mind that there must be public necessity which demands the adoption of proper
measures to secure the ends sought to be attained by the enactment of the ordinance, and the large
discretion is necessarily vested in the legislative authority to determine not only what the interests of
the public require, but what measures are necessary for the protection of such interests. 20 The
methods or means used to protect the public health, morals, safety or welfare, must have some
relation to the end in view, for under the guise of the police power, personal rights and those
pertaining to private property will not be permitted to be arbitralily invaded by the legislative
department. 21

We agree with petitioners that the ordinance is not justified by any necessity for the public interest.
The police power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means.22 The evident purpose of the ordinance
is to help ease the burden of cost on the part of parents who have to shell out the same amount of
money for the admission of their children, as they would for themselves, A reduction in the price of
admission would mean corresponding savings for the parents; however, the petitioners are the ones
made to bear the cost of these savings. The ordinance does not only make the petitioners suffer the
loss of earnings but it likewise penalizes them for failure to comply with it. Furthermore, as
petitioners point out, there will be difficulty in its implementation because as already experienced by
petitioners since the effectivity of the ordinance, children over 12 years of age tried to pass off their
age as below 12 years in order to avail of the benefit of the ordinance. The ordinance does not
provide a safeguard against this undesirable practice and as such, the respondent City of Butuan
now suggests that birth certificates be exhibited by movie house patrons to prove the age of
children. This is, however, not at all practicable. We can see that the ordinance is clearly
unreasonable if not unduly oppressive upon the business of petitioners. Moreover, there is no
discernible relation between the ordinance and the promotion of public health, safety, morals and the
general welfare.

Respondent City of Butuan claims that it was impelled to protect the youth from the pernicious
practice of movie operators and other public exhibitions promoters or the like of demanding equal
price for their admission tickets along with the adults. This practice is allegedly repugnant and
unconscionable to the interest of the City in the furtherance of the prosperity, peace, good order,
comfort, convenience and the general well-being of its inhabitants.

There is nothing pernicious in demanding equal price for both children and adults. The petitioners
are merely conducting their legitimate businesses. The object of every business entrepreneur is to
make a profit out of his venture. There is nothing immoral or injurious in charging the same price for
both children and adults. In fact, no person is under compulsion to purchase a ticket. It is a totally
voluntary act on the part of the purchaser if he buys a ticket to such performances.

Respondent City of Butuan claims that Ordinance No. 640 is reasonable and necessary to lessen
the economic burden of parents whose minor children are lured by the attractive nuisance being
maintained by the petitioners. Respondent further alleges that by charging the full price, the children
are being exploited by movie house operators. We fail to see how the children are exploited if they
pay the full price of admission. They are treated with the same quality of entertainment as the adults.
The supposition of the trial court that because of their age children cannot fully grasp the nuances of
such entertainment as adults do fails to convince Us that the reduction in admission ticket price is
justifiable. In fact, by the very claim of respondent that movies and the like are attractive nuisances,
it is difficult to comprehend why the municipal board passed the subject ordinance. How can the
municipal authorities consider the movies an attractive nuisance and yet encourage parents and
children to patronize them by lowering the price of admission for children? Perhaps, there is some
,truth to the argument of petitioners that Ordinance No. 640 is detrimental to the public good and the
general welfare of society for it encourages children of tender age to frequent the movies, rather
than attend to their studies in school or be in their homes.

Moreover, as a logical consequence of the ordinance, movie house and theater operators will be
discouraged from exhibiting wholesome movies for general patronage, much less children's pictures
if only to avoid compliance with the ordinance and still earn profits for themselves. For after all, these
movie house and theater operators cannot be compelled to exhibit any particular kind of film except
those films which may be dictated by public demand and those which are restricted by censorship
laws. So instead of children being able to share in the joys of their elders as envisioned by the trial
court, there will be a dearth of wholesome and educational movies for them to enjoy.

There are a number of cases decided by the Supreme Court and the various state courts of the
United States which upheld the right of the proprietor of a theater to fix the price of an admission
ticket as against the right of the state to interfere in this regard and which We consider applicable to
the case at bar.

A theater ticket has been described to be either a mere license, revocable at the will of the proprietor
of the theater or it may be evidence of a contract whereby, for a valuable consideration, the
purchaser has acquired the right to enter the theater and observe the performance on condition that
he behaves properly. 23 Such ticket, therefore, represents a right, Positive or conditional, as the case
may be, according to the terms of the original contract of sale. This right is clearly a right of property.
The ticket which represents that right is also, necessarily, a species of property. As such, the owner
thereof, in the absence of any condition to the contrary in the contract by which he obtained it, has
the clear right to dispose of it, to sell it to whom he pleases and at such price as he can obtain. 24 So
that an act prohibiting the sale of tickets to theaters or other places of amusement at more than the
regular price was held invalid as conflicting with the state constitution securing the right of property. 25

In Collister vs. Hayman, 26 it was held:

The defendants were conducting a private business, which, even if clothed with a
public interest, was without a franchise to accommodate the public, and they had the
right to control it, the same as the proprietors of any other business, subject to such
obligations as were placed upon them by statute. Unlike a carrier of passengers, for
instance, with a franchise from the state, and hence under obligation to transport
anyone who applies and to continue the business year in and year out, the
proprietors of a theater can open and close their place at will, and no one can make
a lawful complaint. They can charge what they choose for admission to their theater.
They can limit the number admitted. They can refuse to sell tickets and collect the
price of admission at the door. They can preserve order and enforce quiet while the
performance is going on. They can make it a part of the contract and condition of
admission, by giving due notice and printing the condition in the ticket that no one
shall be admitted under 21 years of age, or that men only or women only shall be
admitted, or that a woman cannot enter unless she is accompanied by a male escort,
and the like. The proprietors, in the control of their business, may regulate the terms
of admission in any reasonable way. If those terms are not satisfactory, no one is
obliged to buy a ticket or make the contract. If the terms are satisfactory, and the
contract is made, the minds of the parties meet upon the condition, and the
purchaser impliedly promises to perform it.

In Tyson and Bro. — United Theater Ticket Officers, Inc. vs. Banton, 27 the United States Supreme
Court held:

... And certainly a place of entertainment is in no legal sense a public utility; and quite
as certainly, its activities are not such that their enjoyment can be regarded under
any conditions from the point of view of an emergency.

The interest of the public in theaters and other places of entertainment may be more
nearly, and with better reason, assimilated to the like interest in provision stores and
markets and in the rental of houses and apartments for residence purposes; although
in importance it fails below such an interest in the proportion that food and shelter are
of more moment than amusement or instruction. As we have shown there is no
legislative power to fix the prices of provisions or clothing, or the rental charges for
houses and apartments, in the absence of some controlling emergency; and we are
unable to perceive any dissimilarities of such quality or degree as to justify a different
rule in respect of amusements and entertainment ...

We are in consonance with the foregoing observations and conclusions of American courts. In this
jurisdiction, legislation had been passed controlling the prices of goods commodities and drugs
during periods of emergency, 28limiting the net profits of public utility 29 as well as regulating rentals of
residential apartments for a limited period, 30as a matter of national policy in the interest of public
health and safety, economic security and the general welfare of the people. And these laws cannot
be impugned as unconstitutional for being violative of the due process clause.
However, the same could not be said of theaters, cinematographs and other exhibitions. In no sense
could these businesses be considered public utilities. The State has not found it appropriate as a
national policy to interfere with the admission prices to these performances. This does not mean
however, that theaters and exhibitions are not affected with public interest even to a certain degree.
Motion pictures have been considered important both as a medium for the communication of Ideas
and expression of the artistic impulse. Their effects on the perceptions by our people of issues and
public officials or public figures as well as the prevailing cultural traits are considerable. 31People of
all ages flock to movie houses, games and other public exhibitions for recreation and relaxation. The
government realizing their importance has seen it fit to enact censorship laws to regulate the movie
industry. 32 Their aesthetic entertainment and even educational values cannot be underestimated.
Even police measures regulating the operation of these businesses have been upheld in order to
safeguard public health and safety.

Nonetheless, as to the question of the subject ordinance being a valid exercise of police power, the
same must be resolved in the negative. While it is true that a business may be regulated, it is equally
true that such regulation must be within the bounds of reason, that is, the regulatory ordinance must
be reasonable, and its provisions cannot be oppressive amounting to an arbitrary interference with
the business or calling subject of regulation. A lawful business or calling may not, under the guise of
regulation, be unreasonably interfered with even by the exercise of police power.33 A police measure
for the regulation of the conduct, control and operation of a business should not encroach upon the
legitimate and lawful exercise by the citizens of their property rights.34 The right of the owner to fix a
price at which his property shall be sold or used is an inherent attribute of the property itself and, as
such, within the protection of the due process clause."" Hence, the proprietors of a theater have a
right to manage their property in their own way, to fix what prices of admission they think most for
their own advantage, and that any person who did not approve could stay away. 36

Respondent City of Butuan argues that the presumption is always in favor of the validity of the
ordinance. This maybe the rule but it has already been held that although the presumption is always
in favor of the validity or reasonableness of the ordinance, such presumption must nevertheless be
set aside when the invalidity or unreasonableness appears on the face of the ordinance itself or is
established by proper evidence.37 The exercise of police power by the local government is valid
unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is
against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a
common right.38

Ordinance No. 640 clearly invades the personal and property rights of petitioners for even if We
could assume that, on its face, the interference was reasonable, from the foregoing considerations, it
has been fully shown that it is an unwarranted and unlawful curtailment of the property and personal
rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, under the guise
of exercising police power, be upheld as valid.

WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby REVERSED
and SET ASIDE and a new judgment is hereby rendered declaring Ordinance No. 640
unconstitutional and, therefore, null and void. This decision is immediately executory.

SO ORDERED.

Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Griño-Aquino, JJ., concur.
Separate Opinions

GUTIERREZ, JR., J., Separate opinion

The issue before the Court is a simple one. Does Butuan City have the power to compel theatre
owners to charge only half fares for children below twelve even as they charge all other moviegoers
full prices for admission into moviehouses?

Instead of nullifying the municipal ordinance through a broad and sweeping justification of property
rights, I believe, however, that we should do so on a more limited ground directly bearing on the
issue.

I find no rational basis for classifying children as a distinct group insofar as paying for admission into
a moviehouse is concerned. There is absolutely no pretense that the municipal ordinance is
intended to protect children, enhance their morals, promote their health, safeguard their safety,
improve their education, or otherwise promote the general welfare. In fact, the effect of the ordinance
may be the opposite.

With the price of movie tickets suddenly within the reach of many children, they may neglect their
studies or use money intended for food or school supplies to enter moviehouses. Movie owners who
are compelled to accept half prices for a newly increased group of young patrons will be tempted to
allow them to enter moviehouses indiscriminately, including those where scenes of violence, crime,
or even sex are portrayed. Addiction of the young to movie going is definitely injurious to their health.

The avowed purpose of the ordinance--to ease the burden of costs for parents who have to shell out
the same amount of money for the admission of their children as they would for themselves — is not
covered by police power. If the city cannot compel refreshment parlors to charge half-prices for
hamburgers, soft drinks, pizzas, or cakes consumed by children by what authority can it impose the
obligation of similarly easing parents' burdens upon the owners of moviehouses?

As discussed by the minority opinion, the legislature may not., under the guise of protecting the
public interest, arbitrarily interfere with private business, or impose unusual and unnecessary
restrictions upon lawful occupations. The imposition enacted by the municipal board of Butuan City
has not been justified by its proponents as a restriction necessary for public health or public welfare.
No reasonable relationship has been shown between a valid purpose and the proper means to
accomplish it.

I hesitate, however, to make a brief for owners of theatres and expound a laissez faire approach
insofar as their businesses are concerned. Movie houses may not be public utilities but as places of
entertainment affected with a certain degree of public interest, they are subject to reasonable
regulation. That regulation is stronger and more restrictive than that of regular or ordinary
businesses.

The following citation for instance, is pure obiter insofar as half-prices for minors are concerned:

... [T]he proprietors of a theater can open and close their place at will, and no one
can make lawful complaint. They can charge what they choose for admission to their
theater. They can limit the number admitted. They can refuse to sell tickets and
collect the price of admission at the door. They can preserve order and enforce quiet
 while the performance is going on. They can make it a part of the contract and a
condition of admission, by giving due notice and printing the condition in the ticket
that no one shall be admitted under 21 years of age, or that men only or women only
shall be admitted, or that a woman cannot enter unless she is accompanied by a
male escort, and the like. The proprietors, in the control of their business, may
regulate the terms of admission in any reasonable way. If those terms are not
satisfactory, no one is obliged to buy a ticket or make the contract. If the terms are
satisfactory, and the contract is made, the minds of the parties meet upon the
condition, and the purchaser impliedly promises to perform it. (Collister v. Hayman,
76 N.E. 20,183 N.Y. 250, 253, 1 L.R.A. [N.S.] 1188, 11 Am. St. Rep. 740, An Cas.
344).

I see no reason at this time why we should pass upon situations that are not before us or warn
municipal governments beforehand to avoid enacting certain regulations when nobody knows
exactly what circumstances may call for those regulations.

For instance,

A theater ticket has been described to be either a mere license, revocable at the will
of the proprietor of the theater or it may be evidence of a contract whereby, for a
valuable consideration, the purchaser has acquired the right to enter the theater and
observe the performance on condition that he behaves properly (Law of the State.

Screen and Radio by Marchetti, 1939, ec., page 268). Such ticket, therefore,
represents a right, positive or conditional, as the case may be, according to the terms
of the original contract of sale. This right is clearly a right of property. The ticket
which represents that right is also, necessarily, a species of property. As such, the
owner thereof, in the absence of any condition to the contrary y in the contract by
which he obtained it, has the clear right to dispose of it, to sell it to whom he pleases
and at such price as he can obtain Ibids, citing Ex-parte Quarg, 84 Pac., 766,149
Cal. 79, 80, 5 L.R.A. [N.S], 183, 117 Am. St. Rep. 11 5, 9 Ann. Ca. 747; Also People
v. Steele, 231, III. 340, 344, 14 R.A. [N.S.] 361, 121 Am. St. Rep. 321, 83 N.E. 236).
....

xxx xxx xxx

.... A lawful business or calling may not, under the guise of regulation, be
unreasonably interfered with even by the exercise of police power. (Ogden City v.
Leo, 54 Utah 556, 182 P. 530) A police measure for the regulation of the conduct,
control and operation of a business should not encroach upon the legitimate and
lawful exercise by the citizens of their property rights (Pampanga Bus Co., Inc. v.
Municipality of Tarlac, 3 SCRA 816). The right of the owner to fix a price at which his
property shall be sold or used is an inherent attribute of the property itself and, as
such, within the protection of the due process clause (Tyson and Bro.--United
Theater Ticket Officers, Inc. v. Banton, supra). Hence the proprietors of a theater
have a right to manage their property in their own way, to fix what prices of
admission they think most for their own advantage, and that ally person who did not
approve could stay away (Ibid, citing v. Clifford v. Brandon, 2 Campb. 358, 368.).

may be interpreted as carte blanche for movie owners to practically ignore municipal regulation and
do as they please.
More appropriate to my maid is to state that while tile Butuan City ordinance is invalid, it does not
necessarily follow that all forms of regulation are proscribed.

We have ruled in People v. Chan (65 Phil. 612):

In the first place, it must be noted that there can be no doubt that the City of Manila
exercises police power, by delegation and that in the exercise of that power it is
authorized to enact ordinances for, the regulation of the operation of theatres and
cinematographs (sec. 2444(m) and (ee) of the Revised Administrative Code: U.S. v.
Gomez Jesus, 31 Phil. 218; U.S. v. Pompeya, 31 Phil. 245).

On April 17, 1935, Ordinance No. 2347 was approved. In section 1 it provides that all
first run theatres or cinematographs should register their seating capacity with the
City Treasurer, and in section 1 it prohibits the sale of tickets in said theatres or
cinematographs in excess of their registered seating capacity.

Before the approval of Ordinance No. 2347, Ordinance No. 2188, approved on July
22, 1933, was in force, section 1 of which divides cinematographs into three different
classes: first, second and third. The first class includes those located on certain and
specified streets like Rosario, Escolta, etc., which exhibit films for the first time; those
belonging to the second class are those which, not being located on said streets,
also exhibit films for the first time, and those which, being located on said streets,
regularly show films for the second time or which have the exclusive right to show
secondhand films; and the third class comprehends all those which are not included
in the first and second classes.

xxx xxx xxx

To the foregoing must be added, and this is of common knowledge, that the films
which are shown for the first time attract a large attendance, and the theatre or
cinematograph, whether it is first or second class, presenting shows for the first time,
would be suffocatingly overcrowded if the number of tickets were not limited. This is
the reason for the prohibition of the sale of tickets in excess of the seating capacity.
The prohibition applies with equal force wherever the same reason exists, that is, to
first and second class theatres which show films for the first time. (at pp. 612- 613)

There being a rational basis for the restriction of sales of tickets beyond seating capacity, the
ordinance is perfectly valid.

The same is true for the situation found in Samson v. Mayor of Bacolod City (60 SCRA 274):

When it is further remembered that insofar as movie houses and other places of
amusement are concerned. (According to Section 17[1] of the City Charter of
Bacolod, Commonwealth Act No. 326 119381: 'To regulate and fix the amount of the
fees for the following: ... theatres, theatrical performances, cinematographs, public
exhibitions, circuses and all other performances and places of amusements ....") the
least doubt cannot be entertained as to the validity of a measure prohibiting a
proprietor, lessee or operator of an amusement place to admit two or more persons
with only one admission ticket, not only in the interest of preventing fraud insofar as
municipal taxes are concerned but also in accordance with public health, public
safety and the general welfare. (Cf. People v. Chan, 65 Phil. 611 [1938]). An
American Supreme Court decision, Western Turf Association v. Greenberg, (204 US
 359 [1907] the opinion being penned by Justice Harlan is equally illuminating: 'The
statute is only a regulation of places of public entertainment and amusement upon
terms of equal and exact justice to everyone holding a ticket of admission, and who
is not, at the time, under the influence of liquor, or boisterous in conduct, or of lewd
and immoral character. .... Such a regulation, in itself just, is likewise promotive of
peace and good order among those who attend places of public entertainment and
amusement. It is neither an arbitrary exertion of the state's inherent or governmental
power, nor a violation of any right secured by the constitution of the United States. (at
pp. 363-364).

The City of Butuan tries to justify the challenged ordinance by invoking police power. The invocation
is improper. The definitions of police power, including its exercise based on the general welfare
clause, are emphasized to show that the respondents' arguments have no merit —

Police power is inherent in the State but not in municipal corporations. For a
municipal corporation to exercise police power, there must be a legislative grant
which necessarily also sets the limits for the exercise of the power.

In the Philippines, the grant of authority to the municipality to exercise police power is
embodied in Section 2238 of the Revised Administrative Code, otherwise known as
the General Welfare Clause. Chartered cities are granted similar authority in their
respective charters

The general welfare clause has two branches. The first authorizes the municipal
council to enact such ordinances and make such regulations not repugnant to law, as
may be necessary to carry into effect and discharge the powers and duties conferred
upon the municipal council by law. The second branch authorizes the municipality to
enact such ordinances as may be necessary and proper for the health and safety,
promote the prosperity, improve the morals, peace, good order, comfort, and
convenience of the municipality and inhabitants thereof, and for the protection of
property therein. (U.S. v. Salaveria 39 Phil. 103).

This Court has generally been liberal in sustaining municipal action based on the general welfare
clause. In the case before us, however, there appears to be no basis for sustaining the ordinance
even on a generous interpretation of the general welfare clause.

EN BANC

G.R. No. 118127 April 12, 2005

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON. JOSELITO
L. ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding Officer of the
City Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P. GONZALES, HON.
AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO, HON. ALBERTO DOMINGO, HON.
HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO S. MARANAN,
HON. NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO, HON. FLAVIANO F.
CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE
JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN, HON. JHOSEP Y. LOPEZ, HON.
CHIKA G. GO, HON. VICTORIANO A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON.
ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA.
PAZ E. HERRERA, HON. JOEY D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q.
BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON. MA. CORAZON
R. CABALLES, HON. CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE, JR., HON. MA.
LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA, HON.
LEONARDO L. ANGAT, and HON. JOCELYN B. DAWIS, in their capacity as councilors of the
City of Manila,Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, Respondents.

DECISION

TINGA, J.:

I know only that what is moral is what you feel good after and what is immoral is what you
feel bad after.

Ernest Hermingway
Death in the Afternoon, Ch. 1

It is a moral and political axiom that any dishonorable act, if performed by oneself, is less
immoral than if performed by someone else, who would be well-intentioned in his dishonesty.

J. Christopher Gerald
Bonaparte in Egypt, Ch. I

The Court's commitment to the protection of morals is secondary to its fealty to the fundamental law
of the land. It is foremost a guardian of the Constitution but not the conscience of individuals. And if it
need be, the Court will not hesitate to "make the hammer fall, and heavily" in the words of Justice
Laurel, and uphold the constitutional guarantees when faced with laws that, though not lacking in
zeal to promote morality, nevertheless fail to pass the test of constitutionality.

The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules on Civil
Procedure seeking the reversal of the Decision2 in Civil Case No. 93-66511 of the Regional Trial
Court (RTC) of Manila, Branch 18 (lower court),3 is the validity of Ordinance No. 7783
(the Ordinance) of the City of Manila.4

The antecedents are as follows:

Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged in the
business of operating hotels, motels, hostels and lodging houses.5 It built and opened Victoria Court
in Malate which was licensed as a motel although duly accredited with the Department of Tourism as
a hotel.6 On 28 June 1993, MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of
Preliminary Injunction and/or Temporary Restraining Order7 (RTC Petition) with the lower court
impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim), Hon. Joselito
L. Atienza, and the members of the City Council of Manila (City Council). MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be
declared invalid and unconstitutional.8

Enacted by the City Council9 on 9 March 1993 and approved by petitioner City Mayor on 30 March
1993, the said Ordinance is entitled–
 AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF
BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT,
SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING
PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.10

The Ordinance is reproduced in full, hereunder:

SECTION 1. Any provision of existing laws and ordinances to the contrary

notwithstanding, no person, partnership, corporation or entity shall, in the Ermita-
Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East,
Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be
allowed or authorized to contract and engage in, any business providing certain forms
of amusement, entertainment, services and facilities where women are used as tools
in entertainment and which tend to disturb the community, annoy the inhabitants, and
adversely affect the social and moral welfare of the community, such as but not limited
to:

1. Sauna Parlors

2. Massage Parlors

3. Karaoke Bars

4. Beerhouses

5. Night Clubs

6. Day Clubs

7. Super Clubs

8. Discotheques

9. Cabarets

10. Dance Halls

11. Motels

12. Inns

SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said
officials are prohibited from issuing permits, temporary or otherwise, or from granting
licenses and accepting payments for the operation of business enumerated in the
preceding section.

SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are hereby given three (3) months from the
date of approval of this ordinance within which to wind up business operations or to
transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area, such as but not limited to:
 1. Curio or antique shop

2. Souvenir Shops

3. Handicrafts display centers

4. Art galleries

5. Records and music shops

6. Restaurants

7. Coffee shops

8. Flower shops

9. Music lounge and sing-along restaurants, with well-defined activities for

wholesome family entertainment that cater to both local and foreign clientele.

10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural
shows, stage and theatrical plays, art exhibitions, concerts and the like.

11. Businesses allowable within the law and medium intensity districts as provided
for in the zoning ordinances for Metropolitan Manila, except new warehouse or open-
storage depot, dock or yard, motor repair shop, gasoline service station, light industry
with any machinery, or funeral establishments.

SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction,
be punished by imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00)
PESOS, or both, at the discretion of the Court, PROVIDED, that in case of juridical person,
the President, the General Manager, or person-in-charge of operation shall be liable thereof;
PROVIDED FURTHER, that in case of subsequent violation and conviction, the
premises of the erring establishment shall be closed and padlocked permanently.

SEC. 5. This ordinance shall take effect upon approval.

Enacted by the City Council of Manila at its regular session today, March 9, 1993.

Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)

In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in its
enumeration of prohibited establishments, motels and inns such as MTDC's Victoria Court
considering that these were not establishments for "amusement" or "entertainment" and they were
not "services or facilities for entertainment," nor did they use women as "tools for entertainment," and
neither did they "disturb the community," "annoy the inhabitants" or "adversely affect the social and
moral welfare of the community."11

MTDC further advanced that the Ordinance was invalid and unconstitutional for the following
reasons: (1) The City Council has no power to prohibit the operation of motels as Section 458 (a) 4
(iv)12 of the Local Government Code of 1991 (the Code) grants to the City Council only the power to
regulate the establishment, operation and maintenance of hotels, motels, inns, pension houses,
lodging houses and other similar establishments; (2) The Ordinance is void as it is violative of
Presidential Decree (P.D.) No. 49913 which specifically declared portions of the Ermita-Malate area as
a commercial zone with certain restrictions; (3) The Ordinance does not constitute a proper exercise
of police power as the compulsory closure of the motel business has no reasonable relation to the
legitimate municipal interests sought to be protected; (4) The Ordinance constitutes an ex post
facto law by punishing the operation of Victoria Court which was a legitimate business prior to its
enactment; (5) The Ordinance violates MTDC's constitutional rights in that: (a) it is confiscatory and
constitutes an invasion of plaintiff's property rights; (b) the City Council has no power to find as a fact
that a particular thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and
(6) The Ordinance constitutes a denial of equal protection under the law as no reasonable basis
exists for prohibiting the operation of motels and inns, but not pension houses, hotels, lodging
houses or other similar establishments, and for prohibiting said business in the Ermita-Malate area
but not outside of this area.14

In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained that the City
Council had the power to "prohibit certain forms of entertainment in order to protect the social and
moral welfare of the community" as provided for in Section 458 (a) 4 (vii) of the Local Government
Code,16 which reads, thus:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:

....

(4) Regulate activities relative to the use of land, buildings and structures within the city in
order to promote the general welfare and for said purpose shall:

....

(vii) Regulate the establishment, operation, and maintenance of any entertainment or

amusement facilities, including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community.

Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation spoken of in the
above-quoted provision included the power to control, to govern and to restrain places of exhibition
and amusement.18

Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to protect
the social and moral welfare of the community in conjunction with its police power as found in Article
III, Section 18(kk) of Republic Act No. 409,19 otherwise known as the Revised Charter of the City of
Manila (Revised Charter of Manila)20 which reads, thus:

ARTICLE III
 THE MUNICIPAL BOARD

. . .

Section 18. Legislative powers. – The Municipal Board shall have the following legislative
powers:

. . .

(kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety,
the furtherance of the prosperity, and the promotion of the morality, peace, good order,
comfort, convenience, and general welfare of the city and its inhabitants, and such others as
may be necessary to carry into effect and discharge the powers and duties conferred by this
chapter; and to fix penalties for the violation of ordinances which shall not exceed two
hundred pesos fine or six months' imprisonment, or both such fine and imprisonment, for a
single offense.

Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private
respondent had the burden to prove its illegality or unconstitutionality.21

Petitioners also maintained that there was no inconsistency between P.D. 499 and the Ordinance as
the latter simply disauthorized certain forms of businesses and allowed the Ermita-Malate area to
remain a commercial zone.22 The Ordinance, the petitioners likewise claimed, cannot be assailed
as ex post facto as it was prospective in operation.23 The Ordinance also did not infringe the equal
protection clause and cannot be denounced as class legislation as there existed substantial and real
differences between the Ermita-Malate area and other places in the City of Manila.24

On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-parte
temporary restraining order against the enforcement of the Ordinance.25 And on 16 July 1993, again
in an intrepid gesture, he granted the writ of preliminary injunction prayed for by MTDC.26

After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the
petitioners from implementing the Ordinance. The dispositive portion of said Decision reads:27

WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of

1993, of the City of Manila null and void, and making permanent the writ of preliminary
injunction that had been issued by this Court against the defendant. No costs.

SO ORDERED.28

Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994, manifesting that they
are elevating the case to this Court under then Rule 42 on pure questions of law.30

On 11 January 1995, petitioners filed the present Petition, alleging that the following errors were
committed by the lower court in its ruling: (1) It erred in concluding that the subject ordinance is ultra
vires, or otherwise, unfair, unreasonable and oppressive exercise of police power; (2) It erred in
holding that the questioned Ordinancecontravenes P.D. 49931 which allows operators of all kinds of
commercial establishments, except those specified therein; and (3) It erred in declaring
the Ordinance void and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions they made
before the lower court. They contend that the assailed Ordinance was enacted in the exercise of the
inherent and plenary power of the State and the general welfare clause exercised by local
government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and
conjunctively, Section 458 (a) 4 (vii) of the Code.34 They allege that the Ordinance is a valid exercise
of police power; it does not contravene P.D. 499; and that it enjoys the presumption of validity.35

In its Memorandum36 dated 27 May 1996, private respondent maintains that the Ordinance is ultra
vires and that it is void for being repugnant to the general law. It reiterates that the
questioned Ordinance is not a valid exercise of police power; that it is violative of due process,
confiscatory and amounts to an arbitrary interference with its lawful business; that it is violative of the
equal protection clause; and that it confers on petitioner City Mayor or any officer unregulated
discretion in the execution of the Ordinance absent rules to guide and control his actions.

This is an opportune time to express the Court's deep sentiment and tenderness for the Ermita-
Malate area being its home for several decades. A long-time resident, the Court witnessed the area's
many turn of events. It relished its glory days and endured its days of infamy. Much as the Court
harks back to the resplendent era of the Old Manila and yearns to restore its lost grandeur, it
believes that the Ordinance is not the fitting means to that end. The Court is of the opinion, and so
holds, that the lower court did not err in declaring the Ordinance, as it did, ultra vires and therefore
null and void.

The Ordinance is so replete with constitutional infirmities that almost every sentence thereof violates
a constitutional provision. The prohibitions and sanctions therein transgress the cardinal rights of
persons enshrined by the Constitution. The Court is called upon to shelter these rights from attempts
at rendering them worthless.

The tests of a valid ordinance are well established. A long line of decisions has held that for an
ordinance to be valid, it must not only be within the corporate powers of the local government unit to
enact and must be passed according to the procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must
not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with public policy; and (6) must not be
unreasonable.37

Anent the first criterion, ordinances shall only be valid when they are not contrary to the Constitution
and to the laws.38 The Ordinance must satisfy two requirements: it must pass muster under the test of
constitutionality and the test of consistency with the prevailing laws. That ordinances should be
constitutional uphold the principle of the supremacy of the Constitution. The requirement that the
enactment must not violate existing law gives stress to the precept that local government units are
able to legislate only by virtue of their derivative legislative power, a delegation of legislative power
from the national legislature. The delegate cannot be superior to the principal or exercise powers
higher than those of the latter.39

This relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. The
national legislature is still the principal of the local government units, which cannot defy its will or
modify or violate it.40

The Ordinance was passed by the City Council in the exercise of its police power, an enactment of
the City Council acting as agent of Congress. Local government units, as agencies of the State, are
endowed with police power in order to effectively accomplish and carry out the declared objects of
their creation.41 This delegated police power is found in Section 16 of the Code, known as the general
welfare clause, viz:

SECTION 16. General Welfare.Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their inhabitants.

Local government units exercise police power through their respective legislative bodies; in this
case, the sangguniang panlungsod or the city council. The Code empowers the legislative bodies to
"enact ordinances, approve resolutions and appropriate funds for the general welfare of the
province/city/municipality and its inhabitants pursuant to Section 16 of the Code and in the proper
exercise of the corporate powers of the province/city/ municipality provided under the Code.42 The
inquiry in this Petition is concerned with the validity of the exercise of such delegated power.

The Ordinance contravenes

the Constitution

The police power of the City Council, however broad and far-reaching, is subordinate to the
constitutional limitations thereon; and is subject to the limitation that its exercise must be reasonable
and for the public good.43 In the case at bar, the enactment of the Ordinance was an invalid exercise
of delegated power as it is unconstitutional and repugnant to general laws.

The relevant constitutional provisions are the following:

SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and
the promotion of the general welfare are essential for the enjoyment by all the people of the
blessings of democracy.44

SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men.45

SEC. 1. No person shall be deprived of life, liberty or property without due process of law,
nor shall any person be denied the equal protection of laws.46

Sec. 9. Private property shall not be taken for public use without just compensation.47

A. The Ordinance infringes

the Due Process Clause

The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be deprived of
life, liberty or property without due process of law. . . ."48

There is no controlling and precise definition of due process. It furnishes though a standard to which
governmental action should conform in order that deprivation of life, liberty or property, in each
appropriate case, be valid. This standard is aptly described as a responsiveness to the supremacy
of reason, obedience to the dictates of justice,49and as such it is a limitation upon the exercise of the
police power.50

The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and
property of individuals; to secure the individual from the arbitrary exercise of the powers of the
government, unrestrained by the established principles of private rights and distributive justice; to
protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction
without a trial and conviction by the ordinary mode of judicial procedure; and to secure to all persons
equal and impartial justice and the benefit of the general law.51

The guaranty serves as a protection against arbitrary regulation, and private corporations and
partnerships are "persons" within the scope of the guaranty insofar as their property is concerned.52

This clause has been interpreted as imposing two separate limits on government, usually called
"procedural due process" and "substantive due process."

Procedural due process, as the phrase implies, refers to the procedures that the government must
follow before it deprives a person of life, liberty, or property. Classic procedural due process issues
are concerned with what kind of notice and what form of hearing the government must provide when
it takes a particular action.53

Substantive due process, as that phrase connotes, asks whether the government has an adequate
reason for taking away a person's life, liberty, or property. In other words, substantive due process
looks to whether there is a sufficient justification for the government's action.54 Case law in the United
States (U.S.) tells us that whether there is such a justification depends very much on the level of
scrutiny used.55 For example, if a law is in an area where only rational basis review is applied,
substantive due process is met so long as the law is rationally related to a legitimate government
purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights,
then the government will meet substantive due process only if it can prove that the law is necessary
to achieve a compelling government purpose.56

The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law. Such power
cannot be exercised whimsically, arbitrarily or despotically57 as its exercise is subject to a
qualification, limitation or restriction demanded by the respect and regard due to the prescription of
the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it bears
emphasis, may be adversely affected only to the extent that may fairly be required by the legitimate
demands of public interest or public welfare.58 Due process requires the intrinsic validity of the law in
interfering with the rights of the person to his life, liberty and property.59

Requisites for the valid exercise

of Police Power are not met

To successfully invoke the exercise of police power as the rationale for the enactment of
the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear
that the interests of the public generally, as distinguished from those of a particular class, require an
interference with private rights, but the means adopted must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.60It must be evident that
no other alternative for the accomplishment of the purpose less intrusive of private rights can
work. A reasonable relation must exist between the purposes of the police measure and the means
employed for its accomplishment, for even under the guise of protecting the public interest, personal
rights and those pertaining to private property will not be permitted to be arbitrarily invaded.61

Lacking a concurrence of these two requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights62 a violation of the due process clause.

The Ordinance was enacted to address and arrest the social ills purportedly spawned by the
establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer
of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges,
hotels and motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila63 had already taken judicial notice of the
"alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part
to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and
exit and thus become the ideal haven for prostitutes and thrill-seekers."64

The object of the Ordinance was, accordingly, the promotion and protection of the social and moral
values of the community. Granting for the sake of argument that the objectives of the Ordinance are
within the scope of the City Council's police powers, the means employed for the accomplishment
thereof were unreasonable and unduly oppressive.

It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable
regulations looking to the promotion of the moral and social values of the community. However, the
worthy aim of fostering public morals and the eradication of the community's social ills can be
achieved through means less restrictive of private rights; it can be attained by reasonable restrictions
rather than by an absolute prohibition. The closing down and transfer of businesses or their
conversion into businesses "allowed" under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated establishments
will not per seprotect and promote the social and moral welfare of the community; it will not in itself
eradicate the alluded social ills of prostitution, adultery, fornication nor will it arrest the spread of
sexual disease in Manila.

Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and
establishments of the like which the City Council may lawfully prohibit,65 it is baseless and
insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars, night
clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This is not
warranted under the accepted definitions of these terms. The enumerated establishments are lawful
pursuits which are not per se offensive to the moral welfare of the community.

That these are used as arenas to consummate illicit sexual affairs and as venues to further the
illegal prostitution is of no moment. We lay stress on the acrid truth that sexual immorality, being a
human frailty, may take place in the most innocent of places that it may even take place in the
substitute establishments enumerated under Section 3 of the Ordinance. If the flawed logic of
the Ordinance were to be followed, in the remote instance that an immoral sexual act transpires in a
church cloister or a court chamber, we would behold the spectacle of the City of Manila ordering the
closure of the church or court concerned. Every house, building, park, curb, street or even vehicles
for that matter will not be exempt from the prohibition. Simply because there are no "pure" places
where there are impure men. Indeed, even the Scripture and the Tradition of Christians churches
continually recall the presence and universality of sin in man's history.66

The problem, it needs to be pointed out, is not the establishment, which by its nature cannot be said
to be injurious to the health or comfort of the community and which in itself is amoral, but the
deplorable human activity that may occur within its premises. While a motel may be used as a venue
for immoral sexual activity, it cannot for that reason alone be punished. It cannot be classified as a
house of ill-repute or as a nuisance per se on a mere likelihood or a naked assumption. If that were
so and if that were allowed, then the Ermita-Malate area would not only be purged of its supposed
social ills, it would be extinguished of its soul as well as every human activity, reprehensible or not,
in its every nook and cranny would be laid bare to the estimation of the authorities.

The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as
the Ordinance may to shape morality, it should not foster the illusion that it can make a moral man
out of it because immorality is not a thing, a building or establishment; it is in the hearts of men. The
City Council instead should regulate human conduct that occurs inside the establishments, but not to
the detriment of liberty and privacy which are covenants, premiums and blessings of democracy.

While petitioners' earnestness at curbing clearly objectionable social ills is commendable, they
unwittingly punish even the proprietors and operators of "wholesome," "innocent" establishments. In
the instant case, there is a clear invasion of personal or property rights, personal in the case of those
individuals desirous of owning, operating and patronizing those motels and property in terms of the
investments made and the salaries to be paid to those therein employed. If the City of Manila so
desires to put an end to prostitution, fornication and other social ills, it can instead impose
reasonable regulations such as daily inspections of the establishments for any violation of the
conditions of their licenses or permits; it may exercise its authority to suspend or revoke their
licenses for these violations;67 and it may even impose increased license fees. In other words, there
are other means to reasonably accomplish the desired end.

Means employed are

constitutionally infirm

The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars,
beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and
inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated
establishments are given three (3) months from the date of approval of the Ordinance within which
"to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert
said businesses to other kinds of business allowable within the area." Further, it states in Section 4
that in cases of subsequent violations of the provisions of the Ordinance, the "premises of the erring
establishment shall be closed and padlocked permanently."

It is readily apparent that the means employed by the Ordinance for the achievement of its purposes,
the governmental interference itself, infringes on the constitutional guarantees of a person's
fundamental right to liberty and property.

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to
exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right
of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare."68 In accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the
concept of liberty.69

The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify the meaning of
"liberty." It said:
 While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the
Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily
restraint but also the right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience, and generally to
enjoy those privileges long recognized…as essential to the orderly pursuit of happiness by
free men. In a Constitution for a free people, there can be no doubt that the meaning of
"liberty" must be broad indeed.

In another case, it also confirmed that liberty protected by the due process clause includes personal
decisions relating to marriage, procreation, contraception, family relationships, child rearing, and
education. In explaining the respect the Constitution demands for the autonomy of the person in
making these choices, the U.S. Supreme Court explained:

These matters, involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to the liberty protected
by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept
of existence, of meaning, of universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood where they formed under compulsion
of the State.71

Persons desirous to own, operate and patronize the enumerated establishments under Section 1 of
the Ordinancemay seek autonomy for these purposes.

Motel patrons who are single and unmarried may invoke this right to autonomy to consummate their
bonds in intimate sexual conduct within the motel's premisesbe it stressed that their consensual
sexual behavior does not contravene any fundamental state policy as contained in the
Constitution.72 Adults have a right to choose to forge such relationships with others in the confines of
their own private lives and still retain their dignity as free persons. The liberty protected by the
Constitution allows persons the right to make this choice.73 Their right to liberty under the due process
clause gives them the full right to engage in their conduct without intervention of the government, as
long as they do not run afoul of the law. Liberty should be the rule and restraint the exception.

Liberty in the constitutional sense not only means freedom from unlawful government restraint; it
must include privacy as well, if it is to be a repository of freedom. The right to be let alone is the
beginning of all freedomit is the most comprehensive of rights and the right most valued by
civilized men.74

The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc,75 borrowing the words of Laski, so very aptly stated:

Man is one among many, obstinately refusing reduction to unity. His separateness, his
isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which
his civic obligations are built. He cannot abandon the consequences of his isolation, which
are, broadly speaking, that his experience is private, and the will built out of that experience
personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set
by the will of others, he ceases to be a master of himself. I cannot believe that a man no
longer a master of himself is in any real sense free.

Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which
should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of the citizen.76

There is a great temptation to have an extended discussion on these civil liberties but the Court
chooses to exercise restraint and restrict itself to the issues presented when it should. The previous
pronouncements of the Court are not to be interpreted as a license for adults to engage in criminal
conduct. The reprehensibility of such conduct is not diminished. The Court only reaffirms and
guarantees their right to make this choice. Should they be prosecuted for their illegal conduct, they
should suffer the consequences of the choice they have made. That, ultimately, is their choice.

Modality employed is
unlawful taking

In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent
of the beneficial use of its property.77 The Ordinance in Section 1 thereof forbids the running of the
enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to
wind up business operations or to transfer outside the area or convert said businesses into allowed
businesses. An ordinance which permanently restricts the use of property that it can not be used for
any reasonable purpose goes beyond regulation and must be recognized as a taking of the property
without just compensation.78 It is intrusive and violative of the private property rights of individuals.

The Constitution expressly provides in Article III, Section 9, that "private property shall not be taken
for public use without just compensation." The provision is the most important protection of property
rights in the Constitution. This is a restriction on the general power of the government to take
property. The constitutional provision is about ensuring that the government does not confiscate the
property of some to give it to others. In part too, it is about loss spreading. If the government takes
away a person's property to benefit society, then society should pay. The principal purpose of the
guarantee is "to bar the Government from forcing some people alone to bear public burdens which,
in all fairness and justice, should be borne by the public as a whole.79

There are two different types of taking that can be identified. A "possessory" taking occurs when the
government confiscates or physically occupies property. A "regulatory" taking occurs when the
government's regulation leaves no reasonable economically viable use of the property.80

In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also could be found if
government regulation of the use of property went "too far." When regulation reaches a certain
magnitude, in most if not in all cases there must be an exercise of eminent domain and
compensation to support the act. While property may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking.82

No formula or rule can be devised to answer the questions of what is too far and when regulation
becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of degree and
therefore cannot be disposed of by general propositions." On many other occasions as well, the U.S.
Supreme Court has said that the issue of when regulation constitutes a taking is a matter of
considering the facts in each case. The Court asks whether justice and fairness require that the
economic loss caused by public action must be compensated by the government and thus borne by
the public as a whole, or whether the loss should remain concentrated on those few persons subject
to the public action.83

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking
if it leaves no reasonable economically viable use of property in a manner that interferes with
reasonable expectations for use.84 A regulation that permanently denies all economically beneficial or
productive use of land is, from the owner's point of view, equivalent to a "taking" unless principles of
nuisance or property law that existed when the owner acquired the land make the use
prohibitable.85 When the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his property economically idle, he
has suffered a taking.86

A regulation which denies all economically beneficial or productive use of land will require
compensation under the takings clause. Where a regulation places limitations on land that fall short
of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending
on a complex of factors including the regulation's economic effect on the landowner, the extent to
which the regulation interferes with reasonable investment-backed expectations and the character of
government action. These inquiries are informed by the purpose of the takings clause which is to
prevent the government from forcing some people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.87

A restriction on use of property may also constitute a "taking" if not reasonably necessary to the
effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner.88

The Ordinance gives the owners and operators of the "prohibited" establishments three (3) months
from its approval within which to "wind up business operations or to transfer to any place outside of
the Ermita-Malate area or convert said businesses to other kinds of business allowable within the
area." The directive to "wind up business operations" amounts to a closure of the establishment, a
permanent deprivation of property, and is practically confiscatory. Unless the owner converts his
establishment to accommodate an "allowed" business, the structure which housed the previous
business will be left empty and gathering dust. Suppose he transfers it to another area, he will
likewise leave the entire establishment idle. Consideration must be given to the substantial amount
of money invested to build the edifices which the owner reasonably expects to be returned within a
period of time. It is apparent that the Ordinance leaves no reasonable economically viable use of
property in a manner that interferes with reasonable expectations for use.

The second and third options to transfer to any place outside of the Ermita-Malate area or to
convert into allowed businessesare confiscatory as well. The penalty of permanent closure in
cases of subsequent violations found in Section 4 of the Ordinance is also equivalent to a "taking" of
private property.

The second option instructs the owners to abandon their property and build another one outside the
Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with an
additional burden imposed on the owner to build another establishment solely from his coffers. The
proffered solution does not put an end to the "problem," it merely relocates it. Not only is this
impractical, it is unreasonable, onerous and oppressive. The conversion into allowed enterprises is
just as ridiculous. How may the respondent convert a motel into a restaurant or a coffee shop, art
gallery or music lounge without essentially destroying its property? This is a taking of private
property without due process of law, nay, even without compensation.

The penalty of closure likewise constitutes unlawful taking that should be compensated by the
government. The burden on the owner to convert or transfer his business, otherwise it will be closed
permanently after a subsequent violation should be borne by the public as this end benefits them as
a whole.

Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning ordinance,
although a valid exercise of police power, which limits a "wholesome" property to a use which can
not reasonably be made of it constitutes the taking of such property without just
compensation. Private property which is not noxious nor intended for noxious purposes may not, by
zoning, be destroyed without compensation. Such principle finds no support in the principles of
justice as we know them. The police powers of local government units which have always received
broad and liberal interpretation cannot be stretched to cover this particular taking.

Distinction should be made between destruction from necessity and eminent domain. It needs
restating that the property taken in the exercise of police power is destroyed because it is noxious or
intended for a noxious purpose while the property taken under the power of eminent domain is
intended for a public use or purpose and is therefore "wholesome."89 If it be of public benefit that a
"wholesome" property remain unused or relegated to a particular purpose, then certainly the public
should bear the cost of reasonable compensation for the condemnation of private property for public
use.90

Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in no
way controls or guides the discretion vested in them. It provides no definition of the establishments
covered by it and it fails to set forth the conditions when the establishments come within its ambit of
prohibition. The Ordinance confers upon the mayor arbitrary and unrestricted power to close down
establishments. Ordinances such as this, which make possible abuses in its execution, depending
upon no conditions or qualifications whatsoever other than the unregulated arbitrary will of the city
authorities as the touchstone by which its validity is to be tested, are unreasonable and invalid.
The Ordinance should have established a rule by which its impartial enforcement could be secured.91

Ordinances placing restrictions upon the lawful use of property must, in order to be valid and
constitutional, specify the rules and conditions to be observed and conduct to avoid; and must not
admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the law
enforcers in carrying out its provisions.92

Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S. Supreme Court
struck down an ordinance that had made it illegal for "three or more persons to assemble on any
sidewalk and there conduct themselves in a manner annoying to persons passing by." The
ordinance was nullified as it imposed no standard at all "because one may never know in advance
what 'annoys some people but does not annoy others.' "

Similarly, the Ordinance does not specify the standards to ascertain which establishments "tend to
disturb the community," "annoy the inhabitants," and "adversely affect the social and moral welfare
of the community." The cited case supports the nullification of the Ordinance for lack of
comprehensible standards to guide the law enforcers in carrying out its provisions.

Petitioners cannot therefore order the closure of the enumerated establishments without infringing
the due process clause. These lawful establishments may be regulated, but not prevented from
carrying on their business. This is a sweeping exercise of police power that is a result of a lack of
imagination on the part of the City Council and which amounts to an interference into personal and
private rights which the Court will not countenance. In this regard, we take a resolute stand to uphold
the constitutional guarantee of the right to liberty and property.

Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far cry from
the ill-considered Ordinance enacted by the City Council.

In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive ordinance regulating
"sexually oriented businesses," which are defined to include adult arcades, bookstores, video stores,
cabarets, motels, and theaters as well as escort agencies, nude model studio and sexual encounter
centers. Among other things, the ordinance required that such businesses be licensed. A group of
motel owners were among the three groups of businesses that filed separate suits challenging the
ordinance. The motel owners asserted that the city violated the due process clause by failing to
produce adequate support for its supposition that renting room for fewer than ten (10) hours resulted
in increased crime and other secondary effects. They likewise argued than the ten (10)-hour
limitation on the rental of motel rooms placed an unconstitutional burden on the right to freedom of
association. Anent the first contention, the U.S. Supreme Court held that the reasonableness of the
legislative judgment combined with a study which the city considered, was adequate to support the
city's determination that motels permitting room rentals for fewer than ten (10 ) hours should be
included within the licensing scheme. As regards the second point, the Court held that limiting motel
room rentals to ten (10) hours will have no discernible effect on personal bonds as those bonds that
are formed from the use of a motel room for fewer than ten (10) hours are not those that have played
a critical role in the culture and traditions of the nation by cultivating and transmitting shared ideals
and beliefs.

The ordinance challenged in the above-cited case merely regulated the targeted businesses. It
imposed reasonable restrictions; hence, its validity was upheld.

The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,96 it
needs pointing out, is also different from this case in that what was involved therein was a measure
which regulated the mode in which motels may conduct business in order to put an end to practices
which could encourage vice and immorality. Necessarily, there was no valid objection on due
process or equal protection grounds as the ordinance did not prohibit motels. The Ordinance in this
case however is not a regulatory measure but is an exercise of an assumed power to prohibit.97

The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of
property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it
cannot, even under the guise of exercising police power, be upheld as valid.

B. The Ordinance violates Equal

Protection Clause

Equal protection requires that all persons or things similarly situated should be treated alike, both as
to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be
treated differently, so as to give undue favor to some and unjustly discriminate against others.98 The
guarantee means that no person or class of persons shall be denied the same protection of laws
which is enjoyed by other persons or other classes in like circumstances.99 The "equal protection of
the laws is a pledge of the protection of equal laws."100 It limits governmental discrimination. The
equal protection clause extends to artificial persons but only insofar as their property is concerned.101

The Court has explained the scope of the equal protection clause in this wise:

… What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration:
"The ideal situation is for the law's benefits to be available to all, that none be placed outside
the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of
men governed by that serene and impartial uniformity, which is of the very essence of the
idea of law." There is recognition, however, in the opinion that what in fact exists "cannot
approximate the ideal. Nor is the law susceptible to the reproach that it does not take into
account the realities of the situation. The constitutional guarantee then is not to be given a
meaning that disregards what is, what does in fact exist. To assure that the general welfare
be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty
and property. Those adversely affected may under such circumstances invoke the equal
 protection clause only if they can show that the governmental act assailed, far from being
inspired by the attainment of the common weal was prompted by the spirit of hostility, or at
the very least, discrimination that finds no support in reason." Classification is thus not ruled
out, it being sufficient to quote from the Tuason decision anew "that the laws operate equally
and uniformly on all persons under similar circumstances or that all persons must be treated
in the same manner, the conditions not being different, both in the privileges conferred and
the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances
which, if not identical, are analogous. If law be looked upon in terms of burden or charges,
those that fall within a class should be treated in the same fashion, whatever restrictions cast
on some in the group equally binding on the rest.102

Legislative bodies are allowed to classify the subjects of legislation. If the classification is
reasonable, the law may operate only on some and not all of the people without violating the equal
protection clause.103 The classification must, as an indispensable requisite, not be arbitrary. To be
valid, it must conform to the following requirements:

1) It must be based on substantial distinctions.

2) It must be germane to the purposes of the law.

3) It must not be limited to existing conditions only.

4) It must apply equally to all members of the class.104

In the Court's view, there are no substantial distinctions between motels, inns, pension houses,
hotels, lodging houses or other similar establishments. By definition, all are commercial
establishments providing lodging and usually meals and other services for the public. No reason
exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar
establishments. The classification in the instant case is invalid as similar subjects are not similarly
treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on
substantial distinctions bearing a just and fair relation to the purpose of the Ordinance.

The Court likewise cannot see the logic for prohibiting the business and operation of motels in the
Ermita-Malate area but not outside of this area. A noxious establishment does not become any less
noxious if located outside the area.

The standard "where women are used as tools for entertainment" is also discriminatory as
prostitutionone of the hinted ills the Ordinance aims to banishis not a profession exclusive to
women. Both men and women have an equal propensity to engage in prostitution. It is not any less
grave a sin when men engage in it. And why would the assumption that there is an ongoing immoral
activity apply only when women are employed and be inapposite when men are in harness? This
discrimination based on gender violates equal protection as it is not substantially related to important
government objectives.105 Thus, the discrimination is invalid.

Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency with
prevailing laws.

C. The Ordinance is repugnant

to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local government units
to regulate, and not prohibit, the establishments enumerated in Section 1 thereof.

The power of the City Council to regulate by ordinances the establishment, operation, and
maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4 (iv),
which provides that:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:

. . .

(4) Regulate activities relative to the use of land, buildings and structures within the city in
order to promote the general welfare and for said purpose shall:

. . .

(iv) Regulate the establishment, operation and maintenance of cafes, restaurants,

beerhouses, hotels, motels, inns, pension houses, lodging houses, and other similar
establishments, including tourist guides and transports . . . .

While its power to regulate the establishment, operation and maintenance of any entertainment or
amusement facilities, and to prohibit certain forms of amusement or entertainment is provided under
Section 458 (a) 4 (vii) of the Code, which reads as follows:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:

. . .

(4) Regulate activities relative to the use of land, buildings and structures within the city in
order to promote the general welfare and for said purpose shall:

. . .

(vii) Regulate the establishment, operation, and maintenance of any entertainment or

amusement facilities, including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect the social
and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses,
lodging houses, and other similar establishments, the only power of the City Council to legislate
relative thereto is to regulate them to promote the general welfare. The Code still withholds from
cities the power to suppress and prohibit altogether the establishment, operation and maintenance of
such establishments. It is well to recall the rulings of the Court in Kwong Sing v. City of Manila106 that:

The word "regulate," as used in subsection (l), section 2444 of the Administrative Code,
means and includes the power to control, to govern, and to restrain; but "regulate" should not
be construed as synonymous with "suppress" or "prohibit." Consequently, under the power to
regulate laundries, the municipal authorities could make proper police regulations as to the
mode in which the employment or business shall be exercised.107

And in People v. Esguerra,108 wherein the Court nullified an ordinance of the Municipality of Tacloban
which prohibited the selling, giving and dispensing of liquor ratiocinating that the municipality is
empowered only to regulate the same and not prohibit. The Court therein declared that:

(A)s a general rule when a municipal corporation is specifically given authority or power to
regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld.109

These doctrines still hold contrary to petitioners' assertion110 that they were modified by the Code
vesting upon City Councils prohibitory powers.

Similarly, the City Council exercises regulatory powers over public dancing schools, public dance
halls, sauna baths, massage parlors, and other places for entertainment or amusement as found in
the first clause of Section 458 (a) 4 (vii). Its powers to regulate, suppress and suspend "such other
events or activities for amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants" and to "prohibit certain forms of amusement or entertainment in
order to protect the social and moral welfare of the community" are stated in the second and third
clauses, respectively of the same Section. The several powers of the City Council as provided in
Section 458 (a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the
use of which indicates that the clauses in which these powers are set forth are independent of each
other albeit closely related to justify being put together in a single enumeration or paragraph.111 These
powers, therefore, should not be confused, commingled or consolidated as to create a
conglomerated and unified power of regulation, suppression and prohibition.112

The Congress unequivocably specified the establishments and forms of amusement or

entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public dancing
schools, public dance halls, sauna baths, massage parlors, and other places for entertainment or
amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be included as among "other
events or activities for amusement or entertainment, particularly those which tend to disturb the
community or annoy the inhabitants" or "certain forms of amusement or entertainment" which the
City Council may suspend, suppress or prohibit.

The rule is that the City Council has only such powers as are expressly granted to it and those which
are necessarily implied or incidental to the exercise thereof. By reason of its limited powers and the
nature thereof, said powers are to be construed strictissimi juris and any doubt or ambiguity arising
out of the terms used in granting said powers must be construed against the City
Council.113 Moreover, it is a general rule in statutory construction that the express mention of one
person, thing, or consequence is tantamount to an express exclusion of all others. Expressio unius
est exclusio alterium. This maxim is based upon the rules of logic and the natural workings of human
mind. It is particularly applicable in the construction of such statutes as create new rights or
remedies, impose penalties or punishments, or otherwise come under the rule of strict
construction.114

The argument that the City Council is empowered to enact the Ordinance by virtue of the general
welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila is likewise
without merit. On the first point, the ruling of the Court in People v. Esguerra,115 is instructive. It held
that:

The powers conferred upon a municipal council in the general welfare clause, or section
2238 of the Revised Administrative Code, refers to matters not covered by the other
provisions of the same Code, and therefore it can not be applied to intoxicating liquors, for
the power to regulate the selling, giving away and dispensing thereof is granted specifically
by section 2242 (g) to municipal councils. To hold that, under the general power granted by
section 2238, a municipal council may enact the ordinance in question, notwithstanding the
provision of section 2242 (g), would be to make the latter superfluous and nugatory, because
the power to prohibit, includes the power to regulate, the selling, giving away and dispensing
of intoxicating liquors.

On the second point, it suffices to say that the Code being a later expression of the legislative will
must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis
posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant
thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent, that
which is passed later prevails, since it is the latest expression of legislative will.116 If there is an
inconsistency or repugnance between two statutes, both relating to the same subject matter, which
cannot be removed by any fair and reasonable method of interpretation, it is the latest expression of
the legislative will which must prevail and override the earlier.117

Implied repeals are those which take place when a subsequently enacted law contains provisions
contrary to those of an existing law but no provisions expressly repealing them. Such repeals have
been divided into two general classes: those which occur where an act is so inconsistent or
irreconcilable with an existing prior act that only one of the two can remain in force and those which
occur when an act covers the whole subject of an earlier act and is intended to be a substitute
therefor. The validity of such a repeal is sustained on the ground that the latest expression of the
legislative will should prevail.118

In addition, Section 534(f) of the Code states that "All general and special laws, acts, city charters,
decrees, executive orders, proclamations and administrative regulations, or part or parts thereof
which are inconsistent with any of the provisions of this Code are hereby repealed or modified
accordingly." Thus, submitting to petitioners' interpretation that the Revised Charter of Manila
empowers the City Council to prohibit motels, that portion of the Charter stating such must be
considered repealed by the Code as it is at variance with the latter's provisions granting the City
Council mere regulatory powers.

It is well to point out that petitioners also cannot seek cover under the general welfare clause
authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a
nuisance per se, or one which affects the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity. It can not be said that motels are injurious
to the rights of property, health or comfort of the community. It is a legitimate business. If it be a
nuisance per accidens it may be so proven in a hearing conducted for that purpose. A motel is
not per se a nuisance warranting its summary abatement without judicial intervention.119
Notably, the City Council was conferred powers to prevent and prohibit certain activities and
establishments in another section of the Code which is reproduced as follows:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions
and appropriate funds for the general welfare of the city and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary for an efficient and effective city
government, and in this connection, shall:

. . .

(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for
habitual drunkenness in public places, vagrancy, mendicancy, prostitution, establishment
and maintenance of houses of ill repute, gambling and other prohibited games of
chance, fraudulent devices and ways to obtain money or property, drug addiction,
maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or
exhibition of obscene or pornographic materials or publications, and such other activities
inimical to the welfare and morals of the inhabitants of the city;

. . .

If it were the intention of Congress to confer upon the City Council the power to prohibit the
establishments enumerated in Section 1 of the Ordinance, it would have so declared in uncertain
terms by adding them to the list of the matters it may prohibit under the above-quoted Section.
The Ordinance now vainly attempts to lump these establishments with houses of ill-repute and
expand the City Council's powers in the second and third clauses of Section 458 (a) 4 (vii) of the
Code in an effort to overreach its prohibitory powers. It is evident that these establishments may only
be regulated in their establishment, operation and maintenance.

It is important to distinguish the punishable activities from the establishments themselves. That these
establishments are recognized legitimate enterprises can be gleaned from another Section of the
Code. Section 131 under the Title on Local Government Taxation expressly mentioned proprietors or
operators of massage clinics, sauna, Turkish and Swedish baths, hotels, motels and lodging houses
as among the "contractors" defined in paragraph (h) thereof. The same Section also defined
"amusement" as a "pleasurable diversion and entertainment," "synonymous to relaxation, avocation,
pastime or fun;" and "amusement places" to include "theaters, cinemas, concert halls, circuses and
other places of amusement where one seeks admission to entertain oneself by seeing or viewing the
show or performances." Thus, it can be inferred that the Code considers these establishments as
legitimate enterprises and activities. It is well to recall the maxim reddendo singula singulis which
means that words in different parts of a statute must be referred to their appropriate connection,
giving to each in its place, its proper force and effect, and, if possible, rendering none of them
useless or superfluous, even if strict grammatical construction demands otherwise. Likewise, where
words under consideration appear in different sections or are widely dispersed throughout an act the
same principle applies.120

Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of P.D.
499. As correctly argued by MTDC, the statute had already converted the residential Ermita-Malate
area into a commercial area. The decree allowed the establishment and operation of all kinds of
commercial establishments except warehouse or open storage depot, dump or yard, motor repair
shop, gasoline service station, light industry with any machinery or funeral establishment. The rule is
that for an ordinance to be valid and to have force and effect, it must not only be within the powers of
the council to enact but the same must not be in conflict with or repugnant to the general law.121As
succinctly illustrated in Solicitor General v. Metropolitan Manila Authority:122

The requirement that the enactment must not violate existing law explains itself. Local
political subdivisions are able to legislate only by virtue of a valid delegation of legislative
power from the national legislature (except only that the power to create their own sources of
revenue and to levy taxes is conferred by the Constitution itself). They are mere agents
vested with what is called the power of subordinate legislation. As delegates of the
Congress, the local government units cannot contravene but must obey at all times the will of
their principal. In the case before us, the enactment in question, which are merely local in
origin cannot prevail against the decree, which has the force and effect of a statute.123

Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be the rule,
it has already been held that although the presumption is always in favor of the validity or
reasonableness of the ordinance, such presumption must nevertheless be set aside when the
invalidity or unreasonableness appears on the face of the ordinance itself or is established by proper
evidence. The exercise of police power by the local government is valid unless it contravenes the
fundamental law of the land, or an act of the legislature, or unless it is against public policy or is
unreasonable, oppressive, partial, discriminating or in derogation of a common right.124

Conclusion

All considered, the Ordinance invades fundamental personal and property rights and impairs
personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is
discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that abuses
may attend the enforcement of its sanctions. And not to be forgotten, the City Council under the
Code had no power to enact the Ordinance and is therefore ultra vires, null and void.

Concededly, the challenged Ordinance was enacted with the best of motives and shares the
concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power
legislation of such character deserves the full endorsement of the judiciary we reiterate our
support for it. But inspite of its virtuous aims, the enactment of the Ordinance has no statutory or
constitutional authority to stand on. Local legislative bodies, in this case, the City Council, cannot
prohibit the operation of the enumerated establishments under Section 1 thereof or order their
transfer or conversion without infringing the constitutional guarantees of due process and equal
protection of laws not even under the guise of police power.

WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court declaring
the Ordinancevoid is AFFIRMED. Costs against petitioners.

SO ORDERED.