Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and
OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987
Constitution, i.e., in the grant of rights,
privileges, and concessions covering the
national economy and patrimony, the State
shall give preference to qualified Filipinos, 1 is
in oked by petitioner in its bid to acquire 51%
of the shares of the Manila Hotel Corporation
(MHC) which owns the historic Manila Hotel.
Opposing, respondents maintain that the
provision is not self-executing but requires an
implementing legislation for its enforcement.
Corollarily, they ask whether the 51% shares
form part of the national economy and
patrimony covered by the protective mantle of
the Constitution.
The controversy arose when respondent
Government Service Insurance System
(GSIS), pursuant to the privatization program
of the Philippine Government under
Proclamation No. 50 dated 8 December 1986,
decided to sell through public bidding 30% to
51% of the issued and outstanding shares of
respondent MHC. The winning bidder, or the
eventual "strategic partner," is to provide
management expertise and/or an
international marketing/reservation system,
and financial support to strengthen the
profitability and performance of the Manila
Hotel. 2 In a close bidding held on 18
September 1995 only two (2) bidders
participated: petitioner Manila Prince Hotel
Corporation, a Filipino corporation, which
offered to buy 51% of the MHC or 15,300,000
shares at P41.58 per share, and Renong
Berhad, a Malaysian firm, with ITT-Sheraton
as its hotel operator, which bid for the same
number of shares at P44.00 per share, or
P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules
prepared by respondent GSIS state
I. EXECUTION OF THE NECESSARY
CONTRACTS WITH GSIS/MHC
1. The Highest Bidder must comply with the
conditions set forth below by October 23, 1995
(reset to November 3, 1995) or the Highest
Bidder will lose the right to purchase the Block
of Shares and GSIS will instead offer the Block
of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and
execute with the GSIS/MHC the Management
Contract, International Marketing/Reservation
System Contract or other type of contract
specified by the Highest Bidder in its strategic
plan for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING
BIDDER/STRATEGIC PARTNER
The Highest Bidder will be declared the
Winning Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the necessary contracts
with GSIS/MHC not later than October 23,
1995 (reset to November 3, 1995); and
b. Requisite approvals from the
GSIS/MHC and COP (Committee on
Privatization)/OGCC (Office of the
Government Corporate Counsel) are
obtained. 3
Pending the declaration of Renong Berhad as
the winning bidder/strategic partner and the
execution of the necessary contracts,
petitioner in a letter to respondent GSIS dated
28 September 1995 matched the bid price of
P44.00 per share tendered by Renong
Berhad. 4 In a subsequent letter dated 10
October 1995 petitioner sent a manager's
check issued by Philtrust Bank for Thirty-three
Million Pesos (P33.000.000.00) as Bid
Security to match the bid of the Malaysian
Group, Messrs. Renong Berhad . . . 5 which
respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive
that respondent GSIS has disregarded the
tender of the matching bid and that the sale
of 51% of the MHC may be hastened by
respondent GSIS and consummated with
Renong Berhad, petitioner came to this Court
on prohibition and mandamus. On 18 October
1995 the Court issued a temporary restraining
order enjoining respondents from perfecting
and consummating the sale to the Malaysian
firm.
On 10 September 1996 the instant case was
accepted by the Court En Banc after it was
referred to it by the First Division. The case
was then set for oral arguments with former
Chief Justice Enrique M. Fernando and Fr.
Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10,
second par., Art. XII, of the 1987 Constitution
and submits that the Manila Hotel has been
identified with the Filipino nation and has
practically become a historical monument
which reflects the vibrancy of Philippine
heritage and culture. It is a proud legacy of an
earlier generation of Filipinos who believed in
the nobility and sacredness of independence
and its power and capacity to release the full
potential of the Filipino people. To all intents
and purposes, it has become a part of the
national patrimony. 6 Petitioner also argues
that since 51% of the shares of the MHC
carries with it the ownership of the business of
the hotel which is owned by respondent GSIS,
a government-owned and controlled
corporation, the hotel business of respondent
GSIS being a part of the tourism industry is
unquestionably a part of the national
economy. Thus, any transaction involving
51% of the shares of stock of the MHC is
clearly covered by the term national economy,
to which Sec. 10, second par., Art. XII, 1987
Constitution, applies. 7
It is also the thesis of petitioner that since
Manila Hotel is part of the national patrimony
and its business also unquestionably part of
the national economy petitioner should be
preferred after it has matched the bid offer of
the Malaysian firm. For the bidding rules
mandate that if for any reason, the Highest
Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified
Bidders that have validly submitted bids
provided that these Qualified Bidders are
willing to match the highest bid in terms of
price per share. 8
Respondents except. They maintain
that: First, Sec. 10, second par., Art. XII, of
the 1987 Constitution is merely a statement of
principle and policy since it is not a self-
executing provision and requires
implementing legislation(s) . . . Thus, for the
said provision to Operate, there must be
existing laws "to lay down conditions under
which business may be done." 9
Second, granting that this provision is self-
executing, Manila Hotel does not fall under the
term national patrimony which only refers to
lands of the public domain, waters, minerals,
coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna and all marine
wealth in its territorial sea, and exclusive
marine zone as cited in the first and second
paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while
petitioner speaks of the guests who have slept
in the hotel and the events that have
transpired therein which make the hotel
historic, these alone do not make the hotel fall
under the patrimonyof the nation. What is
more, the mandate of the Constitution is
addressed to the State, not to respondent
GSIS which possesses a personality of its own
separate and distinct from the Philippines as a
State.
Third, granting that the Manila Hotel forms
part of the national patrimony, the
constitutional provision invoked is still
inapplicable since what is being sold is only
51% of the outstanding shares of the
corporation, not the hotel building nor the land
upon which the building stands. Certainly,
51% of the equity of the MHC cannot be
considered part of the national patrimony.
Moreover, if the disposition of the shares of
the MHC is really contrary to the Constitution,
petitioner should have questioned it right from
the beginning and not after it had lost in the
bidding.
Fourth, the reliance by petitioner on par. V.,
subpar. J. 1., of the bidding rules which
provides that if for any reason, the Highest
Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified
Bidders that have validly submitted bids
provided that these Qualified Bidders are
willing to match the highest bid in terms of
price per share, is misplaced. Respondents
postulate that the privilege of submitting a
matching bid has not yet arisen since it only
takes place if for any reason, the Highest
Bidder cannot be awarded the Block of Shares.
Thus the submission by petitioner of a
matching bid is premature since Renong
Berhad could still very well be awarded the
block of shares and the condition giving rise to
the exercise of the privilege to submit a
matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on
grave abuse of discretion should fail since
respondent GSIS did not exercise its
discretion in a capricious, whimsical manner,
and if ever it did abuse its discretion it was not
so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal
to perform a duty enjoined by law. Similarly,
the petition for mandamus should fail as
petitioner has no clear legal right to what it
demands and respondents do not have an
imperative duty to perform the act required of
them by petitioner.
We now resolve. A constitution is a system of
fundamental laws for the governance and
administration of a nation. It is supreme,
imperious, absolute and unalterable except by
the authority from which it emanates. It has
been defined as the fundamental and
paramount law of the nation. 10 It prescribes
the permanent framework of a system of
government, assigns to the different
departments their respective powers and
duties, and establishes certain fixed principles
on which government is founded. The
fundamental conception in other words is that
it is a supreme law to which all other laws
must conform and in accordance with which all
private rights must be determined and all
public authority administered. 11 Under the
doctrine of constitutional supremacy, if a law
or contract violates any norm of the
constitution that law or contract whether
promulgated by the legislative or by the
executive branch or entered into by private
persons for private purposes is null and void
and without any force and effect. Thus, since
the Constitution is the fundamental,
paramount and supreme law of the nation, it
is deemed written in every statute and
contract.
Admittedly, some constitutions are merely
declarations of policies and principles. Their
provisions command the legislature to enact
laws and carry out the purposes of the framers
who merely establish an outline of
government providing for the different
departments of the governmental machinery
and securing certain fundamental and
inalienable rights of citizens. 12 A provision
which lays down a general principle, such as
those found in Art. II of the 1987 Constitution,
is usually not self-executing. But a provision
which is complete in itself and becomes
operative without the aid of supplementary or
enabling legislation, or that which supplies
sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-
executing. Thus a constitutional provision is
self-executing if the nature and extent of the
right conferred and the liability imposed are
fixed by the constitution itself, so that they
can be determined by an examination and
construction of its terms, and there is no
language indicating that the subject is referred
to the legislature for action. 13
As against constitutions of the past, modern
constitutions have been generally drafted
upon a different principle and have often
become in effect extensive codes of laws
intended to operate directly upon the people
in a manner similar to that of statutory
enactments, and the function of constitutional
conventions has evolved into one more like
that of a legislative body. Hence, unless it is
expressly provided that a legislative act is
necessary to enforce a constitutional
mandate, the presumption now is that all
provisions of the constitution are self-
executing If the constitutional provisions are
treated as requiring legislation instead of self-
executing, the legislature would have the
power to ignore and practically nullify the
mandate of the fundamental law. 14 This can
be cataclysmic. That is why the prevailing view
is, as it has always been, that
. . . in case of doubt, the
Constitution should be
considered self-executing
rather than non-self-executing .
. . . Unless the contrary is
clearly intended, the provisions
of the Constitution should be
considered self-executing, as a
contrary rule would give the
legislature discretion to
determine when, or whether,
they shall be effective. These
provisions would be
subordinated to the will of the
lawmaking body, which could
make them entirely
meaningless by simply refusing
to pass the needed
implementing statute. 15
Respondents argue that Sec. 10, second par.,
Art. XII, of the 1987 Constitution is clearly not
self-executing, as they quote from discussions
on the floor of the 1986 Constitutional
Commission
MR. RODRIGO. Madam President, I am
asking this question as the Chairman of
the Committee on Style. If the wording
of "PREFERENCE" is given to
QUALIFIED FILIPINOS," can it be
understood as a preference to qualified
Filipinos vis-a-vis Filipinos who are not
qualified. So, why do we not make it
clear? To qualified Filipinos as against
aliens?
THE PRESIDENT. What is the question
of Commissioner Rodrigo? Is it to
remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say
definitely "TO QUALIFIED FILIPINOS"
as against whom? As against aliens or
over aliens?
MR. NOLLEDO. Madam President, I
hink that is understood. We use the
word "QUALIFIED" because
the existing laws or prospective laws
will always lay down conditions under
which business may be done. For
example, qualifications on the setting
up of other financial structures, et
cetera (emphasis supplied by
respondents)
MR. RODRIGO. It is just a matter of
style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art
XII is couched in such a way as not to make it
appear that it is non-self-executing but simply
for purposes of style. But, certainly, the
legislature is not precluded from enacting
other further laws to enforce the constitutional
provision so long as the contemplated statute
squares with the Constitution. Minor details
may be left to the legislature without
impairing the self-executing nature of
constitutional provisions.
In self-executing constitutional provisions, the
legislature may still enact legislation to
facilitate the exercise of powers directly
granted by the constitution, further the
operation of such a provision, prescribe a
practice to be used for its enforcement,
provide a convenient remedy for the
protection of the rights secured or the
determination thereof, or place reasonable
safeguards around the exercise of the right.
The mere fact that legislation may supplement
and add to or prescribe a penalty for the
violation of a self-executing constitutional
provision does not render such a provision
ineffective in the absence of such legislation.
The omission from a constitution of any
express provision for a remedy for enforcing a
right or liability is not necessarily an indication
that it was not intended to be self-executing.
The rule is that a self-executing provision of
the constitution does not necessarily exhaust
legislative power on the subject, but any
legislation must be in harmony with the
constitution, further the exercise of
constitutional right and make it more
available. 17 Subsequent legislation however
does not necessarily mean that the subject
constitutional provision is not, by itself, fully
enforceable.
Respondents also argue that the non-self-
executing nature of Sec. 10, second par., of
Art. XII is implied from the tenor of the first
and third paragraphs of the same section
which undoubtedly are not self-
executing. 18 The argument is flawed. If the
first and third paragraphs are not self-
executing because Congress is still to enact
measures to encourage the formation and
operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the
State still needs legislation to regulate and
exercise authority over foreign investments
within its national jurisdiction, as in the third
paragraph, then a fortiori, by the same logic,
the second paragraph can only be self-
executing as it does not by its language
require any legislation in order to give
preference to qualified Filipinos in the grant of
rights, privileges and concessions covering the
national economy and patrimony. A constitutional right, such right enforces itself
constitutional provision may be self-executing
in one part and non-self-executing in
another. 19
Even the cases cited by respondents holding
that certain constitutional provisions are
merely statements of principles and policies,
which are basically not self-executing and only
placed in the Constitution as moral incentives
to legislation, not as judicially enforceable
rights are simply not in point. Basco
v. Philippine Amusements and Gaming
Corporation 20 speaks of constitutional
provisions on personal dignity, 21 the sanctity
of family life, 22 the vital role of the youth in
nation-building 23 the promotion of social
justice, 24 and the values of
education. 25 Tolentino v. Secretary of
Finance 26 refers to the constitutional
provisions on social justice and human
rights 27 and on
education. 28 Lastly, Kilosbayan,
Inc. v. Morato 29 cites provisions on the
promotion of general welfare, 30 the sanctity
of family life, 31 the vital role of the youth in
nation-building 32 and the promotion of total
human liberation and development. 33 A
reading of these provisions indeed clearly
shows that they are not judicially enforceable
constitutional rights but merely guidelines for
legislation. The very terms of the provisions
manifest that they are only principles upon
which the legislations must be based. Res ipsa
loquitur.
On the other hand, Sec. 10, second par., Art.
XII of the of the 1987 Constitution is a
mandatory, positive command which is
complete in itself and which needs no further
guidelines or implementing laws or rules for its
enforcement. From its very words the
provision does not require any legislation to
put it in operation. It is per sejudicially
enforceable When our Constitution mandates
that [i]n the grant of rights, privileges, and
concessions covering national economy and
patrimony, the State shall give preference to
qualified Filipinos, it means just that
qualified Filipinos shall be preferred. And when
our Constitution declares that a right exists in
certain specified circumstances an action may
be maintained to enforce such right
notwithstanding the absence of any legislation
on the subject; consequently, if there is no
statute especially enacted to enforce such
by its own inherent potency and puissance,
and from which all legislations must take their
bearings. Where there is a right there is a
remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member
of the 1986 Constitutional
Commission 34 explains
The patrimony of the Nation that
should be conserved and developed
refers not only to out rich natural
resources but also to the cultural
heritage of out race. It also refers to
our intelligence in arts, sciences and
letters. Therefore, we should develop
not only our lands, forests, mines and
other natural resources but also the
mental ability or faculty of our people.
We agree. In its plain and ordinary meaning,
the term patrimony pertains to
heritage. 35 When the Constitution speaks of
national patrimony, it refers not only to the
natural resources of the Philippines, as the
Constitution could have very well used the
term natural resources, but also to
the cultural heritage of the Filipinos.
Manila Hotel has become a landmark a
living testimonial of Philippine heritage. While
it was restrictively an American hotel when it
first opened in 1912, it immediately evolved
to be truly Filipino, Formerly a concourse for
the elite, it has since then become the venue
of various significant events which have
shaped Philippine history. It was called
the Cultural Center of the 1930's. It was the
site of the festivities during the inauguration
of the Philippine Commonwealth. Dubbed as
the Official Guest House of the Philippine
Government. it plays host to dignitaries and
official visitors who are accorded the
traditional Philippine hospitality. 36
The history of the hotel has been chronicled in
the book The Manila Hotel: The Heart and
Memory of a City. 37During World War II the
hotel was converted by the Japanese Military
Administration into a military headquarters.
When the American forces returned to
recapture Manila the hotel was selected by the
Japanese together with Intramuros as the two
(2) places fro their final stand. Thereafter, in
the 1950's and 1960's, the hotel became the
center of political activities, playing host to
almost every political convention. In 1970 the
hotel reopened after a renovation and reaped
numerous international recognitions, an
acknowledgment of the Filipino talent and
ingenuity. In 1986 the hotel was the site of a
failed coup d' etat where an aspirant for vice-
president was "proclaimed" President of the
Philippine Republic.
For more than eight (8) decades Manila Hotel
has bore mute witness to the triumphs and
failures, loves and frustrations of the Filipinos;
its existence is impressed with public interest;
its own historicity associated with our struggle
for sovereignty, independence and
nationhood. Verily, Manila Hotel has become
part of our national economy and patrimony.
For sure, 51% of the equity of the MHC comes
within the purview of the constitutional shelter
for it comprises the majority and controlling
stock, so that anyone who acquires or owns
the 51% will have actual control and
management of the hotel. In this instance,
51% of the MHC cannot be disassociated from
the hotel and the land on which the hotel
edifice stands. Consequently, we cannot
sustain respondents' claim that the Filipino
First Policy provision is not applicable since
what is being sold is only 51% of
the outstanding shares of the corporation, not
the Hotel building nor the land upon which the
building stands. 38
The argument is pure sophistry. The
term qualified Filipinos as used in Our
Constitution also includes corporations at least
60% of which is owned by Filipinos. This is
very clear from the proceedings of the 1986
Constitutional Commission
THE PRESIDENT. Commissioner Davide
is recognized.
MR. DAVIDE. I would like to introduce
an amendment to the Nolledo
amendment. And the amendment
would consist in substituting the words
"QUALIFIED FILIPINOS" with the
following: "CITIZENS OF THE
PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS WHOSE CAPITAL OR
CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President,
apparently the proponent is agreeable,
but we have to raise a question.
Suppose it is a corporation that is 80-
percent Filipino, do we not give it
preference?
MR. DAVIDE. The Nolledo mendment
would refer to an individual Filipino.
What about a corporation wholly
owned by Filipino citizens?
MR. MONSOD. At least 60 percent,
Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact,
we would be limiting it if we say that
the preference should only be 100-
percent Filipino.
MR: DAVIDE. I want to get that
meaning clear because "QUALIFIED
FILIPINOS" may refer only to
individuals and not to juridical
personalities or entities.
MR. MONSOD. We agree, Madam
President. 39
xxx xxx xxx
 MR. RODRIGO. Before we vote, may I
request that the amendment be read
again.
MR. NOLLEDO. The amendment will
read: "IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY
AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED
FILIPINOS." And the word "Filipinos"
here, as intended by the proponents,
will include not only individual Filipinos
but also Filipino-controlled entities or
entities fully-controlled by Filipinos. 40
The phrase preference to qualified
Filipinos was explained thus
MR. FOZ. Madam President, I would
like to request Commissioner Nolledo
to please restate his amendment so
that I can ask a question.
MR. NOLLEDO. "IN THE GRANT OF
RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE
NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED
FILIPINOS."
MR FOZ. In connection with that
amendment, if a foreign enterprise is
qualified and a Filipino enterprise is
also qualified, will the Filipino
enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more
qualified in some aspects than the
Filipino enterprise, will the Filipino still
be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First
Policy provision Commissioner Nolledo
continues
MR. NOLLEDO. Yes, Madam
President. Instead of "MUST," it
will be "SHALL THE STATE
SHALL GlVE PREFERENCE TO
QUALIFIED FILIPINOS. This
embodies the so-called "Filipino
First" policy. That means that
Filipinos should be given
preference in the grant of
concessions, privileges and
rights covering the national
patrimony. 42
The exchange of views in the sessions of the
Constitutional Commission regarding the
subject provision was still further clarified by
Commissioner Nolledo 43
Paragraph 2 of Section 10
explicitly mandates the "Pro-
Filipino" bias in all economic
concerns. It is better known as
the FILIPINO FIRST Policy . . .
This provision was never found
in previous Constitutions . . . .
The term "qualified Filipinos"
simply means that preference
shall be given to those citizens
who can make a viable
contribution to the common
good, because of credible
competence and efficiency. It
certainly does NOT mandate the
pampering and preferential
treatment to Filipino citizens or
organizations that are
incompetent or inefficient, since
such an indiscriminate
preference would be counter
productive and inimical to the
common good.
In the granting of economic
rights, privileges, and
concessions, when a choice has
to be made between a "qualified
foreigner" end a "qualified
Filipino," the latter shall be
chosen over the former."
Lastly, the word qualified is also
determinable. Petitioner was so considered by
respondent GSIS and selected as one of
the qualified bidders. It was pre-qualified by
respondent GSIS in accordance with its own
guidelines so that the sole inference here is
that petitioner has been found to be possessed
of proven management expertise in the hotel
industry, or it has significant equity ownership
in another hotel company, or it has an overall
management and marketing proficiency to
successfully operate the Manila Hotel. 44
The penchant to try to whittle away the
mandate of the Constitution by arguing that
the subject provision is not self-executory and
requires implementing legislation is quite
disturbing. The attempt to violate a clear
constitutional provision by the government
itself is only too distressing. To adopt such
a line of reasoning is to renounce the duty to
ensure faithfulness to the Constitution. For,
even some of the provisions of the
Constitution which evidently need
implementing legislation have juridical life of
their own and can be the source of a judicial
remedy. We cannot simply afford the
government a defense that arises out of the
failure to enact further enabling,
implementing or guiding legislation. In fine,
the discourse of Fr. Joaquin G. Bernas, S.J.,
on constitutional government is apt
The executive department has a
constitutional duty to
implement laws, including the
Constitution, even before
Congress acts provided that
there are discoverable legal
standards for executive action.
When the executive acts, it
must be guided by its own
understanding of the
constitutional command and of
applicable laws. The
responsibility for reading and
understanding the Constitution
and the laws is not the sole
prerogative of Congress. If it
were, the executive would have
to ask Congress, or perhaps the
Court, for an interpretation
every time the executive is
confronted by a constitutional
command. That is not how
constitutional government
operates. 45
Respondents further argue that the
constitutional provision is addressed to the
State, not to respondent GSIS which by itself
possesses a separate and distinct personality.
This argument again is at best specious. It is
undisputed that the sale of 51% of the MHC
could only be carried out with the prior
approval of the State acting through
respondent Committee on Privatization. As
correctly pointed out by Fr. Joaquin G. Bernas,
S.J., this fact alone makes the sale of the
assets of respondents GSIS and MHC a "state
action." In constitutional jurisprudence, the
acts of persons distinct from the government
are considered "state action" covered by the
Constitution (1) when the activity it engages
in is a "public function;" (2) when the
government is so significantly involved with
the private actor as to make the government
responsible for his action; and, (3) when the
government has approved or authorized the
action. It is evident that the act of respondent
GSIS in selling 51% of its share in respondent
MHC comes under the second and third
categories of "state action." Without doubt
therefore the transaction. although entered
into by respondent GSIS, is in fact a
transaction of the State and therefore subject
to the constitutional command. 46
When the Constitution addresses the State it
refers not only to the people but also to the
government as elements of the State. After
all, government is composed of three (3)
divisions of power legislative, executive and
judicial. Accordingly, a constitutional mandate
directed to the State is correspondingly
directed to the three(3) branches of
government. It is undeniable that in this case
the subject constitutional injunction is
addressed among others to the Executive
Department and respondent GSIS, a
government instrumentality deriving its
authority from the State.
It should be stressed that while the Malaysian
firm offered the higher bid it is not yet the
winning bidder. The bidding rules expressly
provide that the highest bidder shall only be
declared the winning bidder after it has
negotiated and executed the necessary
contracts, and secured the requisite
approvals. Since the "Filipino First
Policy provision of the Constitution bestows
preference on qualified Filipinos the mere
tending of the highest bid is not an assurance
that the highest bidder will be declared the
winning bidder. Resultantly, respondents are
not bound to make the award yet, nor are they
under obligation to enter into one with the
highest bidder. For in choosing the awardee
respondents are mandated to abide by the
dictates of the 1987 Constitution the
provisions of which are presumed to be known
to all the bidders and other interested parties.
Adhering to the doctrine of constitutional
supremacy, the subject constitutional
provision is, as it should be, impliedly written
in the bidding rules issued by respondent
GSIS, lest the bidding rules be nullified for
being violative of the Constitution. It is a basic
principle in constitutional law that all laws and
contracts must conform with the fundamental
law of the land. Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides
that [if] for any reason the Highest Bidder
cannot be awarded the Block of Shares, GSIS
may offer this to other Qualified Bidders that
have validly submitted bids provided that
these Qualified Bidders are willing to match
the highest bid in terms of price per
share. 47 Certainly, the constitutional
mandate itself is reason enough not to award
the block of shares immediately to the foreign
bidder notwithstanding its submission of a
higher, or even the highest, bid. In fact, we
cannot conceive of a stronger reason than the
constitutional injunction itself.
In the instant case, where a foreign firm
submits the highest bid in a public bidding
concerning the grant of rights, privileges and
concessions covering the national economy
and patrimony, thereby exceeding the bid of a
Filipino, there is no question that the Filipino
will have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the
bid of a foreign firm the award should go to
the Filipino. It must be so if we are to give life
and meaning to the Filipino First
Policy provision of the 1987 Constitution. For,
while this may neither be expressly stated nor
contemplated in the bidding rules, the
constitutional fiat is, omnipresent to be simply
disregarded. To ignore it would be to sanction
a perilous skirting of the basic law.
This Court does not discount the apprehension
that this policy may discourage foreign
investors. But the Constitution and laws of the
Philippines are understood to be always open
to public scrutiny. These are given factors
which investors must consider when venturing
into business in a foreign jurisdiction. Any
person therefore desiring to do business in the
Philippines or with any of its agencies or
instrumentalities is presumed to know his
rights and obligations under the Constitution
and the laws of the forum.
The argument of respondents that petitioner
is now estopped from questioning the sale to
Renong Berhad since petitioner was well
aware from the beginning that a foreigner
could participate in the bidding is meritless.
Undoubtedly, Filipinos and foreigners alike
were invited to the bidding. But foreigners
may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign
entity. In the case before us, while petitioner
was already preferred at the inception of the
bidding because of the constitutional
mandate, petitioner had not yet matched the
bid offered by Renong Berhad. Thus it did not
have the right or personality then to compel
respondent GSIS to accept its earlier bid.
Rightly, only after it had matched the bid of
the foreign firm and the apparent disregard by
respondent GSIS of petitioner's matching bid
did the latter have a cause of action.
Besides, there is no time frame for invoking
the constitutional safeguard unless perhaps
the award has been finally made. To insist on
selling the Manila Hotel to foreigners when
there is a Filipino group willing to match the
bid of the foreign group is to insist that
government be treated as any other ordinary
market player, and bound by its mistakes or
gross errors of judgment, regardless of the
consequences to the Filipino people. The
miscomprehension of the Constitution is
regrettable. Thus we would rather remedy the
indiscretion while there is still an opportunity
to do so than let the government develop the
habit of forgetting that the Constitution lays
down the basic conditions and parameters for
its actions.
Since petitioner has already matched the bid
price tendered by Renong Berhad pursuant to
the bidding rules, respondent GSIS is left with
no alternative but to award to petitioner the
block of shares of MHC and to execute the
necessary agreements and documents to
effect the sale in accordance not only with the
bidding guidelines and procedures but with the
Constitution as well. The refusal of respondent
GSIS to execute the corresponding documents
with petitioner as provided in the bidding rules
after the latter has matched the bid of the
Malaysian firm clearly constitutes grave abuse
of discretion.
The Filipino First Policy is a product of
Philippine nationalism. It is embodied in the
1987 Constitution not merely to be used as a
guideline for future legislation but primarily to
be enforced; so must it be enforced. This
Court as the ultimate guardian of the
Constitution will never shun, under any
reasonable circumstance, the duty of
upholding the majesty of the Constitution
which it is tasked to defend. It is worth
emphasizing that it is not the intention of this
Court to impede and diminish, much less
undermine, the influx of foreign investments.
Far from it, the Court encourages and
welcomes more business opportunities but
avowedly sanctions the preference for
Filipinos whenever such preference is ordained
by the Constitution. The position of the Court
on this matter could have not been more
appropriately articulated by Chief Justice
Narvasa
As scrupulously as it has tried to
observe that it is not its function to
substitute its judgment for that of the
legislature or the executive about the
wisdom and feasibility of legislation
economic in nature, the Supreme Court
has not been spared criticism for
decisions perceived as obstacles to
economic progress and development .
. . in connection with a temporary
injunction issued by the Court's First
Division against the sale of the Manila
Hotel to a Malaysian Firm and its
partner, certain statements were
published in a major daily to the effect
that injunction "again demonstrates
that the Philippine legal system can be
a major obstacle to doing business
here.
Let it be stated for the record once
again that while it is no business of the
Court to intervene in contracts of the
kind referred to or set itself up as the
judge of whether they are viable or
attainable, it is its bounden duty to
make sure that they do not violate the
Constitution or the laws, or are not
adopted or implemented with grave
abuse of discretion amounting to lack
or excess of jurisdiction. It will never
shirk that duty, no matter how buffeted
by winds of unfair and ill-informed
criticism. 48
Privatization of a business asset for purposes
of enhancing its business viability and
preventing further losses, regardless of the
character of the asset, should not take
precedence over non-material values. A
commercial, nay even a budgetary, objective
should not be pursued at the expense of
national pride and dignity. For the Constitution
enshrines higher and nobler non-material
values. Indeed, the Court will always defer to
the Constitution in the proper governance of a
free society; after all, there is nothing so
sacrosanct in any economic policy as to draw
itself beyond judicial review when the
Constitution is involved. 49
Nationalism is inherent, in the very concept of
the Philippines being a democratic and
republican state, with sovereignty residing in
the Filipino people and from whom all
government authority emanates. In
nationalism, the happiness and welfare of the
people must be the goal. The nation-state can
have no higher purpose. Any interpretation of
any constitutional provision must adhere to
such basic concept. Protection of foreign
investments, while laudible, is merely a policy.
It cannot override the demands of
nationalism. 50
The Manila Hotel or, for that matter, 51% of
the MHC, is not just any commodity to be sold
to the highest bidder solely for the sake of
privatization. We are not talking about an
ordinary piece of property in a commercial
district. We are talking about a historic relic
that has hosted many of the most important
events in the short history of the Philippines
as a nation. We are talking about a hotel
where heads of states would prefer to be
housed as a strong manifestation of their SO ORDERED.
desire to cloak the dignity of the highest state
function to their official visits to the Regalado, Davide, Jr., Romero, Kapunan,
Philippines. Thus the Manila Hotel has played Francisco and Hermosisima, Jr., JJ., concur.
and continues to play a significant role as an
authentic repository of twentieth century
Philippine history and culture. In this sense, it
has become truly a reflection of the Filipino
soul a place with a history of grandeur; a
most historical setting that has played a part
in the shaping of a country. 51

This Court cannot extract rhyme nor reason

from the determined efforts of respondents to
sell the historical landmark this Grand Old
Dame of hotels in Asia to a total stranger.
For, indeed, the conveyance of this epic
exponent of the Filipino psyche to alien hands
cannot be less than mephistophelian for it is,
in whatever manner viewed, a veritable
alienation of a nation's soul for some pieces of
foreign silver. And so we ask: What
advantage, which cannot be equally drawn
from a qualified Filipino, can be gained by the
Filipinos Manila Hotel and all that it stands
for is sold to a non-Filipino? How much of
national pride will vanish if the nation's
cultural heritage is entrusted to a foreign
entity? On the other hand, how much dignity
will be preserved and realized if the national
patrimony is safekept in the hands of
a qualified, zealous and well-meaning Filipino?
This is the plain and simple meaning of
the Filipino First Policy provision of the
Philippine Constitution. And this Court,
heeding the clarion call of the Constitution and
accepting the duty of being the elderly
watchman of the nation, will continue to
respect and protect the sanctity of the
Constitution.

WHEREFORE, respondents GOVERNMENT

SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL are
directed to CEASE and DESIST from selling
51% of the shares of the Manila Hotel
Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA
PRINCE HOTEL CORPORATION to purchase
the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and
thereafter to execute the necessary
clearances and to do such other acts and
deeds as may be necessary for purpose.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24693 July 31, 1967
ERMITA-MALATE HOTEL AND MOTEL
OPERATORS ASSOCIATION, INC., HOTEL
DEL MAR INC. and GO CHIU, petitioners-
appellees,
vs.
THE HONORABLE CITY MAYOR OF
MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office
for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for
intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a
judgment of the lower court in an action for
prohibition is whether Ordinance No. 4760 of
the City of Manila is violative of the due
process clause. The lower court held that it is
and adjudged it "unconstitutional, and,
therefore, null and void." For reasons to be
more specifically set forth, such judgment
must be reversed, there being a failure of the
requisite showing to sustain an attack against
its validity.
The petition for prohibition against Ordinance
No. 4760 was filed on July 5, 1963 by the
petitioners, Ermita-Malate Hotel and Motel
Operators Association, one of its members,
Hotel del Mar Inc., and a certain Go Chiu, who
is "the president and general manager of the
second petitioner" against the respondent
Mayor of the City of Manila who was sued in
his capacity as such "charged with the general
power and duty to enforce ordinances of the
City of Manila and to give the necessary orders
for the faithful execution and enforcement of
such ordinances." (par. 1). It was alleged that
the petitioner non-stock corporation is
dedicated to the promotion and protection of
the interest of its eighteen (18) members
"operating hotels and motels, characterized as
legitimate businesses duly licensed by both
national and city authorities, regularly paying
taxes, employing and giving livelihood to not
less than 2,500 person and representing an
investment of more than P3 million."1 (par. 2).
It was then alleged that on June 13, 1963, the
Municipal Board of the City of Manila enacted
Ordinance No. 4760, approved on June 14,
1963 by the then Vice-Mayor Herminio
Astorga, who was at the time acting as Mayor
of the City of Manila. (par. 3).
After which the alleged grievances against the
ordinance were set forth in detail. There was
the assertion of its being beyond the powers
of the Municipal Board of the City of Manila to
enact insofar as it would regulate motels, on
the ground that in the revised charter of the
City of Manila or in any other law, no reference
is made to motels; that Section 1 of the
challenged ordinance is unconstitutional and
void for being unreasonable and violative of
due process insofar as it would impose
P6,000.00 fee per annum for first class motels
and P4,500.00 for second class motels; that
the provision in the same section which would
require the owner, manager, keeper or duly
authorized representative of a hotel, motel, or
lodging house to refrain from entertaining or
accepting any guest or customer or letting any
room or other quarter to any person or
persons without his filling up the prescribed
form in a lobby open to public view at all times
and in his presence, wherein the surname,
given name and middle name, the date of
birth, the address, the occupation, the sex,
the nationality, the length of stay and the
number of companions in the room, if any,
with the name, relationship, age and sex
would be specified, with data furnished as to
his residence certificate as well as his passport
number, if any, coupled with a certification
that a person signing such form has personally
filled it up and affixed his signature in the
presence of such owner, manager, keeper or
duly authorized representative, with such
registration forms and records kept and bound
together, it also being provided that the
premises and facilities of such hotels, motels
and lodging houses would be open for
inspection either by the City Mayor, or the
Chief of Police, or their duly authorized
representatives is unconstitutional and void
again on due process grounds, not only for
being arbitrary, unreasonable or oppressive
but also for being vague, indefinite and
uncertain, and likewise for the alleged
invasion of the right to privacy and the
guaranty against self-incrimination; that
Section 2 of the challenged ordinance
classifying motels into two classes and
requiring the maintenance of certain minimum
facilities in first class motels such as a
telephone in each room, a dining room or,
restaurant and laundry similarly offends
against the due process clause for being
arbitrary, unreasonable and oppressive, a
conclusion which applies to the portion of the
ordinance requiring second class motels to
have a dining room; that the provision of
Section 2 of the challenged ordinance
prohibiting a person less than 18 years old
from being accepted in such hotels, motels,
lodging houses, tavern or common inn unless
accompanied by parents or a lawful guardian
and making it unlawful for the owner,
manager, keeper or duly authorized
representative of such establishments to lease
any room or portion thereof more than twice
every 24 hours, runs counter to the due
process guaranty for lack of certainty and for
its unreasonable, arbitrary and oppressive
character; and that insofar as the penalty
provided for in Section 4 of the challenged
ordinance for a subsequent conviction would,
cause the automatic cancellation of the license
of the offended party, in effect causing the
destruction of the business and loss of its
investments, there is once again a
transgression of the due process clause.
There was a plea for the issuance of
preliminary injunction and for a final judgment
declaring the above ordinance null and void
and unenforceable. The lower court on July 6,
1963 issued a writ of preliminary injunction
ordering respondent Mayor to refrain from
enforcing said Ordinance No. 4760 from and
after July 8, 1963.
In the a answer filed on August 3, 1963, there
was an admission of the personal
circumstances regarding the respondent
Mayor and of the fact that petitioners are
licensed to engage in the hotel or motel
business in the City of Manila, of the provisions
of the cited Ordinance but a denial of its
alleged nullity, whether on statutory or
constitutional grounds. After setting forth that
the petition did fail to state a cause of action
and that the challenged ordinance bears a
reasonable relation, to a proper purpose,
which is to curb immorality, a valid and proper
exercise of the police power and that only the
guests or customers not before the court could
complain of the alleged invasion of the right to
privacy and the guaranty against self
incrimination, with the assertion that the
issuance of the preliminary injunction ex
parte was contrary to law, respondent Mayor
prayed for, its dissolution and the dismissal of
the petition.
Instead of evidence being offered by both
parties, there was submitted a stipulation of
facts dated September 28, 1964, which reads:
1. That the petitioners Ermita-Malate
Hotel and Motel Operators Association,
Inc. and Hotel del Mar Inc. are duly
organized and existing under the laws
of the Philippines, both with offices in
the City of Manila, while the petitioner
Go Chin is the president and general
manager of Hotel del Mar Inc., and the
intervenor Victor Alabanza is a resident
of Baguio City, all having the capacity
to sue and be sued;
2. That the respondent Mayor is the
duly elected and incumbent City Mayor
and chief executive of the City of
Manila charged with the general power
and duty to enforce ordinances of the
City of Manila and to give the
necessary orders for the faithful
execution and enforcement of such
ordinances;
3. That the petitioners are duly
licensed to engage in the business of
operating hotels and motels in Malate
and Ermita districts in Manila;
4. That on June 13, 1963, the Municipal
Board of the City of Manila enacted
Ordinance No. 4760, which was
approved on June 14, 1963, by Vice-
Mayor Herminio Astorga, then the
acting City Mayor of Manila, in the
absence of the respondent regular City
Mayor, amending sections 661, 662,
668-a, 668-b and 669 of the
compilation of the ordinances of the
City of Manila besides inserting therein
three new sections. This ordinance is
similar to the one vetoed by the
respondent Mayor (Annex A) for the
 reasons stated in its 4th Indorsement
dated February 15, 1963 (Annex B);
5. That the explanatory note signed by
then Councilor Herminio Astorga was
submitted with the proposed ordinance
(now Ordinance 4760) to the Municipal
Board, copy of which is attached hereto
as Annex C;
6. That the City of Manila derived in
1963 an annual income of P101,904.05
from license fees paid by the 105
hotels and motels (including herein
petitioners) operating in the City of
Manila.1wph1.t been the accepted standards of constitutional
Thereafter came a memorandum for
respondent on January 22, 1965, wherein
stress was laid on the presumption of the
validity of the challenged ordinance, the
burden of showing its lack of conformity to the
Constitution resting on the party who assails
it, citing not only U.S. v. Salaveria, but
likewise applicable American authorities. Such
a memorandum likewise refuted point by point
the arguments advanced by petitioners
against its validity. Then barely two weeks
later, on February 4, 1965, the memorandum
for petitioners was filed reiterating in detail
what was set forth in the petition, with
citations of what they considered to be
applicable American authorities and praying
for a judgment declaring the challenged
ordinance "null and void and unenforceable"
and making permanent the writ of preliminary
injunction issued.
After referring to the motels and hotels, which
are members of the petitioners association,
and referring to the alleged constitutional
questions raised by the party, the lower court
observed: "The only remaining issue here
being purely a question of law, the parties,
with the nod of the Court, agreed to file
memoranda and thereafter, to submit the case
for decision of the Court." It does appear
obvious then that without any evidence
submitted by the parties, the decision passed
upon the alleged infirmity on constitutional
grounds of the challenged ordinance,
dismissing as is undoubtedly right and proper
the untenable objection on the alleged lack of
authority of the City of Manila to regulate
motels, and came to the conclusion that "the
challenged Ordinance No. 4760 of the City of
Manila, would be unconstitutional and,
therefore, null and void." It made permanent
the preliminary injunction issued against
respondent Mayor and his agents "to restrain
him from enforcing the ordinance in question."
Hence this appeal.
As noted at the outset, the judgment must be
reversed. A decent regard for constitutional
doctrines of a fundamental character ought to
have admonished the lower court against such
a sweeping condemnation of the challenged
ordinance. Its decision cannot be allowed to
stand, consistently with what has hitherto
adjudication, in both procedural and
substantive aspects.
Primarily what calls for a reversal of such a
decision is the absence of any evidence to
offset the presumption of validity that
attaches to a challenged statute or ordinance.
As was expressed categorically by Justice
Malcolm: "The presumption is all in favor of
validity x x x . The action of the elected
representatives of the people cannot be lightly
set aside. The councilors must, in the very
nature of things, be familiar with the
necessities of their particular municipality and
with all the facts and circumstances which
surround the subject and necessitate action.
The local legislative body, by enacting the
ordinance, has in effect given notice that the
regulations are essential to the well being of
the people x x x . The Judiciary should not
lightly set aside legislative action when there
is not a clear invasion of personal or property
rights under the guise of police regulation.2
It admits of no doubt therefore that there
being a presumption of validity, the necessity
for evidence to rebut it is unavoidable, unless
the statute or ordinance is void on its face
which is not the case here. The principle has
been nowhere better expressed than in the
leading case of O'Gorman & Young v. Hartford
Fire Insurance Co.,3 where the American
Supreme Court through Justice Brandeis
tersely and succinctly summed up the matter
thus: The statute here questioned deals with
a subject clearly within the scope of the police
power. We are asked to declare it void on the
ground that the specific method of regulation
prescribed is unreasonable and hence
deprives the plaintiff of due process of law. As
underlying questions of fact may condition the
constitutionality of legislation of this
character, the resumption of constitutionality
must prevail in the absence of some factual
foundation of record for overthrowing the
statute." No such factual foundation being laid
in the present case, the lower court deciding
the matter on the pleadings and the
stipulation of facts, the presumption of validity
must prevail and the judgment against the
ordinance set aside.
Nor may petitioners assert with plausibility
that on its face the ordinance is fatally
defective as being repugnant to the due
process clause of the Constitution. The mantle
of protection associated with the due process
guaranty does not cover petitioners. This
particular manifestation of a police power
measure being specifically aimed to safeguard
public morals is immune from such imputation
of nullity resting purely on conjecture and
unsupported by anything of substance. To
hold otherwise would be to unduly restrict and
narrow the scope of police power which has
been properly characterized as the most
essential, insistent and the least limitable of
powers,4extending as it does "to all the great
public needs."5 It would be, to paraphrase
another leading decision, to destroy the very
purpose of the state if it could be deprived or
allowed itself to be deprived of its competence
to promote public health, public morals, public
safety and the genera welfare.6 Negatively
put, police power is "that inherent and plenary
power in the State which enables it to prohibit
all that is hurt full to the comfort, safety, and
welfare of society.7
There is no question but that the challenged
ordinance was precisely enacted to minimize
certain practices hurtful to public morals. The
explanatory note of the Councilor Herminio
Astorga included as annex to the stipulation of
facts, speaks of the alarming increase in the
rate of prostitution, adultery and fornication in
Manila traceable in great part to the 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." The
challenged ordinance then proposes to check
the clandestine harboring of transients and
guests of these establishments by requiring
these transients and guests to fill up a
registration form, prepared for the purpose, in
a lobby open to public view at all times, and
by introducing several other amendatory
provisions calculated to shatter the privacy
that characterizes the registration of
transients and guests." Moreover, the increase
in the licensed fees was intended to
discourage "establishments of the kind from
operating for purpose other than legal" and at
the same time, to increase "the income of the
city government." It would appear therefore
that the stipulation of facts, far from
sustaining any attack against the validity of
the ordinance, argues eloquently for it.
It is a fact worth noting that this Court has
invariably stamped with the seal of its
approval, ordinances punishing vagrancy and
classifying a pimp or procurer as a
vagrant;8 provide a license tax for and
regulating the maintenance or operation of
public dance halls;9 prohibiting
gambling; prohibiting
10
jueteng;11 and
monte; prohibiting playing of panguingui on
12
days other than Sundays or legal
holidays;13 prohibiting the operation of pinball
machines;14 and prohibiting any person from
keeping, conducting or maintaining an opium
joint or visiting a place where opium is smoked
or otherwise used,15 all of which are intended
to protect public morals.
On the legislative organs of the government,
whether national or local, primarily rest the
exercise of the police power, which, it cannot
be too often emphasized, is the power to
prescribe regulations to promote the health,
morals, peace, good order, safety and general
welfare of the people. In view of the
requirements of due process, equal protection
and other applicable constitutional guaranties
however, the exercise of such police power
insofar as it may affect the life, liberty or
property of any person is subject to judicial
inquiry. Where such exercise of police power
may be considered as either capricious,
whimsical, unjust or unreasonable, a denial of
due process or a violation of any other
applicable constitutional guaranty may call for
correction by the courts.
We are thus led to considering the insistent,
almost shrill tone, in which the objection is
raised to the question of due process.16 There
is no controlling and precise definition of due
process. It furnishes though a standard to
which the governmental action should
conform in order that deprivation of life,
liberty or property, in each appropriate case,
be valid. What then is the standard of due
process which must exist both as a procedural
and a substantive requisite to free the
challenged ordinance, or any governmental
action for that matter, from the imputation of
legal infirmity sufficient to spell its doom? It is
responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively
put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process
requirement, official action, to paraphrase
Cardozo, must not outrun the bounds of
reason and result in sheer oppression. Due
process is thus hostile to any official action
marred by lack of reasonableness. Correctly it
has been identified as freedom from
arbitrariness. It is the embodiment of the
sporting idea of fair play.17 It exacts fealty "to
those strivings for justice" and judges the act
of officialdom of whatever branch "in the light
of reason drawn from considerations of
fairness that reflect [democratic] traditions of
legal and political thought."18 It is not a
narrow or "technical conception with fixed
content unrelated to time, place and
circumstances,"19 decisions based on such a
clause requiring a "close and perceptive
inquiry into fundamental principles of our
society."20 Questions of due process are not to
be treated narrowly or pedantically in slavery
to form or phrases.21
It would thus be an affront to reason to
stigmatize an ordinance enacted precisely to
meet what a municipal lawmaking body
considers an evil of rather serious proportion
an arbitrary and capricious exercise of
authority. It would seem that what should be
deemed unreasonable and what would
amount to an abdication of the power to
govern is inaction in the face of an admitted
deterioration of the state of public morals. To
be more specific, the Municipal Board of the
City of Manila felt the need for a remedial
measure. It provided it with the enactment of
the challenged ordinance. A strong case must
be found in the records, and, as has been set
forth, none is even attempted here to attach
to an ordinance of such character the taint of
nullity for an alleged failure to meet the due
process requirement. Nor does it lend any
semblance even of deceptive plausibility to
petitioners' indictment of Ordinance No. 4760
on due process grounds to single out such
features as the increased fees for motels and
hotels, the curtailment of the area of freedom
to contract, and, in certain particulars, its
alleged vagueness.
Admittedly there was a decided increase of the
annual license fees provided for by the
challenged ordinance for hotels and motels,
150% for the former and over 200% for the
latter, first-class motels being required to pay
a P6,000 annual fee and second-class motels,
P4,500 yearly. It has been the settled law
however, as far back as 1922 that municipal
license fees could be classified into those
imposed for regulating occupations or regular
enterprises, for the regulation or restriction of
non-useful occupations or enterprises and for
revenue purposes only.22 As was explained
more in detail in the above Cu Unjieng case:
(2) Licenses for non-useful occupations are
also incidental to the police power and the
right to exact a fee may be implied from the
power to license and regulate, but in fixing
amount of the license fees the municipal
corporations are allowed a much wider
discretion in this class of cases than in the
former, and aside from applying the well-
known legal principle that municipal
ordinances must not be unreasonable,
oppressive, or tyrannical, courts have, as a
general rule, declined to interfere with such
discretion. The desirability of imposing
restraint upon the number of persons who
might otherwise engage in non-useful
enterprises is, of course, generally an
important factor in the determination of the
amount of this kind of license fee. Hence
license fees clearly in the nature of privilege
taxes for revenue have frequently been
upheld, especially in of licenses for the sale of
liquors. In fact, in the latter cases the fees
have rarely been declared unreasonable.23
Moreover in the equally leading case of Lutz v.
Araneta24 this Court affirmed the doctrine
earlier announced by the American Supreme
Court that taxation may be made to
implement the state's police power. Only the
other day, this Court had occasion to affirm
that the broad taxing authority conferred by
the Local Autonomy Act of 1959 to cities and
municipalities is sufficiently plenary to cover a
wide range of subjects with the only limitation
that the tax so levied is for public purposes,
just and uniform.25
As a matter of fact, even without reference to
the wide latitude enjoyed by the City of Manila
in imposing licenses for revenue, it has been
explicitly held in one case that "much
discretion is given to municipal corporations in
determining the amount," here the license fee
of the operator of a massage clinic, even if it
were viewed purely as a police power
measure.26 The discussion of this particular
matter may fitly close with this pertinent
citation from another decision of significance:
"It is urged on behalf of the plaintiffs-
appellees that the enforcement of the
ordinance could deprive them of their lawful
occupation and means of livelihood because
they can not rent stalls in the public markets.
But it appears that plaintiffs are also dealers
in refrigerated or cold storage meat, the sale
of which outside the city markets under
certain conditions is permitted x x x . And
surely, the mere fact, that some individuals in
the community may be deprived of their
present business or a particular mode of
earning a living cannot prevent the exercise of
the police power. As was said in a case,
persons licensed to pursue occupations which
may in the public need and interest be
affected by the exercise of the police power
embark in these occupations subject to the
disadvantages which may result from the legal
exercise of that power."27
Nor does the restriction on the freedom to
contract, insofar as the challenged ordinance
makes it unlawful for the owner, manager,
keeper or duly authorized representative of
any hotel, motel, lodging house, tavern,
common inn or the like, to lease or rent room
or portion thereof more than twice every 24
hours, with a proviso that in all cases full
payment shall be charged, call for a different
conclusion. Again, such a limitation cannot be
viewed as a transgression against the
command of due process. It is neither
unreasonable nor arbitrary. Precisely it was
intended to curb the opportunity for the
immoral or illegitimate use to which such
premises could be, and, according to the
explanatory note, are being devoted. How
could it then be arbitrary or oppressive when
there appears a correspondence between the
undeniable existence of an undesirable
situation and the legislative attempt at
correction. Moreover, petitioners cannot be
unaware that every regulation of conduct
amounts to curtailment of liberty which as
pointed out by Justice Malcolm cannot be
absolute. Thus: "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 x x x The
liberty of the citizen 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."28
A similar observation was made by Justice
Laurel: "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 x x x 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.29
It is noteworthy that the only decision of this
Court nullifying legislation because of undue
deprivation of freedom to contract, People v.
Pomar,30 no longer "retains its virtuality as a
living principle. The policy of laissez faire has
to some extent given way to the assumption
by the government of the right of intervention
even in contractual relations affected with
public interest.31 What may be stressed
sufficiently is that if the liberty involved were
freedom of the mind or the person, the
standard for the validity of governmental acts
is much more rigorous and exacting, but
where the liberty curtailed affects at the most
rights of property, the permissible scope of
regulatory measure is wider. 32 How justify
then the allegation of a denial of due process?
arguments pressed with such vigor and
determination, the attack against the validity
of the challenged ordinance cannot be
considered a success. Far from it. Respect for
constitutional law principles so uniformly held
and so uninterruptedly adhered to by this
Court compels a reversal of the appealed
decision.

Lastly, there is the attempt to impugn the Wherefore, the judgment of the lower court is
ordinance on another due process ground by reversed and the injunction issued lifted
invoking the principles of vagueness or forthwith. With costs.
uncertainty. It would appear from a recital in
the petition itself that what seems to be the Reyes, J.B.L., Makalintal, Bengzon, J.P.,
gravamen of the alleged grievance is that the Zaldivar, Sanchez, Castro and Angeles, JJ.,
provisions are too detailed and specific rather concur.
than vague or uncertain. Petitioners, however, Concepcion, C.J. and Dizon, J., are on leave.
point to the requirement that a guest should
give the name, relationship, age and sex of
the companion or companions as indefinite
and uncertain in view of the necessity for
determining whether the companion or
companions referred to are those arriving with
the customer or guest at the time of the
registry or entering the room With him at
about the same time or coming at any
indefinite time later to join him; a proviso in
one of its sections which cast doubt as to
whether the maintenance of a restaurant in a
motel is dependent upon the discretion of its
owners or operators; another proviso which
from their standpoint would require a guess as
to whether the "full rate of payment" to be
charged for every such lease thereof means a
full day's or merely a half-day's rate. It may
be asked, do these allegations suffice to
render the ordinance void on its face for
alleged vagueness or uncertainty? To ask the
question is to answer it. From Connally v.
General Construction Co.33 to Adderley v.
Florida,34 the principle has been consistently
upheld that what makes a statute susceptible
to such a charge is an enactment either
forbidding or requiring the doing of an act that
men of common intelligence must necessarily
guess at its meaning and differ as to its
application. Is this the situation before us? A
citation from Justice Holmes would prove
illuminating: "We agree to all the generalities
about not supplying criminal laws with what
they omit but there is no canon against using
common sense in construing laws as saying
what they obviously mean."35

That is all then that this case presents. As it

stands, with all due allowance for the
[G.R. NO. 122846 : January 20, 2009]
WHITE LIGHT CORPORATION, TITANIUM
CORPORATION and STA. MESA TOURIST
& DEVELOPMENT
CORPORATION, Petitioners, v. CITY OF
MANILA, represented by DE CASTRO,
MAYOR ALFREDO S. LIM, Respondent.
DECISION
TINGA, J.:
With another city ordinance of Manila also
principally involving the tourist district as
subject, the Court is confronted anew with the
incessant clash between government power
and individual liberty in tandem with the
archetypal tension between law and morality.
In City of Manila v. Laguio, Jr., the Court
1 admission shall mean admittance and
affirmed the nullification of a city ordinance
barring the operation of motels and inns,
among other establishments, within the
Ermita-Malate area. The petition at bar assails
a similarly-motivated city ordinance that
prohibits those same establishments from
offering short-time admission, as well as pro-
rated or "wash up" rates for such abbreviated
stays. Our earlier decision tested the city
ordinance against our sacred constitutional
rights to liberty, due process and equal
protection of law. The same parameters apply
to the present petition.
This Petition2 under Rule 45 of the Revised
Rules on Civil Procedure, which seeks the
reversal of the Decision3 in C.A.-G.R. S.P. No.
33316 of the Court of Appeals, challenges the
validity of Manila City Ordinance No. 7774
entitled, "An Ordinance Prohibiting Short-Time
Admission, Short-Time Admission Rates, and
Wash-Up Rate Schemes in Hotels, Motels,
Inns, Lodging Houses, Pension Houses, and
Similar Establishments in the City of Manila"
(the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S.
Lim (Mayor Lim) signed into law the
Ordinance.4 The Ordinance is reproduced in
full, hereunder:
SECTION 1. Declaration of Policy. It is hereby
the declared policy of the City Government to
protect the best interest, health and welfare,
and the morality of its constituents in general
and the youth in particular.
SEC. 2. Title. This ordinance shall be known as
"An Ordinance" prohibiting short time
admission in hotels, motels, lodging houses,
pension houses and similar establishments in
the City of Manila.
SEC. 3. Pursuant to the above policy, short-
time admission and rate [sic], wash-up rate or
other similarly concocted terms, are hereby
prohibited in hotels, motels, inns, lodging
houses, pension houses and similar
establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time
charging of room rate for less than twelve (12)
hours at any given time or the renting out of
rooms more than twice a day or any other
term that may be concocted by owners or
managers of said establishments but would
mean the same or would bear the same
meaning.
SEC. 5. Penalty Clause. Any person or
corporation who shall violate any provision of
this ordinance shall upon conviction thereof be
punished by a fine of Five Thousand
(P5,000.00) Pesos or imprisonment for a
period of not exceeding one (1) year or both
such fine and imprisonment at the discretion
of the court; Provided, That in case of [a]
juridical person, the president, the manager,
or the persons in charge of the operation
thereof shall be liable: Provided, further, That
in case of subsequent conviction for the same
offense, the business license of the guilty
party shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions
of City ordinances not consistent with or
contrary to this measure or any portion hereof
are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take
effect immediately upon approval.
Enacted by the city Council of Manila at its
regular session today, November 10, 1992.
Approved by His Honor, the Mayor on
December 3, 1992.
On December 15, 1992, the Malate Tourist
and Development Corporation (MTDC) filed a
complaint for declaratory relief with prayer for
a writ of preliminary injunction and/or
temporary restraining order ( TRO)5 with the
Regional Trial Court (RTC) of Manila, Branch 9
impleading as defendant, herein respondent
City of Manila (the City) represented by Mayor
Lim.6 MTDC prayed that the Ordinance,
insofar as it includes motels and inns as
among its prohibited establishments, be
declared invalid and unconstitutional. MTDC
claimed that as owner and operator of the
Victoria Court in Malate, Manila it was
authorized by Presidential Decree (P.D.) No.
259 to admit customers on a short time basis
as well as to charge customers wash up rates
for stays of only three hours.
On December 21, 1992, petitioners White
Light Corporation (WLC), Titanium
Corporation (TC) and Sta. Mesa Tourist and
Development Corporation (STDC) filed a
motion to intervene and to admit attached
complaint-in-intervention7 on the ground that
the Ordinance directly affects their business
interests as operators of drive-in-hotels and
motels in Manila.8 The three companies are
components of the Anito Group of Companies
which owns and operates several hotels and
motels in Metro Manila.9
On December 23, 1992, the RTC granted the
motion to intervene.10 The RTC also notified
the Solicitor General of the proceedings
pursuant to then Rule 64, Section 4 of the
Rules of Court. On the same date, MTDC
moved to withdraw as plaintiff.11
On December 28, 1992, the RTC granted
MTDC's motion to withdraw.12 The RTC issued
a TRO on January 14, 1993, directing the City
to cease and desist from enforcing the
Ordinance.13 The City filed an Answer dated
January 22, 1993 alleging that the Ordinance
is a legitimate exercise of police power.14
On February 8, 1993, the RTC issued a writ of
preliminary injunction ordering the city to
desist from the enforcement of the
Ordinance.15 A month later, on March 8, 1993,
the Solicitor General filed his Comment
arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC
and STDC agreed to submit the case for
decision without trial as the case involved a
purely legal question.16 On October 20, 1993,
the RTC rendered a decision declaring the
Ordinance null and void. The dispositive
portion of the decision reads:
WHEREFORE, in view of all the foregoing,
[O]rdinance No. 7774 of the City of Manila is
hereby declared null and void.
Accordingly, the preliminary injunction
heretofor issued is hereby made permanent.
SO ORDERED.17
The RTC noted that the ordinance "strikes at
the personal liberty of the individual
guaranteed and jealously guarded by the
Constitution."18 Reference was made to the
provisions of the Constitution encouraging
private enterprises and the incentive to
needed investment, as well as the right to
operate economic enterprises. Finally, from
the observation that the illicit relationships the
Ordinance sought to dissuade could
nonetheless be consummated by simply
paying for a 12-hour stay, the RTC likened the
law to the ordinance annulled in Ynot v.
Intermediate Appellate Court,19 where the
legitimate purpose of preventing
indiscriminate slaughter of carabaos was
sought to be effected through an inter-
province ban on the transport of carabaos and
carabeef.
The City later filed a Petition for Review
on Certiorariwith the Supreme Court.20 The
petition was docketed as G.R. No. 112471.
However in a resolution dated January 26,
1994, the Court treated the petition as a
Petition for Certiorariand referred the petition
to the Court of Appeals.21
Before the Court of Appeals, the City asserted
that the Ordinance is a valid exercise of police
power pursuant to Section 458 (4)(iv) of the
Local Government Code which confers on
cities, among other local government units,
the power:
[To] 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.22
The Ordinance, it is argued, is also a valid
exercise of the power of the City under Article
III, Section 18(kk) of the Revised Manila
Charter, thus:
"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 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.23
Petitioners argued that the Ordinance is
unconstitutional and void since it violates the
right to privacy and the freedom of
movement; it is an invalid exercise of police
power; and it is an unreasonable and
oppressive interference in their business.
The Court of Appeals reversed the decision of
the RTC and affirmed the constitutionality of
the Ordinance.24 First, it held that the
Ordinance did not violate the right to privacy
or the freedom of movement, as it only
penalizes the owners or operators of
establishments that admit individuals for short
time stays. Second, the virtually limitless
reach of police power is only constrained by
having a lawful object obtained through a
lawful method. The lawful objective of the
Ordinance is satisfied since it aims to curb
immoral activities. There is a lawful method
since the establishments are still allowed to
operate. Third, the adverse effect on the
establishments is justified by the well-being of
its constituents in general. Finally, as held
in Ermita-Malate Motel Operators Association
v. City Mayor of Manila,liberty is regulated by
law.
TC, WLC and STDC come to this Court via
Petition for Review on Certiorari .25 In their
petition and Memorandum, petitioners in
essence repeat the assertions they made
before the Court of Appeals. They contend
that the assailed Ordinance is an invalid
exercise of police power.
II.
We must address the threshold issue of
petitioners' standing. Petitioners allege that as
owners of establishments offering "wash-up"
rates, their business is being unlawfully
interfered with by the Ordinance. However,
petitioners also allege that the equal
protection rights of their clients are also being
interfered with. Thus, the crux of the matter is
whether or not these establishments have the
requisite standing to plead for protection of
their patrons' equal protection rights.
Standing or locus standi is the ability of a
party to demonstrate to the court sufficient
connection to and harm from the law or action
challenged to support that party's
participation in the case. More importantly,
the doctrine of standing is built on the
principle of separation of powers,26 sparing as
it does unnecessary interference or
invalidation by the judicial branch of the
actions rendered by its co-equal branches of
government.
The requirement of standing is a core
component of the judicial system derived
directly from the Constitution.27 The
constitutional component of standing doctrine
incorporates concepts which concededly are
not susceptible of precise definition.28 In this
jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious
cause, as well as the standard test for a
petitioner's standing.29 In a similar vein, the
United States Supreme Court reviewed and
elaborated on the meaning of the three
constitutional standing requirements of injury,
causation, and redressability in Allen v.
Wright.30
Nonetheless, the general rules on standing
admit of several exceptions such as the
overbreadth doctrine, taxpayer suits, third
party standing and, especially in the
Philippines, the doctrine of transcendental
importance.31
For this particular set of facts, the concept of
third party standing as an exception and the
overbreadth doctrine are appropriate.
In Powers v. Ohio,32 the United States
Supreme Court wrote that: "We have
recognized the right of litigants to bring
actions on behalf of third parties, provided
three important criteria are satisfied: the
litigant must have suffered an 'injury-in-fact,'
thus giving him or her a "sufficiently concrete
interest" in the outcome of the issue in
dispute; the litigant must have a close relation
to the third party; and there must exist some
hindrance to the third party's ability to protect
his or her own interests."33 Herein, it is clear
that the business interests of the petitioners
are likewise injured by the Ordinance. They
rely on the patronage of their customers for
their continued viability which appears to be
threatened by the enforcement of the
Ordinance. The relative silence in
constitutional litigation of such special interest
groups in our nation such as the American
Civil Liberties Union in the United States may
also be construed as a hindrance for
customers to bring suit.34
American jurisprudence is replete with
examples where parties-in-interest were
allowed standing to advocate or invoke the
fundamental due process or equal protection
claims of other persons or classes of persons
injured by state action. In Griswold v.
Connecticut,35the United States Supreme
Court held that physicians had standing to
challenge a reproductive health statute that
would penalize them as accessories as well as
to plead the constitutional protections
available to their patients. The Court held
that:
"The rights of husband and wife, pressed here,
are likely to be diluted or adversely affected
unless those rights are considered in a suit
involving those who have this kind of
confidential relation to them."36
An even more analogous example may be
found in Craig v. Boren,37 wherein the United
States Supreme Court held that a licensed
beverage vendor has standing to raise the
equal protection claim of a male customer
challenging a statutory scheme prohibiting the
sale of beer to males under the age of 21 and
to females under the age of 18. The United
States High Court explained that the vendors
had standing "by acting as advocates of the
rights of third parties who seek access to their
market or function."38
Assuming arguendo that petitioners do not
have a relationship with their patrons for the
former to assert the rights of the latter, the
overbreadth doctrine comes into play. In
overbreadth analysis, challengers to
government action are in effect permitted to
raise the rights of third parties. Generally
applied to statutes infringing on the freedom
of speech, the overbreadth doctrine applies
when a statute needlessly restrains even
constitutionally guaranteed rights.39 In this
case, the petitioners claim that the Ordinance
makes a sweeping intrusion into the right to
liberty of their clients. We can see that based
on the allegations in the petition, the
Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a
right to assert the constitutional rights of their
clients to patronize their establishments for a
"wash-rate" time frame.
III.
To students of jurisprudence, the facts of this
case will recall to mind not only the recent City
of Manila ruling, but our 1967 decision
in Ermita-Malate Hotel and Motel Operations
Association, Inc., v. Hon. City Mayor of
Manila.40 Ermita-Malate concerned the City
ordinance requiring patrons to fill up a
prescribed form stating personal information
such as name, gender, nationality, age,
address and occupation before they could be
admitted to a motel, hotel or lodging house.
This earlier ordinance was precisely enacted to
minimize certain practices deemed harmful to
public morals. A purpose similar to the
annulled ordinance in City of Manila which
sought a blanket ban on motels, inns and
similar establishments in the Ermita-Malate
area. However, the constitutionality of the
ordinance in Ermita-Malate was sustained by
the Court.
The common thread that runs through those
decisions and the case at bar goes beyond the
singularity of the localities covered under the
respective ordinances. All three ordinances
were enacted with a view of regulating public
morals including particular illicit activity in
transient lodging establishments. This could
be described as the middle case, wherein
there is no wholesale ban on motels and hotels
but the services offered by these
establishments have been severely restricted.
At its core, this is another case about the
extent to which the State can intrude into and
regulate the lives of its citizens.
The test of a valid ordinance is well
established. A long line of decisions
including City of Manila 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 pass 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.41
The Ordinance prohibits two specific and
distinct business practices, namely wash rate
admissions and renting out a room more than
twice a day. The ban is evidently sought to be
rooted in the police power as conferred on
local government units by the Local
Government Code through such implements
as the general welfare clause.
A.
Police power, while incapable of an exact
definition, has been purposely veiled in
general terms to underscore its
comprehensiveness to meet all exigencies and
provide enough room for an efficient and
flexible response as the conditions
warrant.42 Police power is based upon the
concept of necessity of the State and its
corresponding right to protect itself and its
people.43 Police power has been used as
justification for numerous and varied actions
by the State. These range from the regulation
of dance halls,44 movie theaters,45gas
stations and cockpits. The awesome scope
46 47
of police power is best demonstrated by the
fact that in its hundred or so years of presence
in our nation's legal system, its use has rarely
been denied.
The apparent goal of the Ordinance is to
minimize if not eliminate the use of the
covered establishments for illicit sex,
prostitution, drug use and alike. These goals,
by themselves, are unimpeachable and
certainly fall within the ambit of the police
power of the State. Yet the desirability of
these ends do not sanctify any and all means
for their achievement. Those means must
align with the Constitution, and our emerging
sophisticated analysis of its guarantees to the
people. The Bill of Rights stands as a rebuke
to the seductive theory of Macchiavelli, and,
sometimes even, the political majorities
animated by his cynicism.
Even as we design the precedents that
establish the framework for analysis of due
process or equal protection questions, the
courts are naturally inhibited by a due
deference to the co-equal branches of
government as they exercise their political
functions. But when we are compelled to
nullify executive or legislative actions, yet
another form of caution emerges. If the Court
were animated by the same passing fancies or
turbulent emotions that motivate many
political decisions, judicial integrity is
compromised by any perception that the
judiciary is merely the third political branch of
government. We derive our respect and good
standing in the annals of history by acting as
judicious and neutral arbiters of the rule of
law, and there is no surer way to that end than
through the development of rigorous and
sophisticated legal standards through which
the courts analyze the most fundamental and
far-reaching constitutional questions of the
day.
B.
The primary constitutional question that
confronts us is one of due process, as
guaranteed under Section 1, Article III of the
Constitution. Due process evades a precise
definition.48The purpose of the guaranty is to
prevent arbitrary governmental encroachment
against the life, liberty and property of
individuals. The due process guaranty serves
as a protection against arbitrary regulation or
seizure. Even corporations and partnerships
are protected by the guaranty insofar as their
property is concerned.
The due process guaranty has traditionally
been interpreted as imposing two related but
distinct restrictions on government,
"procedural due process" and "substantive
due process." Procedural due process refers to
the procedures that the government must
follow before it deprives a person of life,
liberty, or property.49 Procedural due process
concerns itself with government action
adhering to the established process when it
makes an intrusion into the private sphere.
Examples range from the form of notice given
to the level of formality of a hearing.
If due process were confined solely to its
procedural aspects, there would arise absurd
situation of arbitrary government action,
provided the proper formalities are followed.
Substantive due process completes the
protection envisioned by the due process
clause. It inquires whether the government
has sufficient justification for depriving a
person of life, liberty, or property.50
The question of substantive due process,
moreso than most other fields of law, has
reflected dynamism in progressive legal
thought tied with the expanded acceptance of
fundamental freedoms. Police power,
traditionally awesome as it may be, is now
confronted with a more rigorous level of
analysis before it can be upheld. The vitality
though of constitutional due process has not
been predicated on the frequency with which
it has been utilized to achieve a liberal result
for, after all, the libertarian ends should
sometimes yield to the prerogatives of the
State. Instead, the due process clause has
acquired potency because of the sophisticated
methodology that has emerged to determine
the proper metes and bounds for its
application.
C.
The general test of the validity of an ordinance
on substantive due process grounds is best
tested when assessed with the evolved
footnote 4 test laid down by the U.S. Supreme
Court in U.S. v. Carolene Products.51 Footnote
4 of the Carolene Products case acknowledged
that the judiciary would defer to the
legislature unless there is a discrimination
against a "discrete and insular" minority or
infringement of a "fundamental
right."52 Consequently, two standards of
judicial review were established: strict
scrutiny for laws dealing with freedom of the
mind or restricting the political process, and
the rational basis standard of review for
economic legislation.
A third standard, denominated as heightened
or immediate scrutiny, was later adopted by
the U.S. Supreme Court for evaluating
classifications based on gender53 and
legitimacy. Immediate scrutiny was adopted
54
by the U.S. Supreme Court in Craig,55 after
the Court declined to do so in Reed v.
Reed.56 While the test may have first been
articulated in equal protection analysis, it has
in the United States since been applied in all
substantive due process cases as well.
We ourselves have often applied the rational
basis test mainly in analysis of equal
protection challenges.57 Using the rational
basis examination, laws or ordinances are
upheld if they rationally further a legitimate
governmental interest.58 Under intermediate
review, governmental interest is extensively
examined and the availability of less
restrictive measures is considered.59 Applying
strict scrutiny, the focus is on the presence of
compelling, rather than substantial,
governmental interest and on the absence of
less restrictive means for achieving that
interest.
In terms of judicial review of statutes or
ordinances, strict scrutiny refers to the
standard for determining the quality and the
amount of governmental interest brought to
justify the regulation of fundamental
freedoms.60 Strict scrutiny is used today to
test the validity of laws dealing with the
regulation of speech, gender, or race as well
as other fundamental rights as expansion from
its earlier applications to equal
protection.61 The United States Supreme
Court has expanded the scope of strict
scrutiny to protect fundamental rights such as
suffrage,62 judicial access63 and interstate
travel.64
If we were to take the myopic view that an
Ordinance should be analyzed strictly as to its
effect only on the petitioners at bar, then it
would seem that the only restraint imposed by
the law which we are capacitated to act upon
is the injury to property sustained by the
petitioners, an injury that would warrant the
application of the most deferential standard -
the rational basis test. Yet as earlier stated,
we recognize the capacity of the petitioners to
invoke as well the constitutional rights of their
patrons - those persons who would be
deprived of availing short time access or
wash-up rates to the lodging establishments
in question.
Viewed cynically, one might say that the
infringed rights of these customers were are
trivial since they seem shorn of political
consequence. Concededly, these are not the
sort of cherished rights that, when proscribed,
would impel the people to tear up their
cedulas. Still, the Bill of Rights does not
shelter gravitas alone. Indeed, it is those
"trivial" yet fundamental freedoms - which the
people reflexively exercise any day without
the impairing awareness of their constitutional
consequence - that accurately reflect the
degree of liberty enjoyed by the people.
Liberty, as integrally incorporated as a
fundamental right in the Constitution, is not a
Ten Commandments-style enumeration of
what may or what may not be done; but rather
an atmosphere of freedom where the people
do not feel labored under a Big Brother
presence as they interact with each other,
their society and nature, in a manner innately
understood by them as inherent, without
doing harm or injury to others.
D.
The rights at stake herein fall within the same
fundamental rights to liberty which we upheld
in City of Manila v. Hon. Laguio, Jr. We
expounded on that most primordial of rights,
thus:
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."[65] 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.[66]
The U.S. Supreme Court in the case of Roth v.
Board of Regents, 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.67 [Citations omitted]
It cannot be denied that the primary animus
behind the ordinance is the curtailment of
sexual behavior. The City asserts before this
Court that the subject establishments "have
gained notoriety as venue of 'prostitution,
adultery and fornications' in Manila since they
'provide the necessary atmosphere for
clandestine entry, presence and exit and thus
became the 'ideal haven for prostitutes and
thrill-seekers.' "68 Whether or not this
depiction of a mise-en-scene of vice is
accurate, it cannot be denied that legitimate
sexual behavior among willing married or
consenting single adults which is
constitutionally protected69 will be curtailed as
well, as it was in the City of Manila case. Our
holding therein retains significance for our
purposes:
The concept of liberty compels respect for the
individual whose claim to privacy and
interference demands respect. As the case
of Morfe v. Mutuc, 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.70
We cannot discount other legitimate activities
which the Ordinance would proscribe or
impair. There are very legitimate uses for a
wash rate or renting the room out for more
than twice a day. Entire families are known to
choose pass the time in a motel or hotel whilst
the power is momentarily out in their homes.
In transit passengers who wish to wash up and
rest between trips have a legitimate purpose
for abbreviated stays in motels or hotels.
Indeed any person or groups of persons in
need of comfortable private spaces for a span
of a few hours with purposes other than
having sex or using illegal drugs can
legitimately look to staying in a motel or hotel
as a convenient alternative.
E.
That the Ordinance prevents the lawful uses of
a wash rate depriving patrons of a product and
the petitioners of lucrative business ties in
with another constitutional requisite for the
legitimacy of the Ordinance as a police power
measure. It must appear that the interests of
the public generally, as distinguished from
those of a particular class, require an
interference with private rights and the means
must be reasonably necessary for the
accomplishment of the purpose and not
unduly oppressive of private rights.71 It must
also be evident that no other alternative for
the accomplishment of the purpose less
intrusive of private rights can work. More
importantly, a reasonable relation must exist
between the purposes of the 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.72
Lacking a concurrence of these requisites, the
police measure shall be struck down as an
arbitrary intrusion into private rights. As held
in Morfe v. Mutuc, the exercise of police power
is subject to judicial review when life, liberty
or property is affected.73 However, this is not
in any way meant to take it away from the
vastness of State police power whose exercise
enjoys the presumption of validity.74
Similar to the Comelec resolution requiring
newspapers to donate advertising space to
candidates, this Ordinance is a blunt and
heavy instrument.75 The Ordinance makes no
distinction between places frequented by
patrons engaged in illicit activities and patrons
engaged in legitimate actions. Thus it
prevents legitimate use of places where illicit
activities are rare or even unheard of. A plain
reading of section 3 of the Ordinance shows it
makes no classification of places of lodging,
thus deems them all susceptible to illicit
patronage and subject them without exception
to the unjustified prohibition.
The Court has professed its deep sentiment
and tenderness of the Ermita-Malate area, its
longtime home,76 and it is skeptical of those
who wish to depict our capital city - the Pearl
of the Orient - as a modern-day Sodom or
Gomorrah for the Third World set. Those still
steeped in Nick Joaquin-dreams of the
grandeur of Old Manila will have to accept that
Manila like all evolving big cities, will have its
problems. Urban decay is a fact of mega cities
such as Manila, and vice is a common problem
confronted by the modern metropolis
wherever in the world. The solution to such
perceived decay is not to prevent legitimate
businesses from offering a legitimate product.
Rather, cities revive themselves by offering
incentives for new businesses to sprout up
thus attracting the dynamism of individuals
that would bring a new grandeur to Manila.
The behavior which the Ordinance seeks to
curtail is in fact already prohibited and could
in fact be diminished simply by applying
existing laws. Less intrusive measures such as
curbing the proliferation of prostitutes and
drug dealers through active police work would
be more effective in easing the situation. So
would the strict enforcement of existing laws
and regulations penalizing prostitution and
drug use. These measures would have
minimal intrusion on the businesses of the
petitioners and other legitimate merchants.
Further, it is apparent that the Ordinance can
easily be circumvented by merely paying the
whole day rate without any hindrance to those
engaged in illicit activities. Moreover, drug
dealers and prostitutes can in fact collect
"wash rates" from their clientele by charging
their customers a portion of the rent for motel
rooms and even apartments.
IV.
We reiterate that individual rights may be
adversely affected only to the extent that may
fairly be required by the legitimate demands
of public interest or public welfare. The State
is a leviathan that must be restrained from
needlessly intruding into the lives of its
citizens. However well' -intentioned the
Ordinance may be, it is in effect an arbitrary
and whimsical intrusion into the rights of the
establishments as well as their patrons. The
Ordinance needlessly restrains the operation
of the businesses of the petitioners as well as
restricting the rights of their patrons without
sufficient justification. The Ordinance rashly
equates wash rates and renting out a room
more than twice a day with immorality without
accommodating innocuous intentions.
The promotion of public welfare and a sense
of morality among citizens deserves the full
endorsement of the judiciary provided that
such measures do not trample rights this
Court is sworn to protect.77 The notion that
the promotion of public morality is a function
of the State is as old as Aristotle.78 The
advancement of moral relativism as a school
of philosophy does not de-legitimize the role
of morality in law, even if it may foster wider
debate on which particular behavior to
penalize. It is conceivable that a society with
relatively little shared morality among its
citizens could be functional so long as the
pursuit of sharply variant moral perspectives
yields an adequate accommodation of
different interests.79
To be candid about it, the oft-quoted American
maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since
as explained by Calabresi, that phrase is more
accurately interpreted as meaning that efforts
to legislate morality will fail if they are widely
at variance with public attitudes about right
and wrong.80 Our penal laws, for one, are
founded on age-old moral traditions, and as
long as there are widely accepted distinctions
between right and wrong, they will remain so
oriented.
Yet the continuing progression of the human
story has seen not only the acceptance of the
right-wrong distinction, but also the advent of
fundamental liberties as the key to the
enjoyment of life to the fullest. Our democracy
is distinguished from non-free societies not
with any more extensive elaboration on our
part of what is moral and immoral, but from
our recognition that the individual liberty to
make the choices in our lives is innate, and
protected by the State. Independent and fair-
minded judges themselves are under a moral
duty to uphold the Constitution as the
embodiment of the rule of law, by reason of
their expression of consent to do so when they
take the oath of office, and because they are
entrusted by the people to uphold the law.81
Even as the implementation of moral norms
remains an indispensable complement to
governance, that prerogative is hardly
absolute, especially in the face of the norms of
due process of liberty. And while the tension
may often be left to the courts to relieve, it is
possible for the government to avoid the
constitutional conflict by employing more
judicious, less drastic means to promote
morality.
WHEREFORE, the Petition is GRANTED. The
Decision of the Court of Appeals
is REVERSED, and the Decision of the
Regional Trial Court of Manila, Branch 9,
is REINSTATED. Ordinance No. 7774 is
hereby declared UNCONSTITUTIONAL. No
pronouncement as to costs. SO ORDERED.
Republic of the Philippines of the provincial sheriff in the prison at
SUPREME COURT Calapan for having run away form the
Manila reservation.

EN BANC The return of the Solicitor-General alleges:

G.R. No. L-14078 March 7, 1919
1. That on February 1, 1917, the
RUBI, ET AL. (manguianes), plaintiffs, provincial board of Mindoro adopted
vs. resolution No. 25 which is as follows:
THE PROVINCIAL BOARD OF
MINDORO, defendant. The provincial governor, Hon. Juan
Morente, Jr., presented the following
D. R. Williams & Filemon Sotto for plaintiff. resolution:
Office of the Solicitor-General Paredes for
defendant. "Whereas several attempts and
schemes have been made for
MALCOLM, J.: the advancement of the non-
Christian people of Mindoro,
which were all a failure,
In one of the cases which denote a landmark
in American Constitutional History
(Worcester vs. Georgia [1832], 6 Pet., 515), "Whereas it has been found out
Chief Justice Marshall, the first luminary of and proved that unless some
American jurisprudence, began his opinion other measure is taken for the
(relating to the status of an Indian) with words Mangyan work of this province,
which, with a slight change in phraseology, no successful result will be
can be made to introduce the present opinion obtained toward educating
This cause, in every point of view in which these people.
it can be placed, is of the deepest interest. The
legislative power of state, the controlling "Whereas it is deemed
power of the constitution and laws, the rights necessary to obliged them to
if they have any, the political existence of a live in one place in order to
people, the personal liberty of a citizen, are all make a permanent settlement,
involved in the subject now to be considered.
"Whereas the provincial
To imitate still further the opinion of the Chief governor of any province in
Justice, we adopt his outline and proceed first, which non-Christian inhabitants
to introduce the facts and the issues, next to are found is authorized, when
give a history of the so called "non- such a course is deemed
Christians," next to compare the status of the necessary in the interest of law
"non-Christians" with that of the American and order, to direct such
Indians, and, lastly, to resolve the inhabitants to take up their
constitutional questions presented. habitation on sites on
unoccupied public lands to be
I. INTRODUCTION. selected by him and approved
by the provincial board.
This is an application for habeas corpus in
favor of Rubi and other Manguianes of the "Whereas the provincial
Province of Mindoro. It is alleged that the governor is of the opinion that
Maguianes are being illegally deprived of their the sitio of Tigbao on Lake
liberty by the provincial officials of that Naujan is a place most
province. Rubi and his companions are said to convenient for the Mangyanes
be held on the reservation established at to live on, Now, therefore be it
Tigbao, Mindoro, against their will, and one
Dabalos is said to be held under the custody "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 which they may have in the places left
forbearance and gentleness, without by them. We hereby order that no
causing inconveniences, so that those change shall be made in this respect,
who would not presently settle and and that they be allowed to retain the
who would see the good treatment and lands held by them previously so that
the protection of those already in they may cultivate them and profit
settlements would, of their own therefrom.
accord, present themselves, and it is
ordained that they be not required to xxx xxx xxx
pay taxes more than what is ordered.
Because the above has been executed LAW XIII.
in the greater part of our Indies, we
hereby order and decree that the same
THE SAME AS ABOVE.
be complied with in all the remaining
parts of the Indies, and
the encomederos shall entreat THAT THE "REDUCCIONES" BE NOT REMOVED
compliance thereof in the manner and WITHOUT ORDER OF THE KING, VICEROY, OR
form prescribed by the laws of this COURT.
title.
No governor, or magistrate, or alcalde
xxx xxx xxx mayor, or any other court, has the
right to alter or to remove
thepueblos or the reducciones once
LAW VIII.
constituted and founded, without our
express order or that of the viceroy,
Philip II at the Pardo, on December 1, president, or the royal district court,
1573. Philip III at Madrid, October 10, provided, however, that
1618. the encomenderos, priests,
or indios request such a change or
THE "REDUCCTIONES" BE MADE IN consent to it by offering or giving
ACCORDANCE WITH THE CONDITIONS OF information to that en. And, because
THIS LAW. these claims are often made for private
interests and not for those of
The places wherein the indios, we hereby order that this
the pueblos and reducciones shall be law be always complied with, otherwise
formed should have the facilities of the change will be considered
waters. lands, and mountains, ingress fraudulently obtained. The penalty of
and egress, husbandry and one thousand pesos shall be imposed
passageway of one league long, upon the judge or encomendero who
wherein the indioscan have their live should violate this law.
stock that they may not be mixed with
those of the Spaniards. LAW XV.

LAW IX. Philip III at Madrid, on October 10, 1618.

Philip II at Toledo, on February 19, THAT THERE BE MAYORS AND ALDERMEN IN

1956. THE "REDUCTIONES," WHO SHALL BE
"INDIOS."
THAT THE "INDIOS" IN "REDUCCIONES" BE
NOT DEPRIVED OF THE LANDS PREVIOUSLY We order that in each town
HELD BY THEM. and reduccion there be a mayor, who
should be an indio of the
With more good-will and promptness, same reduccion; if there be more than
the indios shall be concentrated eighty houses, there should be two
in reducciones. Provided they shall not mayors and two aldermen, also indios;
be deprived of the lands and granaries 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 indias and 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 indiosshall 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 Zuiga,
"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 Avancea, 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
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.)
in 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 caigins 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 caigins
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 Avancea,
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 caiginsthereon. 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 caigins 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 caigin. What is a "caigin?" 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 caigin 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 caigins 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 enable them to adopt our boasted
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
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
And the court declared that the Indians were
little band of followers, he determined
illegally held by authority of the United States
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 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
THIRD DIVISION
G.R. No. 81561 January 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee
vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion
for accused-appellant.
BIDIN, J.:
This is an appeal from a decision * rendered
by the Special Criminal Court of Manila
(Regional Trial Court, Branch XLIX) convicting
accused-appellant of violation of Section 21
(b), Article IV in relation to Section 4, Article
11 and Section 2 (e) (i), Article 1 of Republic
Act 6425, as amended, otherwise known as
the Dangerous Drugs Act.
The facts as summarized in the brief of the
prosecution are as follows:
On August 14, 1987, between 10:00
and 11:00 a.m., the appellant and his
common-law wife, Shirley Reyes, went
to the booth of the "Manila Packing and
Export Forwarders" in the Pistang
Pilipino Complex, Ermita, Manila,
carrying with them four (4) gift
wrapped packages. Anita Reyes (the
proprietress and no relation to Shirley
Reyes) attended to them. The
appellant informed Anita Reyes that he
was sending the packages to a friend
in Zurich, Switzerland. Appellant filled
up the contract necessary for the
transaction, writing therein his name,
passport number, the date of shipment
and the name and address of the
consignee, namely, "WALTER FIERZ,
Mattacketr II, 8052 Zurich,
Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if
she could examine and inspect the
packages. Appellant, however,
refused, assuring her that the
packages simply contained books,
cigars, and gloves and were gifts to his
friend in Zurich. In view of appellant's
representation, Anita Reyes no longer
insisted on inspecting the packages.
The four (4) packages were then
placed inside a brown corrugated box
one by two feet in size (1' x 2'). Styro-
foam was placed at the bottom and on
top of the packages before the box was
sealed with masking tape, thus making
the box ready for shipment (Decision,
p. 8).
Before delivery of appellant's box to
the Bureau of Customs and/or Bureau
of Posts, Mr. Job Reyes (proprietor)
and husband of Anita (Reyes),
following standard operating
procedure, opened the boxes for final
inspection. When he opened
appellant's box, a peculiar odor
emitted therefrom. His curiousity
aroused, he squeezed one of the
bundles allegedly containing gloves
and felt dried leaves inside. Opening
one of the bundles, he pulled out a
cellophane wrapper protruding from
the opening of one of the gloves. He
made an opening on one of the
cellophane wrappers and took several
grams of the contents thereof(tsn, pp.
29-30, October 6, 1987; Emphasis
supplied).
Job Reyes forthwith prepared a letter
reporting the shipment to the NBI and
requesting a laboratory examination of
the samples he extracted from the
cellophane wrapper (tsn, pp. 5-6,
October 6, 1987).
He brought the letter and a sample of
appellant's shipment to the Narcotics
Section of the National Bureau of
Investigation (NBI), at about 1:30
o'clock in the afternoon of that
date, i.e., August 14, 1987. He was
interviewed by the Chief of Narcotics
Section. Job Reyes informed the NBI
that the rest of the shipment was still
 in his office. Therefore, Job Reyes and
three (3) NBI agents, and a
photographer, went to the Reyes' office
at Ermita, Manila (tsn, p. 30, October
6, 1987).
Job Reyes brought out the box in which
appellant's packages were placed and,
in the presence of the NBI agents,
opened the top flaps, removed the
styro-foam and took out the cellophane
wrappers from inside the gloves. Dried
marijuana leaves were found to have
been contained inside the cellophane
wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).
The package which allegedly contained
books was likewise opened by Job
Reyes. He discovered that the package
contained bricks or cake-like dried
marijuana leaves. The package which
allegedly contained tabacalera cigars
was also opened. It turned out that
dried marijuana leaves were neatly
stocked underneath the cigars (tsn, p.
39, October 6, 1987).
The NBI agents made an inventory and
took charge of the box and of the
contents thereof, after signing a
"Receipt" acknowledging custody of
the said effects (tsn, pp. 2-3, October
7, 1987).
Thereupon, the NBI agents tried to locate
appellant but to no avail. Appellant's stated
address in his passport being the Manila
Central Post Office, the agents requested
assistance from the latter's Chief Security. On
August 27, 1987, appellant, while claiming his
mail at the Central Post Office, was invited by
the NBI to shed light on the attempted
shipment of the seized dried leaves. On the
same day the Narcotics Section of the NBI
submitted the dried leaves to the Forensic
Chemistry Section for laboratory examination.
It turned out that the dried leaves were
marijuana flowering tops as certified by the
forensic chemist. (Appellee's Brief, pp. 9-
11, Rollo, pp. 132-134).
Thereafter, an Information was filed against
appellant for violation of RA 6425, otherwise
known as the Dangerous Drugs Act.
After trial, the court a quo rendered the
assailed decision.
In this appeal, accused/appellant assigns the
following errors, to wit:
THE LOWER COURT ERRED IN
ADMITTING IN EVIDENCE THE
ILLEGALLY SEARCHED AND SEIZED
OBJECTS CONTAINED IN THE FOUR
PARCELS.
THE LOWER COURT ERRED IN
CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS
UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS
WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT
GIVING CREDENCE TO THE
EXPLANATION OF THE APPELLANT ON
HOW THE FOUR PARCELS CAME INTO
HIS POSSESSION (Appellant's Brief, p.
1; Rollo, p. 55)
1. Appellant contends that the evidence
subject of the imputed offense had been
obtained in violation of his constitutional rights
against unreasonable search and seizure and
privacy of communication (Sec. 2 and 3, Art.
III, Constitution) and therefore argues that
the same should be held inadmissible in
evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution
provide:
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.
Sec. 3. (1) The privacy of
communication and correspondence
 shall be inviolable except upon lawful
order of the court, or when public
safety or order requires otherwise as
prescribed by law.
(2) Any evidence obtained in violation
of this or the preceding section shall be
inadmissible for any purpose in any
proceeding.
Our present constitutional provision on the
guarantee against unreasonable search and
seizure had its origin in the 1935 Charter
which, worded as follows:
The right of the people to be secure in
their persons, houses, papers and
effects against unreasonable searches
and seizures shall not be violated, and
no warrants shall issue but
upon probable cause, to be
determined 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.
(Sec. 1 [3], Article III)
was in turn derived almost verbatim from the
Fourth Amendment ** to the United States
Constitution. As such, the Court may turn to
the pronouncements of the United States
Federal Supreme Court and State Appellate
Courts which are considered doctrinal in this
jurisdiction.
Thus, following the exclusionary rule laid down
in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed.
1081 [1961]), this Court, in Stonehill v.
Diokno (20 SCRA 383 [1967]), declared as
inadmissible any evidence obtained by virtue
of a defective search and seizure warrant,
abandoning in the process the ruling earlier
adopted in Moncado v. People's Court (80 Phil.
1 [1948]) wherein the admissibility of
evidence was not affected by the illegality of
its seizure. The 1973 Charter (Sec. 4 [2], Art.
IV) constitutionalized the Stonehill ruling and
is carried over up to the present with the
advent of the 1987 Constitution.
In a number of cases, the Court strictly
adhered to the exclusionary rule and has
struck down the admissibility of evidence
obtained in violation of the constitutional
safeguard against unreasonable searches and
seizures. (Bache & Co., (Phil.), Inc., v. Ruiz,
37 SCRA 823 [1971]; Lim v. Ponce de Leon,
66 SCRA 299 [1975]; People v. Burgos, 144
SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA
687 [1987]; See also Salazar v. Hon.
Achacoso, et al., GR No. 81510, March 14,
1990).
It must be noted, however, that in all those
cases adverted to, the evidence so obtained
were invariably procured by the State acting
through the medium of its law enforcers or
other authorized government agencies.
On the other hand, the case at bar assumes a
peculiar character since the evidence sought
to be excluded was primarily discovered and
obtained by a private person, acting in a
private capacity and without the intervention
and participation of State authorities. Under
the circumstances, can accused/appellant
validly claim that his constitutional right
against unreasonable searches and seizure
has been violated? Stated otherwise, may an
act of a private individual, allegedly in
violation of appellant's constitutional rights,
be invoked against the State?
We hold in the negative. In the absence of
governmental interference, the liberties
guaranteed by the Constitution cannot be
invoked against the State.
As this Court held in Villanueva v.
Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against
unreasonable search and
seizure) refers to the immunity of
one's person, whether citizen or alien,
from interference by government,
included in which is his residence, his
papers, and other possessions. . . .
. . . There the state, however powerful,
does not as such have the 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. Schermerber v.
California, 384 US 757 [1966] and
Boyd v. United States, 116 US 616
[1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921),
41 S Ct. 547; 65 L.Ed. 1048), the Court there
in construing the right against unreasonable
searches and seizures declared that:
(t)he Fourth Amendment gives
protection against unlawful searches
and seizures, and as shown in previous
cases, its protection applies to
governmental action. Its origin and
history clearly show that it was
intended as a restraint upon the
activities of sovereign authority, and
was not intended to be a limitation
upon other than governmental
agencies; as against such authority it
was the purpose of the Fourth
Amendment to secure the citizen in the
right of unmolested occupation of his
dwelling and the possession of his
property, subject to the right of seizure
by process duly served.
The above ruling was reiterated in State v.
Bryan (457 P.2d 661 [1968]) where a parking
attendant who searched the automobile to
ascertain the owner thereof found marijuana
instead, without the knowledge and
participation of police authorities, was
declared admissible in prosecution for illegal
possession of narcotics.
And again in the 1969 case of Walker v.
State (429 S.W.2d 121), it was held that the
search and seizure clauses are restraints upon
the government and its agents, not upon
private individuals (citing People v. Potter,
240 Cal. App.2d 621, 49 Cap. Rptr, 892
(1966); State v. Brown, Mo., 391 S.W.2d 903
(1965); State v. Olsen, Or., 317 P.2d 938
(1957).
Likewise appropos is the case of Bernas v.
US (373 F.2d 517 (1967). The Court there
said:
The search of which appellant
complains, however, was made by a
private citizen the owner of a motel
in which appellant stayed overnight
and in which he left behind a travel
case containing the
evidence***complained of. The search
was made on the motel owner's own
initiative. Because of it, he became
suspicious, called the local police,
informed them of the bag's contents,
and made it available to the
authorities.
The fourth amendment and the case
law applying it do not require exclusion
of evidence obtained through a search
by a private citizen. Rather, the
amendment only proscribes
governmental action."
The contraband in the case at bar having come
into possession of the Government without the
latter transgressing appellant's rights against
unreasonable search and seizure, the Court
sees no cogent reason why the same should
not be admitted against him in the prosecution
of the offense charged.
Appellant, however, would like this court to
believe that NBI agents made an illegal search
and seizure of the evidence later on used in
prosecuting the case which resulted in his
conviction.
The postulate advanced by accused/appellant
needs to be clarified in two days. In both
instances, the argument stands to fall on its
own weight, or the lack of it.
First, the factual considerations of the case at
bar readily foreclose the proposition that NBI
agents conducted an illegal search and seizure
of the prohibited merchandise. Records of the
case clearly indicate that it was Mr. Job Reyes,
the proprietor of the forwarding agency, who
made search/inspection of the packages. Said
inspection was reasonable and a standard
operating procedure on the part of Mr. Reyes
as a precautionary measure before delivery of
packages to the Bureau of Customs or the
Bureau of Posts (TSN, October 6 & 7, 1987,
pp. 15-18; pp. 7-8; Original Records, pp. 119-
122; 167-168).
It will be recalled that after Reyes opened the
box containing the illicit cargo, he took
samples of the same to the NBI and later
summoned the agents to his place of business.
Thereafter, he opened the parcel containing
the rest of the shipment and entrusted the
care and custody thereof to the NBI agents.
Clearly, the NBI agents made no search and
seizure, much less an illegal one, contrary to
the postulate of accused/appellant.
Second, the mere presence of the NBI agents
did not convert the reasonable search effected
by Reyes into a warrantless search and seizure
proscribed by the Constitution. Merely to
observe and look at that which is in plain sight
is not a search. Having observed that which is
open, where no trespass has been committed
in aid thereof, is not search (Chadwick v.
State, 429 SW2d 135). Where the contraband
articles are identified without a trespass on
the part of the arresting officer, there is not
the search that is prohibited by the
constitution (US v. Lee 274 US 559, 71 L.Ed.
1202 [1927]; Ker v. State of California 374 US
23, 10 L.Ed.2d. 726 [1963]; Moore v. State,
429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266
[1964]), it was likewise held that where the
property was taken into custody of the police
at the specific request of the manager and
where the search was initially made by the
owner there is no unreasonable search and
seizure within the constitutional meaning of
the term.
That the Bill of Rights embodied in the
Constitution is not meant to be invoked
against acts of private individuals finds
support in the deliberations of the
Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land
must always be subject to protection. But
protection against whom? Commissioner
Bernas in his sponsorship speech in the Bill of
Rights answers the query which he himself
posed, as follows:
First, the general reflections. The
protection of fundamental liberties in
the essence of constitutional
democracy. Protection against
whom? Protection against the state.
The Bill of Rights governs the
relationship between the individual and
the state. Its concern is not the relation
between individuals, between a private
individual and other individuals. What
the Bill of Rights does is to declare
some forbidden zones in the private
sphere inaccessible to any power
holder. (Sponsorship Speech of
Commissioner Bernas , Record of the
Constitutional Commission, Vol. 1, p.
674; July 17, 1986; Emphasis
supplied)
The constitutional proscription against
unlawful searches and seizures therefore
applies as a restraint directed only against the
government and its agencies tasked with the
enforcement of the law. Thus, it could only be
invoked against the State to whom the
restraint against arbitrary and unreasonable
exercise of power is imposed.
If the search is made upon the request of law
enforcers, a warrant must generally be first
secured if it is to pass the test of
constitutionality. However, if the search is
made at the behest or initiative of the
proprietor of a private establishment for its
own and private purposes, as in the case at
bar, and without the intervention of police
authorities, the right against unreasonable
search and seizure cannot be invoked for only
the act of private individual, not the law
enforcers, is involved. In sum, the protection
against unreasonable searches and seizures
cannot be extended to acts committed by
private individuals so as to bring it within the
ambit of alleged unlawful intrusion by the
government.
Appellant argues, however, that since the
provisions of the 1935 Constitution has been
modified by the present phraseology found in
the 1987 Charter, expressly declaring as
inadmissible any evidence obtained in
violation of the constitutional prohibition
against illegal search and seizure, it matters
not whether the evidence was procured by
police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the
constitution, in laying down the principles of
the government and fundamental liberties of
the people, does not govern relationships
between individuals. Moreover, it must be
emphasized that the modifications introduced
in the 1987 Constitution (re: Sec. 2, Art. III)
relate to the issuance of either a search
warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance
thereof (SeeSoliven v. Makasiar, 167 SCRA
393 [1988]; Circular No. 13 [October 1, 1985]
and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner
as to whom the restriction or inhibition against
unreasonable search and seizure is directed
against. The restraint stayed with the State
and did not shift to anyone else.
Corolarilly, alleged violations against
unreasonable search and seizure may only be
invoked against the State by an individual
unjustly traduced by the exercise of sovereign
authority. To agree with appellant that an act
of a private individual in violation of the Bill of
Rights should also be construed as an act of
the State would result in serious legal
complications and an absurd interpretation of
the constitution.
Similarly, the admissibility of the evidence
procured by an individual effected through
private seizure equally applies, in pari passu,
to the alleged violation, non-governmental as
it is, of appellant's constitutional rights to
privacy and communication.
2. In his second assignment of error, appellant
contends that the lower court erred in
convicting him despite the undisputed fact
that his rights under the constitution while
under custodial investigation were not
observed.
Again, the contention is without merit, We
have carefully examined the records of the
case and found nothing to indicate, as an
"undisputed fact", that appellant was not
informed of his constitutional rights or that he
gave statements without the assistance of
counsel. The law enforcers testified that
accused/appellant was informed of his
constitutional rights. It is presumed that they
have regularly performed their duties (See.
5(m), Rule 131) and their testimonies should
be given full faith and credence, there being
no evidence to the contrary. What is clear
from the records, on the other hand, is that
appellant refused to give any written
statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and
Mrs. Job Reyes. What about the
accused here, did you investigate the
accused together with the girl?
WITNESS:
Yes, we have interviewed the accused
together with the girl but the accused
availed of his constitutional right not to
give any written statement, sir. (TSN,
October 8, 1987, p. 62; Original
Records, p. 240)
The above testimony of the witness for the
prosecution was not contradicted by the
defense on cross-examination. As borne out
by the records, neither was there any proof by
the defense that appellant gave uncounselled
confession while being investigated. What is
more, we have examined the assailed
judgment of the trial court and nowhere is
there any reference made to the testimony of
appellant while under custodial investigation
which was utilized in the finding of conviction.
Appellant's second assignment of error is
therefore misplaced.
3. Coming now to appellant's third assignment
of error, appellant would like us to believe that
he was not the owner of the packages which
contained prohibited drugs but rather a
certain Michael, a German national, whom
appellant met in a pub along Ermita, Manila:
that in the course of their 30-minute
conversation, Michael requested him to ship
the packages and gave him P2,000.00 for the
cost of the shipment since the German
national was about to leave the country the
next day (October 15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity,
we find appellant's disclaimer as incredulous,
self-serving and contrary to human
experience. It can easily be fabricated. An
acquaintance with a complete stranger struck
in half an hour could not have pushed a man
to entrust the shipment of four (4) parcels and
shell out P2,000.00 for the purpose and for
appellant to readily accede to comply with the
undertaking without first ascertaining its
contents. As stated by the trial court, "(a)
person would not simply entrust contraband
and of considerable value at that as the Premises considered, we see no error
marijuana flowering tops, and the cash committed by the trial court in rendering the
amount of P2,000.00 to a complete stranger assailed judgment.
like the Accused. The Accused, on the other
hand, would not simply accept such WHEREFORE, the judgment of conviction
undertaking to take custody of the packages finding appellant guilty beyond reasonable
and ship the same from a complete stranger doubt of the crime charged is hereby
on his mere say-so" (Decision, p. 19, Rollo, p. AFFIRMED. No costs.
91). As to why he readily agreed to do the
errand, appellant failed to explain. Denials, if SO ORDERED.
unsubstantiated by clear and convincing
evidence, are negative self-serving evidence
Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ.,
which deserve no weight in law and cannot be
concur.
given greater evidentiary weight than the
testimony of credible witnesses who testify on
affirmative matters (People v. Esquillo, 171
SCRA 571 [1989]; People vs. Sariol, 174 SCRA
237 [1989]).

Appellant's bare denial is even made more

suspect considering that, as per records of the
Interpol, he was previously convicted of
possession of hashish by the Kleve Court in
the Federal Republic of Germany on January
1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss
national, was likewise convicted for drug
abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland
(TSN, October 8, 1987, p. 66; Original
Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only

proceed from the mouth of a credible witness,
but it must be credible in itself such as the
common experience and observation of
mankind can approve as probable under the
circumstances (People v. Alto, 26 SCRA 342
[1968], citing Daggers v. Van Dyke, 37 N.J.
Eg. 130; see also People v. Sarda, 172 SCRA
651 [1989]; People v. Sunga, 123 SCRA 327
[1983]); Castaares v. CA, 92 SCRA 567
[1979]). As records further show, appellant
did not even bother to ask Michael's full name,
his complete address or passport number.
Furthermore, if indeed, the German national
was the owner of the merchandise, appellant
should have so indicated in the contract of
shipment (Exh. "B", Original Records, p. 40).
On the contrary, appellant signed the contract
as the owner and shipper thereof giving more
weight to the presumption that things which a
person possesses, or exercises acts of
ownership over, are owned by him (Sec. 5 [j],
Rule 131). At this point, appellant is therefore
estopped to claim otherwise.
EN BANC
G.R. No. 205357, September 02, 2014
GMA NETWORK,
INC., Petitioner, v. COMMISSION ON
ELECTIONS, RESPONDENT. SENATOR
ALAN PETER COMPAERO S.
CAYETANO, Petitioner-Intervenor.
G.R. NO. 205374
ABC DEVELOPMENT
CORPORATION, Petitioner, v. COMMISSIO
N ON ELECTIONS, Respondent.
G.R. NO. 205592
MANILA BROADCASTING COMPANY, INC.
AND NEWSOUNDS BROADCASTING
NETWORK,
INC., Petitioner, v. COMMISSION ON
ELECTIONS, Respondent.
G.R. NO. 205852
KAPISANAN NG MGA BRODKASTER NG
PILIPINAS (KBP) AND ABS-CBN
CORPORATION, Petitioners, v. COMMISSI
ON ON ELECTIONS, Respondent.
G.R. NO. 206360
RADIO MINDANAO NETWORK,
INC., Petitioner, v. COMMISSION ON
ELECTIONS, Respondent.
DECISION
PERALTA, J.:
The clash of rights demands a delicate
balancing of interests approach which is a
fundamental postulate of constitutional
law.1
Once again the Court is asked to draw a
carefully drawn balance in the incessant
conflicts between rights and regulations,
liberties and limitations, and competing
demands of the different segments of society.
Here, we are confronted with the need to
strike a workable and viable equilibrium
between a constitutional mandate to maintain
free, orderly, honest, peaceful and credible
elections, together with the aim of ensuring
equal opportunity, time and space, and the
right to reply, including reasonable, equal
rates therefor, for public information
campaigns and forums among candidates,2on
one hand, and the imperatives of a republican
and democratic state,3 together with its
guaranteed rights of suffrage,4 freedom of
speech and of the press,5 and the peoples
right to information,6 on the other.
In a nutshell, the present petitions may be
seen as in search of the answer to the question
how does the Charter of a republican
and democratic State achieve a viable
and acceptable balance between liberty,
without which, government becomes an
unbearable tyrant, and authority, without
which, society becomes an intolerable
and dangerous arrangement?
Assailed in these petitions are certain
regulations promulgated by the Commission
on Elections (COMELEC) relative to the
conduct of the 2013 national and local
elections dealing with political
advertisements. Specifically, the petitions
question the constitutionality of the limitations
placed on aggregate airtime allowed to
candidates and political parties, as well as the
requirements incident thereto, such as the
need to report the same, and the sanctions
imposed for violations.
The five (5) petitions before the Court put in
issue the alleged unconstitutionality of Section
9 (a) of COMELEC Resolution No. 9615
(Resolution) limiting the broadcast and radio
advertisements of candidates and political
parties for national election positions to an
aggregate total of one hundred twenty (120)
minutes and one hundred eighty (180)
minutes, respectively. They contend that such
restrictive regulation on allowable broadcast
time violates freedom of the press, impairs the
peoples right to suffrage as well as their right
to information relative to the exercise of their
right to choose who to elect during the
forthcoming elections.
The heart of the controversy revolves upon
the proper interpretation of the limitation on
the number of minutes that candidates may
use for television and radio advertisements, as
provided in Section 6 of Republic Act No.
9006 (R.A. No. 9006), otherwise known as
the Fair Election Act. Pertinent portions of
said provision state, Pilipinas (KBP) is the national organization of
thus:ChanRoblesVirtualawlibrary broadcasting companies in the Philippines
Sec. 6. Equal Access to Media Time and representing operators of radio and television
Space. - All registered parties and bona fide stations and said stations themselves. They
candidates shall have equal access to media sent their respective letters to the COMELEC
time and space. The following guidelines may questioning the provisions of the
be amplified on by the COMELEC: aforementioned Resolution, thus, the
x x x x COMELEC held public hearings. Thereafter, on
February 1, 2013, respondent issued
6.2 (a) Each bona fide candidate or registered Resolution No. 9631 amending provisions of
political party for a nationally elective office Resolution No. 9615. Nevertheless,
shall be entitled to not more than one hundred petitioners still found the provisions
twenty (120) minutes of television objectionable and oppressive, hence, the
advertisement and one hundred eighty (180) present petitions.
minutes of radio advertisement whether by
purchase or donation. All of the petitioners assail the following
provisions of the
b. Each bona fide candidate or registered Resolution:ChanRoblesVirtualawlibrary
political party for a locally elective office shall
be entitled to not more than sixty (60) a) Section 7 (d),8 which provides for a penalty
minutes of television advertisement and of suspension or revocation of an offender's
ninety (90) minutes of radio advertisement franchise or permit, imposes criminal liability
whether by purchase or donation. against broadcasting entities and their officers
in the event they sell airtime in excess of the
For this purpose, the COMELEC shall require size, duration, or frequency authorized in the
any broadcast station or entity to submit to new rules;
the COMELEC a copy of its broadcast logs and
certificates of performance for the review and b) Section 9 (a),9 which provides for an
verification of the frequency, date, time and aggregate total airtime
duration of advertisements broadcast for any instead of the previous per station airtime
candidate or political party. for political campaigns or advertisements, and
also required prior COMELEC approval for
During the previous elections of May 14, 2007 candidates' television and radio guestings and
and May 10, 2010, COMELEC issued appearances; and
Resolutions implementing and interpreting
Section 6 of R.A. No. 9006, regarding airtime c) Section 14,10 which provides for a
limitations, to mean that a candidate is candidate's right to reply.
entitled to the aforestated number of minutes
per station.7 For the May 2013 elections, In addition, petitioner ABC also questions
however, respondent COMELEC Section 1 (4)11 thereof, which defines the term
promulgated Resolution No. 9615 dated political advertisement or election
January 15, 2013, changing the interpretation propaganda, while petitioner GMA further
of said candidates' and political parties' assails Section 35,12 which states that any
airtime limitation for political campaigns or violation of said Rules shall constitute an
advertisements from a per station basis, to election offense.
a total aggregate basis.
On March 15, 2013, Senator Alan Peter S.
Petitioners ABS-CBN Corporation (ABS-CBN), Cayetano (Petitioner-Intervenor) filed a
ABC Development Corporation (ABC), GMA Motion for Leave to Intervene and to File and
Network, Incorporated (GMA), Manila Admit the Petition-in-Intervention, which was
Broadcasting Company, Inc. (MBC), granted by the Court per its Resolution dated
Newsounds Broadcasting Network, Inc. March 19, 2013. Petitioner-Intervenor also
(NBN), and Radio Mindanao Network, Inc. assails Section 9 (a) of the Resolution
(RMN) are owners/operators of radio and changing the interpretation of candidates' and
television networks in the Philippines, while political parties' airtime limitation for political
petitioner Kapisanan ng mga Brodkaster ng campaigns or advertisements from a per
station basis, to a total aggregate basis.
Petitioners allege that Resolutions No. 9615
and 9631, amending the earlier Resolution,
are unconstitutional and issued without
jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction, for
the reasons set forth hereunder.
Petitioners posit that Section 9 (a) of the
assailed Resolution provides for a very
restrictive aggregate airtime limit and a vague
meaning for a proper computation of
aggregate total airtime, and violates the
equal protection guarantee, thereby defeating
the intent and purpose of R.A. No. 9006.
On the other hand, respondent posits in its
Comment and Opposition13 dated March 8,
2013, that the petition should be denied based
on the following
reasons:ChanRoblesVirtualawlibrary
Respondent contends that the remedies
of certiorari and prohibition are not available
to petitioners, because the writ of certiorari is
only available against the COMELEC's
adjudicatory or quasi-judicial powers, while
the writ of prohibition only lies against the
exercise of judicial, quasi-judicial or
ministerial functions. Said writs do not lie
against the COMELECs administrative or rule-
making powers.

Petitioners contend that Section 9 (a), which
imposes a notice requirement, is vague and
infringes on the constitutionally protected
freedom of speech, of the press and of
expression, and on the right of people to be
informed on matters of public concern
Also, Section 9 (a) is a cruel and oppressive
regulation as it imposes an unreasonable and
almost impossible burden on broadcast mass
media of monitoring a candidate's or political
party's aggregate airtime, otherwise, it may
incur administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is
null and void for unlawfully criminalizing acts
not prohibited and penalized as criminal
offenses by R.A. No. 9006.
Section 14 of Resolution No. 9615, providing
for a candidate's or political party's right to
reply, is likewise assailed to be
unconstitutional for being an improper
exercise of the COMELEC's regulatory powers;
for constituting prior restraint and infringing
petitioners' freedom of expression, speech
and the press; and for being violative of the
equal protection guarantee.
In addition to the foregoing, petitioner GMA
further argues that the Resolution was
promulgated without public consultations, in
violation of petitioners' right to due
process. Petitioner ABC also avers that the
Resolution's definition of the terms political
advertisement and election propaganda
suffers from overbreadth, thereby producing a
chilling effect, constituting prior restraint.
Respondent likewise alleges that petitioners
do not have locus standi, as the constitutional
rights and freedoms they enumerate are not
personal to them, rather, they belong to
candidates, political parties and the Filipino
electorate in general, as the limitations are
imposed on candidates, not on media
outlets. It argues that petitioners' alleged risk
of exposure to criminal liability is insufficient
to give them legal standing as said fear of
injury is highly speculative and contingent on
a future act.
Respondent then parries petitioners' attack on
the alleged infirmities of the Resolution's
provisions.
Respondent maintains that the per candidate
rule or total aggregate airtime limit is in
accordance with R.A. No. 9006 as this would
truly give life to the constitutional objective to
equalize access to media during elections. It
sees this as a more effective way of levelling
the playing field between candidates/political
parties with enormous resources and those
without much. Moreover, the Comelecs
issuance of the assailed Resolution is pursuant
to Section 4, Article IX (C) of the Constitution
which vests on the Comelec the power to
supervise and regulate, during election
periods, transportation and other public
utilities, as well as mass media, to
wit:ChanRoblesVirtualawlibrary
Sec. 4. The Commission may, during the
election period, supervise or regulate the
enjoyment or utilization of all franchises or
permits for the operation of transportation and
other public utilities, media of communication
or information, all grants, special privileges, or
concessions granted by the Government or
any subdivision, agency, or instrumentality
thereof, including any government-owned or
controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure
equal opportunity, and equal rates therefor,
for public information campaigns and forums
among candidates in connection with the
objective of holding free, orderly, honest,
peaceful, and credible elections.
This being the case, then the Resolutions
cannot be said to have been issued with grave
abuse of discretion amounting to lack of
jurisdiction.
Next, respondent claims that the provisions
are not vague because the assailed
Resolutions have given clear and adequate
mechanisms to protect broadcast stations
from potential liability arising from a
candidate's or party's violation of airtime
limits by putting in the proviso that the station
may require buyer to warrant under oath that
such purchase [of airtime] is not in excess of
size, duration or frequency authorized by law
or these rules. Furthermore, words should
be understood in the sense that they have in
common usage, and should be given their
ordinary meaning. Thus, in the provision for
the right to reply, charges against
candidates or parties must be understood in
the ordinary sense, referring to accusations or
criticisms.
Respondent also sees no prior restraint in the
provisions requiring notice to the Comelec for
appearances or guestings of candidates in
bona fide news broadcasts. It points out that
the fact that notice may be given 24 hours
after first broadcast only proves that the
mechanism is for monitoring purposes only,
not for censorship. Further, respondent
argues, that for there to be prior restraint,
official governmental restrictions on the press
or other forms of expression must be done in
advance of actual publication or
dissemination. Moreover, petitioners are only
required to inform the Comelec of
candidates'/parties' guestings, but there is no
regulation as to the content of the news or the
expressions in news interviews or news
documentaries. Respondent then emphasized
that the Supreme Court has held that freedom
of speech and the press may be limited in light
of the duty of the Comelec to ensure equal
access to opportunities for public service.
With regard to the right to reply provision,
respondent also does not consider it as
restrictive of the airing of bona fide news
broadcasts. More importantly, it stressed, the
right to reply is enshrined in the Constitution,
and the assailed Resolutions provide that said
right can only be had after going through
administrative due process. The provision
was also merely lifted from Section 10 of R.A.
No. 9006, hence, petitioner ABC is actually
attacking the constitutionality of R.A. No.
9006, which cannot be done through a
collateral attack.
Next, respondent counters that there is no
merit to ABC's claim that the Resolutions'
definition of political advertisement or
election propaganda suffers from
overbreadth, as the extent or scope of what
falls under said terms is clearly stated in
Section 1 (4) of Resolution No. 9615.
It is also respondent's view that the
nationwide aggregate total airtime does not
violate the equal protection clause, because it
does not make any substantial distinctions
between national and regional and/or local
broadcast stations, and even without the
aggregate total airtime rule, candidates and
parties are likely to be more inclined to
advertise in national broadcast stations.
Respondent likewise sees no merit in
petitioners' claim that the Resolutions amount
to taking of private property without just
compensation. Respondent emphasizes that
radio and television broadcasting companies
do not own the airwaves and frequencies
through which they transmit broadcast
signals; they are merely given the temporary
privilege to use the same. Since they are
merely enjoying a privilege, the same may be
reasonably burdened with some form of public
service, in this case, to provide candidates
with the opportunity to reply to charges aired
against them.
Lastly, respondent contends that the public
consultation requirement does not apply to
constitutional commissions such as the
Comelec, pursuant to Section 1, Chapter I,
Book VII of the Administrative Code of
1987. Indeed, Section 9, Chapter II, Book VII
of said Code provides,
thus:ChanRoblesVirtualawlibrary
Section 9. Public Participation. - (1) If not
otherwise required by law, an agency shall, as
far as practicable, publish or circulate notices
of proposed rules and afford interested parties
the opportunity to submit their views prior to
the adoption of any rule.
However, Section 1, Chapter 1, Book VII of
said Code clearly
provides:ChanRoblesVirtualawlibrary
Section 1. Scope. - This Book shall be
applicable to all agencies as defined in the
next succeeding section, except the Congress,
the Judiciary, the Constitutional Commissions,
military establishments in all matters relating
exclusively to Armed Forces personnel, the
Board of Pardons and Parole, and state
universities and colleges.
Nevertheless, even if public participation is not
required, respondent still conducted a meeting
with representatives of the KBP and various
media outfits on December 26, 2012, almost
a month before the issuance of Resolution No.
9615.
On April 2, 2013, petitioner GMA filed its
Reply,14 where it advanced the following
counter-
arguments:ChanRoblesVirtualawlibrary
According to GMA, a petition for certiorari is
the proper remedy to question the herein
assailed Resolutions, which should be
considered as a decision, order or ruling of
the Commission as mentioned in Section 1,
Rule 37 of the COMELEC Rules of Procedure
which provides:ChanRoblesVirtualawlibrary
Section 1. Petition for Certiorari; and Time to
File. - Unless otherwise provided by law, or by
any specific provisions in these Rules, any
decision, order or ruling of the Commission
may be brought to the Supreme Court
on certiorari by the aggrieved party within
thirty (30) days from its promulgation.
GMA further stressed that this case involves
national interest, and the urgency of the
matter justifies its resort to the remedy of a
petition for certiorari.
Therefore, GMA disagrees with the COMELEC's
position that the proper remedy is a petition
for declaratory relief because such action only
asks the court to make a proper interpretation
of the rights of parties under a statute or
regulation. Such a petition does not nullify the
assailed statute or regulation, or grant
injunctive relief, which petitioners are praying
for in their petition. Thus, GMA maintains that
a petition for certiorari is the proper remedy.
GMA further denies that it is making a
collateral attack on the Fair Election Act, as it
is not attacking said law. GMA points out that
it has stated in its petition that the law in fact
allows the sale or donation of airtime for
political advertisements and does not impose
criminal liability against radio and television
stations. What it is assailing is the COMELEC's
erroneous interpretation of the law's
provisions by declaring such sale and/or
donation of airtime unlawful, which is contrary
to the purpose of the Fair Election Act.
GMA then claims that it has legal standing to
bring the present suit
because:ChanRoblesVirtualawlibrary
x x x First, it has personally suffered a
threatened injury in the form of risk of criminal
liability because of the alleged
unconstitutional and unlawful conduct of
respondent COMELEC in expanding what was
provided for in R.A. No. 9006. Second, the
injury is traceable to the challenged action of
respondent COMELEC, that is, the issuance of
the assailed Resolutions. Third, the injury is
likely to be redressed by the remedy sought in
petitioner GMA's Petition, among others, for
the Honorable Court to nullify the challenged
pertinent provisions of the assailed
Resolutions.15cralawred
On substantive issues, GMA first argues that
the questioned Resolutions are contrary to the
objective and purpose of the Fair Election
Act. It points out that the Fair Election Act
even repealed the political ad ban found in the
earlier law, R.A. No. 6646. The Fair Election
Act also speaks of equal opportunity and
equal access, but said law never mentioned
equalizing the economic station of the rich and
the poor, as a declared policy. Furthermore,
in its opinion, the supposed correlation
between candidates' expenditures for TV ads
and actually winning the elections, is a mere
illusion, as there are other various factors
responsible for a candidate's winning the
election. GMA then cites portions of the
deliberations of the Bicameral Conference
Committee on the bills that led to the
enactment of the Fair Election Act, and alleges
that this shows the legislative intent that
airtime allocation should be on a per station
basis. Thus, GMA claims it was arbitrary and
a grave abuse of discretion for the COMELEC
to issue the present Resolutions imposing
airtime limitations on an aggregate total
basis.
It is likewise insisted by GMA that the assailed
Resolutions impose an unconstitutional
burden on them, because their failure to
strictly monitor the duration of total airtime
that each candidate has purchased even from
other stations would expose their officials to
criminal liability and risk losing the station's
good reputation and goodwill, as well as its
franchise. It argues that the wordings of the
Resolutions belie the COMELEC's claim that
petitioners would only incur liability if they
knowingly sell airtime beyond the limits
imposed by the Resolutions, because the
element of knowledge is clearly absent from
the provisions thereof. This makes the
provisions have the nature of malum
prohibitum.
Next, GMA also says that the application of the
aggregate airtime limit constitutes prior
restraint and is unconstitutional, opining that
[t]he reviewing power of respondent
COMELEC and its sole judgment of a news
event as a political advertisement are so
pervasive under the assailed Resolutions, and
provoke the distastes or chilling effect of prior
restraint16 as even a legitimate exercise of a
constitutional right might expose it to legal
sanction. Thus, the governmental interest of
leveling the playing field between rich and
poor candidates cannot justify the restriction
on the freedoms of expression, speech and of
the press.
On the issue of lack of prior public
participation, GMA cites Section 82 of the
Omnibus Election Code, pertinent portions of
which provide,
thus:ChanRoblesVirtualawlibrary
Section 82. Lawful election propaganda. -
Lawful election propaganda shall include:
x x x x
All other forms of election propaganda not
prohibited by this Code as the Commission
may authorize after due notice to all
interested parties and hearing where all the
interested parties were given an equal
opportunity to be heard: Provided, That the
Commission's authorization shall be published
in two newspapers of general circulation
throughout the nation for at least twice within
one week after the authorization has been
granted.
There having been no prior public consultation
held, GMA contends that the COMELEC is
guilty of depriving petitioners of its right to
due process of law.
GMA then concludes that it is also entitled to
a temporary restraining order, because the
implementation of the Resolutions in question
will cause grave and irreparable damage to it
by disrupting and emasculating its mandate to
provide television and radio services to the
public, and by exposing it to the risk of
incurring criminal and administrative liability
by requiring it to perform the impossible task
of surveillance and monitoring, or the
broadcasts of other radio and television
stations.
Thereafter, on April 4, 2013, the COMELEC,
through the Office of the Solicitor General
(OSG), filed a Supplemental Comment and
Opposition17 where it further expounded on
the legislative intent behind the Fair Election
Act, also quoting portions of the deliberations
of the Bicameral Conference Committee,
allegedly adopting the Senate Bill version
setting the computation of airtime limits on a
per candidate, not per station, basis. Thus, as
enacted into law, the wordings of Section 6 of
the Fair Election Act shows that the airtime
limit is imposed on a per candidate basis,
rather than on a per station
basis. Furthermore, the COMELEC states that
petitioner-intervenor Senator Cayetano is
wrong in arguing that there should be
empirical data to support the need to change
the computation of airtime limits from a per
station basis to a per candidate basis, because
nothing in law obligates the COMELEC to
support its Resolutions with empirical data, as
said airtime limit was a policy decision dictated
by the legislature itself, which had the
necessary empirical and other data upon
which to base said policy decision.
The COMELEC then points out that Section 2
(7),18 Article IX (C) of the Constitution
empowers it to recommend to Congress
effective measures to minimize election
spending and in furtherance of such
constitutional power, the COMELEC issued the
questioned Resolutions, in faithful
implementation of the legislative intent and
objectives of the Fair Election Act.
The COMELEC also dismisses Senator
Cayetano's fears that unauthorized or
inadvertent inclusion of his name, initial,
image, brand, logo, insignia and/or symbol in
tandem advertisements will be charged
against his airtime limits by pointing out that
what will be counted against a candidate's
airtime and expenditures are those
advertisements that have been paid for or
donated to them to which the candidate has
given consent.
With regard to the attack that the total
aggregate airtime limit constitutes prior
restraint or undue abridgement of the freedom
of speech and expression, the COMELEC
counters that the Resolutions enjoy
constitutional and congressional
imprimatur. It is the Constitution itself that
imposes the restriction on the freedoms of
speech and expression, during election period,
to promote an important and significant
governmental interest, which is to equalize, as
far as practicable, the situation of rich and
poor candidates by preventing the former
from enjoying the undue advantage offered by
huge campaign 'war chests.'19cralawred
Lastly, the COMELEC also emphasizes that
there is no impairment of the people's right to
information on matters of public concern,
because in this case, the COMELEC is not
withholding access to any public record.
On April 16, 2013, this Court issued a
Temporary Restraining Order20 (TRO) in view
of the urgency involved and to prevent
irreparable injury that may be caused to the
petitioners if respondent COMELEC is not
enjoined from implementing Resolution No.
9615.
On April 19, 2013 respondent filed an Urgent
Motion to Lift Temporary Restraining Order
and Motion for Early Resolution of the
Consolidated Petitions.21cralawred
On May 8, 2013, petitioners ABS-CBN and the
KBP filed its Opposition/Comment22 to the
said Motion. Not long after, ABC followed suit
and filed its own Opposition to the
Motion23 filed by the respondent.
In the interim, respondent filed a Second
Supplemental Comment and
Opposition24 dated April 8, 2013.
In the Second Supplemental Comment and
Opposition, respondent delved on points
which were not previously discussed in its
earlier Comment and Supplemental Comment,
particularly those raised in the petition filed by
petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not
the proper remedy to question the
Constitutionality of the assailed Resolutions
and that petitioners ABS-CBN and KBP have
no locus standi to file the present petition.
Respondent posits that contrary to the
contention of petitioners, the legislative
history of R.A. No. 9006 conclusively shows
that congress intended the airtime limits to be
computed on a per candidate and not on a
per station basis. In addition, the legal duty
of monitoring lies with the
COMELEC. Broadcast stations are merely
required to submit certain documents to aid
the COMELEC in ensuring that candidates are
not sold airtime in excess of the allowed limits.
Also, as discussed in the earlier Comment, the
prior notice requirement is a mechanism
designed to inform the COMELEC of the
appearances or guesting of candidates in bona
fide news broadcasts. It is for monitoring
purposes only, not censorship. It does not
control the subject matter of news broadcasts
in anyway. Neither does it prevent media
outlets from covering candidates in news
interviews, news events, and news
documentaries, nor prevent the candidates
from appearing thereon.
As for the right to reply, respondent insists
that the right to reply provision cannot be
considered a prior restraint on the freedoms
of expression, speech and the press, as it does
not in any way restrict the airing of bona
fide new broadcasts. Media entities are free
to report any news event, even if it should turn
out to be unfavourable to a candidate or
party. The assailed Resolutions merely give
the candidate or party the right to reply to
such charges published or aired against them
in news broadcasts.
Moreover, respondent contends that the
imposition of the penalty of suspension and
revocation of franchise or permit for the sale
or donation of airtime beyond the allowable
limits is sanctioned by the Omnibus Election
Code.
Meanwhile, RMN filed its Petition on April 8,
2013. On June 4, 2013, the Court issued a
Resolution25consolidating the case with the
rest of the petitions and requiring respondent
to comment thereon.
On October 10, 2013, respondent filed its
Third Supplemental Comment and
Opposition.26 Therein, respondent stated that
the petition filed by RMN repeats the issues
that were raised in the previous
petitions. Respondent, likewise, reiterated its
arguments that certiorari in not the proper
remedy to question the assailed resolutions
and that RMN has no locus standi to file the
present petition. Respondent maintains that
the arguments raised by RMN, like those
raised by the other petitioners are without
merit and that RMN is not entitled to the
injunctive relief sought.
The petition is partly meritorious.
At the outset, although the subject of the
present petitions are Resolutions promulgated
by the COMELEC relative to the conduct of the
2013 national and local elections,
nevertheless the issues raised by the
petitioners have not been rendered moot and
academic by the conclusion of the 2013
elections. Considering that the matters
elevated to the Court for resolution are
susceptible to repetition in the conduct of
future electoral exercises, these issues will be
resolved in the present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities
normally take a backseat when issues of
substantial and transcendental importance are
presented before the Court. So the Court does
again in this particular case.
Proper Remedy
Respondent claims that certiorari and
prohibition are not the proper remedies that
petitioners have taken to question the assailed
Resolutions of the Comelec. Technically,
respondent may have a point. However,
considering the very important and pivotal
issues raised, and the limited time, such
technicality should not deter the Court from
having to make the final and definitive
pronouncement that everyone else depends
for enlightenment and guidance. [T]his Court
has in the past seen fit to step in and resolve
petitions despite their being the subject of an
improper remedy, in view of the public
importance of the issues raised
therein.27cralawred
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought
before the Court, the issue of locus standi is
raised to question the personality of the
parties invoking the Courts jurisdiction. The
Court has routinely made reference to a
liberalized stance when it comes to petitions
raising issues of transcendental importance to
the country. Invariably, after some
discussions, the Court would eventually grant
standing.28cralawred
In this particular case, respondent also
questions the standing of the petitioners. We
rule for the petitioners. For petitioner-
intervenor Senator Cayetano, he undoubtedly
has standing since he is a candidate whose
ability to reach out to the electorate is
impacted by the assailed Resolutions.
For the broadcast companies, they similarly
have the standing in view of the direct injury
they may suffer relative to their ability to carry
out their tasks of disseminating information
because of the burdens imposed on them.
Nevertheless, even in regard to the broadcast
companies invoking the injury that may be
caused to their customers or the public those
who buy advertisements and the people who
rely on their broadcasts what the Court said
in White Light Corporation v. City of
Manila29 may dispose of the question. In that
case, there was an issue as to whether owners
of establishments offering wash-up rates
may have the requisite standing on behalf of
their patrons equal protection claims relative
to an ordinance of the City of Manila which
prohibited short-time or wash-up
accommodation in motels and similar
establishments. The Court essentially
condensed the issue in this manner: [T]he
crux of the matter is whether or not these
establishments have the requisite standing to
plead for protection of their patrons equal
protection rights.30 The Court then went on to
hold:ChanRoblesVirtualawlibrary
Standing or locus standi is the ability of a
party to demonstrate to the court sufficient
connection to and harm from the law or action
challenged to support that partys
participation in the case. More importantly,
the doctrine of standing is built on the
principle of separation of powers, sparing as it
does unnecessary interference or invalidation
by the judicial branch of the actions rendered
by its co-equal branches of government.
The requirement of standing is a core
component of the judicial system derived
directly from the Constitution. The
constitutional component of standing doctrine
incorporates concepts which concededly are
not susceptible of precise definition. In this
jurisdiction, the extancy of a direct and
personal interest presents the most obvious
cause, as well as the standard test for a
petitioners standing. In a similar vein, the
United States Supreme Court reviewed and
elaborated on the meaning of the three
constitutional standing requirements of injury,
causation, and redressability in Allen v.
Wright.
Nonetheless, the general rules on standing
admit of several exceptions such as the
overbreadth doctrine, taxpayer suits, third
party standing and, especially in the
Philippines, the doctrine of transcendental
importance.
For this particular set of facts, the concept of
third party standing as an exception and the
overbreadth doctrine are appropriate. x x x
x x x x
American jurisprudence is replete with
examples where parties-in-interest were
allowed standing to advocate or invoke the
fundamental due process or equal protection
claims of other persons or classes of persons
injured by state action. x x x the
x x x x
Assuming arguendo that petitioners do not
have a relationship with their patrons for the
former to assert the rights of the latter, the
overbreadth doctrine comes into play. In
overbreadth analysis, challengers to
government action are in effect permitted to
raise the rights of third parties. Generally
applied to statutes infringing on the freedom
of speech, the overbreadth doctrine applies
when a statute needlessly restrains even
constitutionally guaranteed rights. In this
case, the petitioners claim that the Ordinance
makes a sweeping intrusion into the right to
liberty of their clients. We can see that based
on the allegations in the petition, the
Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a
right to assert the constitutional rights of their
clients to patronize their establishments for a
wash-rate time frame.31
If in regard to commercial undertakings, the
owners may have the right to assert a
constitutional right of their clients, with more
reason should establishments which publish
and broadcast have the standing to assert the
constitutional freedom of speech of candidates
and of the right to information of the public,
not to speak of their own freedom of the press.
So, we uphold the standing of petitioners on
that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a
radical departure from the previous COMELEC
resolutions relative to the airtime limitations
on political advertisements. This essentially
consists in computing the airtime on
an aggregate basis involving all the media of
broadcast communications compared to the
past where it was done on a per
station basis. Thus, it becomes immediately
obvious that there was effected a drastic
reduction of the allowable minutes within
which candidates and political parties would
be able to campaign through the air. The
question is accordingly whether this is within
the power of the Comelec to do or not. The
Court holds that it is not within the power of
Comelec to do so.
a. Past elections and airtime limits
 stationbasis.34 Such manner of determining
The authority of the COMELEC to impose airtime limits was likewise adopted for the
airtime limits directly flows from the Fair 2007 elections, through Resolution No.
Election Act (R.A. No. 9006 [2001]) 32 one 7767.35 In the 2010 elections, under
hundred (120) minutes of television Resolution No. 8758,36 the same was again
advertisement and one-hundred eighty (180) adopted. But for the 2013 elections, the
minutes for radio advertisement. For the 2004 COMELEC, through Resolution No. 9615, as
elections, the respondent COMELEC amended by Resolution No. 9631, chose
promulgated Resolution No. to aggregate the total broadcast time among
652033 implementing the airtime limits by the different broadcast media,
applying said limitation on a per thus:ChanRoblesVirtualawlibrary
Section 9. Requirements and/or Limitations on the Use of Election Propaganda through Mass
Media. All parties and bona fide candidates shall have equal access to media time and space for
their election propaganda during the campaign period subject to the following requirements and/or
limitations:ChanRoblesVirtualawlibrary

a. Broadcast Election Propaganda

The duration of an air time that a candidate, or party may use for their broadcast advertisements
or election propaganda shall be, as follows:

For Not more than an aggregate

Candidates/Registered total of one hundred (120)
Political parties for a minutes of television
National Elective advertising, whether appearing
Position on national, regional, or local,
free or cable television, and one
hundred eighty (180) minutes
of radio advertising, whether
airing on national, regional, or
local radio, whether by
purchase or donation

For Candidates/Registered Not more than

Political parties for a Local
Elective Position
an aggregate total of sixty
(60) minutes of television
advertising, whether appearing
on national, regional, or local,
free or cable television, and
ninety (90) minutes of radio
advertising, whether airing on
national, regional, or local radio,
whether by purchase or
donation.

In cases where two or more candidates or
parties whose names, initials, images, brands,
logos, insignias, color motifs, symbols, or
forms of graphical representations are
displayed, exhibited, used, or mentioned
together in the broadcast election propaganda
or advertisements, the length of time during
which they appear or are being mentioned or
promoted will be counted against the airtime
limits allotted for the said candidates or
parties and the cost of the said advertisement
will likewise be considered as their
expenditures, regardless of whoever paid for
the advertisements or to whom the said
advertisements were donated.
x x x x37cralawred
Corollarily, petitioner-intervenor, Senator
Cayetano, alleges:
6.15. The change in the implementation of
Section 6 of R.A. 9006 was undertaken by
respondent Comelec without consultation with
the candidates for the 2013 elections, affected
parties such as media organizations, as well
as the general public. Worse, said change was
put into effect without explaining the basis
therefor and without showing any data in
support of such change. Respondent Comelec
merely maintained that such action is meant
to level the playing field between the moneyed
candidates and those who dont have enough
resources, without particularizing the
empirical data upon which such a sweeping
statement was based. This was evident in the
public hearing held on 31 January 2013 where
petitioner GMA, thru counsel, explained that
no empirical data on the excesses or abuses
of broadcast media were brought to the
attention of the public by respondent
Comelec, or even stated in the Comelec
Resolution No. 9615. Thus
x x x x
Chairman Brillantes
So if we can regulate and amplify, we may
amplify meaning we can expand if we want to.
But the authority of the Commission is if we
do not want to amplify and we think that the
120 or 180 is okay we cannot be compelled to
amplify. We think that 120 or 180 is okay, is
enough.
Atty. Lucila
But with due respect Your Honor, I think the
basis of the resolution is found in the law and
the law has been enterpreted (sic) before in
2010 to be 120 per station, so why the
change, your Honor?
Chairman Brillantes
No, the change is not there, the right to
amplify is with the Commission on Elections.
Nobody can encroach in our right to amplify.
Now, if in 2010 the Commission felt that per
station or per network is the rule then that is
the prerogative of the Commission then they
could amplify it to expand it. If the current
Commission feels that 120 is enough for the
particular medium like TV and 180 for radio,
that is our prerogative. How can you encroach
and what is unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the
Honorable Commission to regulate Your
Honor, we are just raising our concern on the
manner of regulation because as it is right
now, there is a changing mode or sentiments
of the Commission and the public has the right
to know, was there rampant overspending on
political ads in 2010, we were not informed
Your Honor. Was there abuse of the media in
2010, we were not informed Your Honor. So
we would like to know what is the basis of the
sudden change in this limitation, Your Honor.
. And law must have a consistent
interpretation that [is]our position, Your
Honor.
Chairman Brillantes
But my initial interpretation, this is personal to
this representation counsel, is that if the
Constitution allows us to regulate and then it
gives us the prerogative to amplify then the
prerogative to amplify you should leave this
to the discretion of the Commission. Which
means if previous Commissions felt that
expanding it should be part of our authority
that was a valid exercise if we reduce it to
what is provided for by law which is 120-180
per medium, TV, radio, that is also within the
law and that is still within our prerogative as
provided for by the Constitution. If you say we
have to expose the candidates to the public
then I think the reaction should come, the
negative reaction should come from the
candidates not from the media, unless you
have some interest to protect directly. Is there
any interest on the part of the media to
expand it?
Atty. Lucila
Well, our interest Your Honor is to participate
in this election Your Honor and we have been
constantly (sic) as the resolution says and
even in the part involved because you will be
getting some affirmative action time coming
from the media itself and Comelec time
coming from the media itself. So we could like
to be both involved in the whole process of the
exercise of the freedom of suffrage Your
Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional
provision as well as the provision of 9006 is
actually to level the playing field. That should
be the paramount consideration. If we allow
everybody to make use of all their time and all
radio time and TV time then there will be
practically unlimited use of the mass media....
Atty. Lucila
Was there in 2010 Your Honor, was there any
data to support that there was an unlimited
and abuse of a (sic) political ads in the mass
media that became the basis of this change in
interpretation Your Honor? We would like to
know about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in
2010?
Atty. Lucila
As far as the network is concern, there was
none Your Honor.
Chairman Brillantes
There was none......
Atty. Lucila
Im sorry, Your Honor...
Chairman Brillantes
Yes, there was no abuse, okay, but there was
some advantage given to those who took...
who had the more moneyed candidates took
advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there
are poor candidates, there are rich candidates.
No amount of law or regulation can even
level the playing filed (sic) as far as the
economic station in life of the candidates are
concern (sic) our Honor.38
Given the foregoing observations about what
happened during the hearing, Petitioner-
Intervenor went on to allege
that:ChanRoblesVirtualawlibrary
6.16. Without any empirical data upon which
to base the regulatory measures in Section 9
(a), respondent Comelec arbitrarily
changed the rule from per station basis to
aggregate airtime basis. Indeed, no
credence should be given to the cliched
explanation of respondent Comelec (i.e.
leveling the playing field) in its published
statements which in itself is a mere reiteration
of the rationale for the enactment of the
political ad ban of Republic Act No. 6646, and
which has likewise been foisted when said
political ad ban was lifted by R.A. 9006.39
From the foregoing, it does appear that the
Comelec did not have any other basis for
coming up with a new manner of determining
allowable time limits except its own idea as to
what should be the maximum number of
minutes based on its exercise of discretion as
to how to level the playing field. The same
could be encapsulized in the remark of the
Comelec Chairman that if the Constitution
allows us to regulate and then it gives us the
prerogative to amplify then the
prerogative to amplify you should leave this
to the discretion of the
Commission.40cralawred
The Court could not agree with what appears
as a nonchalant exercise of discretion, as
expounded anon.
COMELEC is duty bound to come up
with reasonable basis for changing the
interpretation and implementation of
the airtime limits
There is no question that the COMELEC is the
office constitutionally and statutorily
authorized to enforce election laws but it
cannot exercise its powers without limitations
or reasonable basis. It could not simply
adopt measures or regulations just because it
feels that it is the right thing to do, in so far
as it might be concerned. It does have
discretion, but such discretion is something
that must be exercised within the bounds and
intent of the law. The COMELEC is not free to
simply change the rules especially if it has
consistently interpreted a legal provision in a
particular manner in the past. If ever it has to
change the rules, the same must be properly
explained with sufficient basis.
Based on the transcripts of the hearing
conducted by the COMELEC after it had
already promulgated the Resolution, the
respondent did not fully explain or justify the
change in computing the airtime allowed
candidates and political parties, except to
make reference to the need to level the
playing field. If the per station basis was
deemed enough to comply with that objective
in the past, why should it now be suddenly
inadequate? And, the short answer to that
from the respondent, in a manner which
smacks of overbearing exercise of discretion,
is that it is within the discretion of the
COMELEC. As quoted in the transcript, the
right to amplify is with the COMELEC. Nobody
can encroach in our right to amplify. Now, if in
2010 the Commission felt that per station or
per network is the rule then that is the
prerogative of the Commission then they
could amplify it to expand it. If the current
Commission feels that 120 is enough for the
particular medium like TV and 180 for radio,
that is our prerogative. How can you encroach
and what is unconstitutional about
it?41cralawred
There is something basically wrong with that
manner of explaining changes in
administrative rules. For one, it does not really
provide a good basis for change. For another,
those affected by such rules must be given a
better explanation why the previous rules are
no longer good enough. As the Court has said
in one case:ChanRoblesVirtualawlibrary
While stability in the law, particularly in the
business field, is desirable, there is no demand
that the NTC slavishly follow
precedent. However, we think it essential, for
the sake of clarity and intellectual honesty,
that if an administrative agency decides
inconsistently with previous action, that it
explain thoroughly why a different result is
warranted, or if need be, why the previous
standards should no longer apply or should be
overturned. Such explanation is warranted in
order to sufficiently establish a decision as
having rational basis. Any inconsistent
decision lacking thorough, ratiocination in
support may be struck down as being
arbitrary. And any decision with absolutely
nothing to support it is a nullity.42
What the COMELEC came up with does not
measure up to that level of requirement and
accountability which elevates administrative
rules to the level of respectability and
acceptability. Those governed by
administrative regulations are entitled to a
reasonable and rational basis for any changes
in those rules by which they are supposed to
live by, especially if there is a radical
departure from the previous ones.
The COMELEC went beyond the
authority granted it by the law in
adopting aggregate basis in the
determination of allowable airtime
The law, which is the basis of the regulation
subject of these petitions, pertinently
provides:ChanRoblesVirtualawlibrary
6.2. (a) Each bona fide candidate or registered
political party for a nationally elective office
shall be entitled to not more than one hundred
twenty (120) minutes of television
advertisement and one hundred eighty (180)
minutes of radio advertisement whether by
purchase or donation.
(b) Each bona fide candidate or registered
political party for a locally elective office shall
be entitled to not more than sixty (60)
minutes of television advertisement and
ninety (90) minutes of radio advertisement
whether by purchase or donation; x x x
The law, on its face, does not justify a
conclusion that the maximum allowable
airtime should be based on the totality of
possible broadcast in all television or radio
stations. Senator Cayetano has called our
attention to the legislative intent relative to
the airtime allowed that it should be on a
per station basis.43cralawred
This is further buttressed by the fact that
the Fair Election Act (R.A. No. 9006) actually
repealed the previous provision, Section 11(b)
of Republic Act No. 6646,44 which prohibited
direct political advertisements the so-called
political ad ban. If under the previous law,
no candidate was allowed to directly buy or
procure on his own his broadcast or print
campaign advertisements, and that he must
get it through the COMELEC
Time or COMELEC Space, R.A. No. 9006
relieved him or her from that restriction and
allowed him or her to broadcast time or print
space subject to the limitations set out in the
law. Congress, in enacting R.A. No. 9006, felt
that the previous law was not an effective and
efficient way of giving voice to the people.
Noting the debilitating effects of the previous
law on the right of suffrage and Philippine
democracy, Congress decided to repeal such
rule by enacting the Fair Election Act.
In regard to the enactment of the new law,
taken in the context of the restrictive nature
of the previous law, the sponsorship speech of
Senator Raul Roco is
enlightening:ChanRoblesVirtualawlibrary
The bill seeks to repeal Section 85 of the
Omnibus Election Code and Sections 10 and
11 of RA 6646. In view of the importance of
their appeal in connection with the thrusts of
the bill, I hereby quote these sections in
full:ChanRoblesVirtualawlibrary
SEC. 85. Prohibited forms of election
propaganda. It shall be
unlawful:ChanRoblesVirtualawlibrary
(a) To print, publish, post or distribute any
poster, pamphlet, circular, handbill, or printed
matter urging voters to vote for or against any
candidate unless they hear the names and
addresses of the printed and payor as required
in Section 84 hereof;
(b) To erect, put up, make use of, attach,
float or display any billboard, tinplate-poster,
balloons and the like, of whatever size, shape,
form or kind, advertising for or against any
candidate or political party;
(c) To purchase, manufacture, request,
distribute or accept electoral propaganda
gadgets, such as pens, lighters, fans of
whatever nature, flashlights, athletic goods or
materials, wallets, shirts, hats, bandannas,
matches, cigarettes and the like, except that
campaign supporters accompanying a preceding section, at the candidates own
candidate shall be allowed to wear hats and/or
shirts or T-shirts advertising a candidate;
(d) To show or display publicly any
advertisement or propaganda for or against
any candidate by means of cinematography,
audio-visual units or other screen projections
except telecasts which may be allowed as
hereinafter provided; and
(e) For any radio broadcasting or television
station to sell or give free of charge airtime for
campaign and other political purposes except
as authorized in this Code under the rules and
regulations promulgated by the Commission
pursuant thereto;
Any prohibited election propaganda gadget or
advertisement shall be stopped, confiscated or
torn down by the representative of the
Commission upon specific authority of the
Commission.
SEC. 10. Common Poster Areas. The
Commission shall designate common poster
areas in strategic public places such as
markets, barangay centers and the like
wherein candidates can post, display or
exhibit election propaganda to announce or
further their candidacy.
Whenever feasible common billboards may
be installed by the Commission and/or non-
partisan private or civic organizations which
the Commission may authorize whenever
available, after due notice and hearing, in
strategic areas where it may readily be seen
or read, with the heaviest pedestrian and/or
vehicular traffic in the city or municipality.
The space in such common poster areas or
billboards shall be allocated free of charge, if
feasible, equitably and impartially among the
candidates in the province, city or
municipality.
SEC. 11. Prohibited Forms of Election
Propaganda. In addition to the forms of
election propaganda prohibited under Section
85 of Batas Pambansa Blg. 881, it shall be
unlawful: (a) to draw, paint, inscribe, write,
post, display or publicly exhibit any election
propaganda in any place, whether private or
public, except in common poster areas and/or
billboards provided in the immediately
residence, or at the campaign headquarters of
the candidate or political
party: Provided, That such posters or election
propaganda shall in no case exceed two (2)
feet by three (3) feet in area; Provided,
further, That at the site of and on the occasion
of a public meeting or rally, streamers, not
more than two (2) feet and not exceeding
three (3) feet by eight (8) each may be
displayed five (5) days before the date of the
meeting or rally, and shall be removed within
twenty-four (24) hours after said meeting or
rally; and
(b) For any newspapers, radio broadcasting
or television station, or other mass media, or
any person making use of the mass media to
sell or give for free of charge print space or air
time for campaign or other political purposes
except to the Commission as provided under
Section 90 and 92 of Batas Pambansa Blg.
881. Any mass media columnist,
commentator, announcer or personality who is
a candidate for any elective public office shall
take a leave of absence from his work as such
during the campaign.
The repeal of the provision on the Common
Poster Area implements the strong
recommendations of the Commission on
Elections during the hearings. It also seeks to
apply the doctrine enunciated by the Supreme
Court in the case of Blo Umpar Adiong vs.
Commission on Elections, 207 SCRA 712, 31
March 1992. Here a unanimous Supreme
Court ruled: The COMELECs prohibition on
the posting of decals and stickers on mobile
places whether public or private except [in]
designated areas provided for by the
COMELEC itself is null and void on
constitutional grounds.
For the foregoing reasons, we commend to our
colleagues the early passage of Senate Bill No.
1742. In so doing, we move one step towards
further ensuring free, orderly, honest,
peaceful and credible elections as mandated
by the Constitution.45
Given the foregoing background, it is
therefore ineluctable to conclude that
Congress intended to provide a more
expansive and liberal means by which the
candidates, political parties, citizens and other
stake holders in the periodic electoral exercise
may be given a chance to fully explain and
expound on their candidacies and platforms of
governance, and for the electorate to be given
a chance to know better the personalities
behind the candidates. In this regard, the
media is also given a very important part in
that undertaking of providing the means by
which the political exercise becomes an
interactive process. All of these would be
undermined and frustrated with the kind of
regulation that the respondent came up with.
The respondent gave its own understanding of
the import of the legislative deliberations on
the adoption of R.A. No. 9006 as
follows:ChanRoblesVirtualawlibrary
The legislative history of R.A. 9006 clearly
shows that Congress intended to impose the
per candidate or political party aggregate total
airtime limits on political advertisements and
election propaganda. This is evidenced by the
dropping of the per day per station language
embodied in both versions of the House of
Representatives and Senate bills in favour of
the each candidate and not more than all
limitations now found in Section 6 of R.A.
9006.
The pertinent portions of House Bill No. 9000
and Senate Bill No. 1742 read as
follows:ChanRoblesVirtualawlibrary
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby
amended to read as follows:
Sec. 86. Regulation of Election Propaganda
Through Mass Media.
xxx xxx xxx
A) The total airtime available to the
candidate and political party, whether by
purchase or by donation, shall be limited to
five (5) minutes per day in each television,
cable television and radio stations during
the applicable campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and
Time. All registered parties and bona fide
candidates shall have equal access to media
space and time. The following guidelines may
be amplified by the COMELEC.
xxx xxx xxx
2. The total airtime available
for each registered party and bona fide
candidate whether by purchase or donation
shall not exceed a total of one (1) minute per
day per television or radio station.
(Emphasis supplied.)
As Section 6 of R.A. 9006 is presently worded,
it can be clearly seen that the legislature
intended the aggregate airtime limits to be
computed on per candidate or party basis.
Otherwise, if the legislature intended the
computation to be on per station basis, it could
have left the original per day per station
formulation.46
The Court does not agree. It cannot bring itself
to read the changes in the bill as disclosing an
intent that the COMELEC wants this Court to
put on the final language of the law. If
anything, the change in language meant that
the computation must not be based on a per
day basis for each television or radio station.
The same could not therefore lend itself to an
understanding that the total allowable time is
to be done on an aggregate basis for
television or radio stations.
Clearly, the respondent in this instance went
beyond its legal mandate when it provided for
rules beyond what was contemplated by the
law it is supposed to implement. As we held
in Lokin, Jr. v. Commission on
Elections:47cralawred
The COMELEC, despite its role as the
implementing arm of the Government in the
enforcement and administration of all laws
and regulations relative to the conduct of an
election, has neither the authority nor the
license to expand, extend, or add anything to
the law it seeks to implement thereby. The
IRRs the COMELEC issued for that purpose
should always be in accord with the law to be
implemented, and should not override,
supplant, or modify the law. It is basic that the
IRRs should remain consistent with the law
they intend to carry out.
Indeed, administrative IRRs adopted by a
particular department of the Government
under legislative authority must be in
harmony with the provisions of the law, and
should be for the sole purpose of carrying the
laws general provisions into effect. The law
itself cannot be expanded by such IRRs,
because an administrative agency cannot
amend an act of Congress.48
In the case of Lokin, Jr., the COMELECs
explanation that the Resolution then in
question did not add anything but merely
reworded and rephrased the statutory
provision did not persuade the Court. With
more reason here since the COMELEC not only
reworded or rephrased the statutory provision
it practically replaced it with its own idea
of what the law should be, a matter that
certainly is not within its authority. As the
Court said in Villegas v. Subido:49cralawred
One last word. Nothing is better settled in the
law than that a public official exercises power,
not rights. The government itself is merely an
agency through which the will of the state is
expressed and enforced. Its officers therefore
are likewise agents entrusted with the
responsibility of discharging its functions. As
such there is no presumption that they are
empowered to act. There must be a delegation
of such authority, either express or implied. In
the absence of a valid grant, they are devoid
of power. What they do suffers from a fatal
infirmity. That principle cannot be sufficiently
stressed. In the appropriate language of Chief
Justice Hughes: It must be conceded that
departmental zeal may not be permitted to
outrun the authority conferred by statute.
Neither the high dignity of the office nor the
righteousness of the motive then is an
acceptable substitute. Otherwise the rule of
law becomes a myth. Such an eventuality, we
must take all pains to avoid.50
So it was then. So does the rule still remains
the same.
Section 9 (a) of COMELEC Resolution
No. 9615 on airtime limits also goes
against the constitutional guaranty of
freedom of expression, of speech
and of the press
The guaranty of freedom to speak is useless
without the ability to communicate and
disseminate what is said. And where there is
a need to reach a large audience, the need to
access the means and media for such
dissemination becomes critical. This is where
the press and broadcast media come along. At
the same time, the right to speak and to reach
out would not be meaningful if it is just a token
ability to be heard by a few. It must be
coupled with substantially reasonable means
by which the communicator and the audience
could effectively interact. Section 9 (a) of
COMELEC Resolution No. 9615, with its
adoption of the aggregate-based airtime
limits unreasonably restricts the guaranteed
freedom of speech and of the press.
Political speech is one of the most important
expressions protected by the Fundamental
Law. [F]reedom of speech, of expression, and
of the press are at the core of civil liberties and
have to be protected at all costs for the sake
of democracy.51 Accordingly, the same must
remain unfettered unless otherwise justified
by a compelling state interest.
In regard to limitations on political speech
relative to other state interests, an American
case observed:ChanRoblesVirtualawlibrary
A restriction on the amount of money a person
or group can spend on political communication
during a campaign necessarily reduces the
quantity of expression by restricting the
number of issues discussed, the depth of their
exploration, and the size of the audience
reached. This is because virtually every means
of communicating ideas in todays mass
society requires the expenditure of money.
The distribution of the humblest handbill or
leaflet entails printing, paper, and circulation
costs. Speeches and rallies generally
necessitate hiring a hall and publicizing the
event. The electorates increasing dependence
on television, radio, and other mass media for
news and information has made these
expensive modes of communication
indispensable instruments of effective political
speech.
The expenditure limitations contained in the
Act represent substantial, rather than merely
theoretical restraints on the quantity and
diversity of political speech. The $1,000 ceiling
on spending relative to a clearly identified
candidate, 18 U.S.C. 608(e)(1) (1970 ed.,
Supp. IV), would appear to exclude all citizens
and groups except candidates, political
parties, and the institutional press from any
significant use of the most effective modes of
communication. Although the Acts limitations
on expenditures by campaign organizations
and political parties provide substantially
greater room for discussion and debate, they
would have required restrictions in the scope
of a number of past congressional and
Presidential campaigns and would operate to
constrain campaigning by candidates who
raise sums in excess of the spending ceiling.52
Section 9 (a) of COMELEC Resolution No. 9615
comes up with what is challenged as being an
unreasonable basis for determining the
allowable air time that candidates and political
parties may avail of. Petitioner GMA came up
with its analysis of the practical effects of such
a regulation:ChanRoblesVirtualawlibrary
5.8. Given the reduction of a candidates
airtime minutes in the New Rules, petitioner
GMA estimates that a national candidate will
only have 120 minutes to utilize for his
political advertisements in television during
the whole campaign period of 88 days, or will
only have 81.81 seconds per day TV
exposure allotment. If he chooses to place his
political advertisements in the 3 major TV
networks in equal allocation, he will only
have 27.27 seconds of airtime per
network per day. This barely translates to 1
advertisement spot on a 30-second spot basis
in television.
5.9. With a 20-hour programming per day
and considering the limits of a stations
coverage, it will be difficult for 1 advertising
spot to make a sensible and feasible
communication to the public, or in political
propaganda, to make known [a candidates]
qualifications and stand on public issues.
5.10 If a candidate loads all of his 81.81
seconds per day in one network, this will
translate to barely three 30-second
advertising spots in television on a daily basis
using the same assumptions above.
5.11 Based on the data from the 2012 Nielsen
TV audience measurement in Mega Manila, the
commercial advertisements in television are
viewed by only 39.2% of the average total
day household audience if such
advertisements are placed with petitioner
GMA, the leading television network
nationwide and in Mega Manila. In effect,
under the restrictive aggregate airtime limits
in the New Rules, the three 30-second political
advertisements of a candidate in petitioner
GMA will only be communicated to barely 40%
of the viewing audience, not even the voting
population, but only in Mega Manila, which is
defined by AGB Nielsen Philippines to cover
Metro Manila and certain urban areas in the
provinces of Bulacan, Cavite, Laguna, Rizal,
Batangas and Pampanga. Consequently,
given the voting population distribution and
the drastically reduced supply of airtime as a
result of the New Rules aggregate airtime
limits, a national candidate will be forced to
use all of his airtime for political
advertisements in television only in urban
areas such as Mega Manila as a political
campaign tool to achieve maximum exposure.
5.12 To be sure, the people outside of Mega
Manila or other urban areas deserve to be
informed of the candidates in the national
elections, and the said candidates also enjoy
the right to be voted upon by these informed
populace.53
The Court agrees. The assailed rule on
aggregate-based airtime limits is
unreasonable and arbitrary as it unduly
restricts and constrains the ability of
candidates and political parties to reach out
and communicate with the people. Here, the
adverted reason for imposing the aggregate-
based airtime limits leveling the playing
field does not constitute a compelling state
interest which would justify such a substantial
restriction on the freedom of candidates and
political parties to communicate their ideas,
philosophies, platforms and programs of
government. And, this is specially so in the
absence of a clear-cut basis for the imposition
of such a prohibitive measure. In this
particular instance, what the COMELEC has
done is analogous to letting a bird fly after one
has clipped its wings.
It is also particularly unreasonable and
whimsical to adopt the aggregate-based time
limits on broadcast time when we consider
that the Philippines is not only composed of so
many islands. There are also a lot of
languages and dialects spoken among the
citizens across the country. Accordingly, for a
national candidate to really reach out to as
many of the electorates as possible, then it
might also be necessary that he conveys his
message through his advertisements in
languages and dialects that the people may
more readily understand and relate to. To add
all of these airtimes in different dialects would
greatly hamper the ability of such candidate to
express himself a form of suppression of his
political speech.
Respondent itself states that [t]elevision is
arguably the most cost-effective medium of
dissemination. Even a slight increase in
television exposure can significantly boost a
candidate's popularity, name recall and
electability.54 If that be so, then drastically
curtailing the ability of a candidate to
effectively reach out to the electorate would
unjustifiably curtail his freedom to speak as a
means of connecting with the people.
Finally on this matter, it is pertinent to quote
what Justice Black wrote in his concurring
opinion in the landmark Pentagon
Papers case: In the First Amendment, the
Founding Fathers gave the free press the
protection it must have to fulfill its essential
role in our democracy. The press was to serve
the governed, not the governors. The
Government's power to censor the press was
abolished so that the press would remain
forever free to censure the Government. The
press was protected so that it could bare the
secrets of government and inform the people.
Only a free and unrestrained press can
effectively expose deception in
government.55cralawred
In the ultimate analysis, when the press is
silenced, or otherwise muffled in its
undertaking of acting as a sounding board, the
people ultimately would be the victims.
Section 9 (a) of Resolution 9615 is
violative of the peoples
right to suffrage
Fundamental to the idea of a democratic and
republican state is the right of the people to
determine their own destiny through the
choice of leaders they may have in
government. Thus, the primordial importance
of suffrage and the concomitant right of the
people to be adequately informed for the
intelligent exercise of such birthright. It was
said that:ChanRoblesVirtualawlibrary
x x x As long as popular government is an end
to be achieved and safeguarded, suffrage,
whatever may be the modality and form
devised, must continue to be the means by
which the great reservoir of power must be
emptied into the receptacular agencies
wrought by the people through their
Constitution in the interest of good
government and the common weal.
Republicanism, in so far as it implies the
adoption of a representative type of
government, necessarily points to the
enfranchised citizen as a particle of popular
sovereignty and as the ultimate source of the
established authority. He has a voice in his
Government and whenever possible it is the
solemn duty of the judiciary, when called upon
to act in justifiable cases, to give it efficacy
and not to stifle or frustrate it. This,
fundamentally, is the reason for the rule that
ballots should be read and appreciated, if not
with utmost, with reasonable, liberality. x x x56
It has also been said that [c]ompetition in
ideas and governmental policies is at the core
of our electoral process and of the First
Amendment freedoms.57 Candidates and
political parties need adequate breathing
space including the means to disseminate
their ideas. This could not be reasonably
addressed by the very restrictive manner by
which the respondent implemented the time
limits in regard to political advertisements in
the broadcast media.
Resolution No. 9615 needs
prior hearing before adoption
The COMELEC promulgated Resolution No.
9615 on January 15, 2013 then came up with
a public hearing on January 31, 2013 to
explain what it had done, particularly on the
aggregate-based air time limits. This
circumstance also renders the new regulation,
particularly on the adoption of
the aggregate-based airtime limit,
questionable. It must not be overlooked that
the new Resolution introduced a radical
change in the manner in which the rules on
airtime for political advertisements are to be
reckoned. As such there is a need for adequate
and effective means by which they may be
adopted, disseminated and implemented. In
this regard, it is not enough that they be
published or explained after they have
been adopted.
While it is true that the COMELEC is an
independent office and not a mere
administrative agency under the Executive
Department, rules which apply to the latter
must also be deemed to similarly apply to the
former, not as a matter of administrative
convenience but as a dictate of due process.
And this assumes greater significance
considering the important and pivotal role that
the COMELEC plays in the life of the nation.
Thus, whatever might have been said
in Commissioner of Internal Revenue v. Court
of Appeals,58 should also apply mutatis
mutandis to the COMELEC when it comes to
promulgating rules and regulations which
adversely affect, or impose a heavy and
substantial burden on, the citizenry in a
matter that implicates the very nature of
government we have
adopted:ChanRoblesVirtualawlibrary
It should be understandable that when an
administrative rule is merely interpretative in
nature, its applicability needs nothing further
than its bare issuance for it gives no real
consequence more than what the law itself has
already prescribed. When, upon the other
hand, the administrative rule goes beyond
merely providing for the means that can
facilitate or render least cumbersome the
implementation of the law but substantially
adds to or increases the burden of those
governed, it behooves the agency to accord
at least to those directly affected a chance to
be heard, and thereafter to be duly informed,
before that new issuance is given the force
and effect of law.
A reading of RMC 3793, particularly
considering the circumstances under which it
has been issued, convinces us that the circular
cannot be viewed simply as a corrective
measure (revoking in the process the previous
holdings of past Commissioners) or merely as
construing Section 142(c)(1) of the NIRC, as
amended, but has, in fact and most
importantly, been made in order to place
Hope Luxury, Premium More and
Champion within the classification
of locally manufactured cigarettes bearing
foreign brands and to thereby have them
covered by RA 7654. Specifically, the new law
would have its amendatory provisions applied
to locally manufactured cigarettes which at
the time of its effectivity were not so classified
as bearing foreign brands. x x x In so doing,
the BIR not simply interpreted the law; verily,
it legislated under its quasi-legislative
authority. The due observance of the
requirements of notice, of hearing, and of
publication should not have been then
ignored.59
For failing to conduct prior hearing before
coming up with Resolution No. 9615, said
Resolution, specifically in regard to the new
rule on aggregate airtime is declared defective
and ineffectual.
Resolution No. 9615 does not impose
an unreasonable burden on the
broadcast industry
It is a basic postulate of due process,
specifically in relation to its substantive
component, that any governmental rule or
regulation must be reasonable in its
operations and its impositions. Any
restrictions, as well as sanctions, must be
reasonably related to the purpose or objective
of the government in a manner that would not
work unnecessary and unjustifiable burdens
on the citizenry. Petitioner GMA assails certain
requirements imposed on broadcast stations
as unreasonable. It
explained:ChanRoblesVirtualawlibrary
5.40 Petitioner GMA currently operates and
monitors 21 FM and AM radio stations
nationwide and 8 originating television
stations (including its main transmitter in
Quezon City) which are authorized to dechain
national programs for airing and insertion of
local content and advertisements.
5.41 In light of the New Rules wherein a
candidates airtime minutes are applied on an
aggregate basis and considering that said
Rules declare it unlawful in Section 7(d)
thereof for a radio, television station or other
mass media to sell or give for free airtime to
a candidate in excess of that allowed by law or
by said New
Rules:ChanRoblesVirtualawlibrary
Section 7. Prohibited Forms of Election
Propaganda During the campaign period, it
is unlawful:ChanRoblesVirtualawlibrary
xxx xxx xxx
(d) for any newspaper or publication, radio,
television or cable television station, or
other mass media, or any person making
use of the mass media to sell or to give
free of charge print space or air time for
campaign or election propaganda purposes to
any candidate or party in excess of the
size, duration or frequency authorized by
law or these rules;
xxx xxx xxx
(Emphasis supplied)
petitioner GMA submits that compliance with
the New Rules in order to avoid administrative
or criminal liability would be unfair, cruel and
oppressive.
x x x x.
5.43 In the present situation wherein airtime
minutes shall be shared by all television and
radio stations, broadcast mass media
organizations would surely encounter
insurmountable difficulties in monitoring the
airtime minutes spent by the numerous
candidates for various elective positions, in
real time.
5.44 An inquiry with the National
Telecommunications Commission (NTC) bears
out that there are 372 television stations and
398 AM and 800 FM radio stations nationwide
as of June 2012. In addition, there are 1,113
cable TV providers authorized by the NTC to
operate within the country as of the said date.
5.45 Given such numbers of broadcast
entities and the necessity to monitor political
advertisements pursuant to the New Rules,
petitioner GMA estimates that monitoring
television broadcasts of all authorized
television station would
involve 7,440 manhours per day. To
aggravate matters, since a candidate may also
spend his/her broadcasting minutes on cable
TV, additional 281,040 manhours per day
would have to be spent in monitoring the
various channels carried by cable TV
throughout the Philippines. As far as radio
broadcasts (both AM and FM stations) are
concerned, around 23,960manhours per day
would have to be devoted by petitioner GMA
to obtain an accurate and timely
determination of a political candidates
remaining airtime minutes. During the
campaign period, petitioner GMA would have
to spend an estimated 27,494,720manhours
in monitoring the election campaign
commercials of the different candidates in the
country.
5.46 In order to carry-out the obligations
imposed by the New Rules, petitioner GMA
further estimates that it would need to engage
and train 39,055 additional persons on an
eight-hour shift, and assign them all over the
country to perform the required monitoring of
radio, television and cable TV broadcasts. In
addition, it would likewise need to allot radio,
television, recording equipment and
computers, as well as telecommunications
equipment, for this surveillance and
monitoring exercise, thus imputing additional
costs to the company. Attached herewith are
the computations explaining how the afore-
said figures were derived and the conservative
assumptions made by petitioner GMA in
reaching said figures, as Annex H.
5.47 Needless to say, such time, manpower
requirements, expense and effort would have
to be replicated by each and every radio
station to ensure that they have properly
monitored around 33 national and more than
40,000 local candidates airtime minutes and
thus, prevent any risk of administrative and
criminal liability.60
The Court cannot agree with the contentions
of GMA. The apprehensions of the petitioner
appear more to be the result of a
misappreciation of the real import of the
regulation rather than a real and present
threat to its broadcast activities. The Court is
more in agreement with the respondent when
it explained that:ChanRoblesVirtualawlibrary
The legal duty of monitoring lies with the
Comelec. Broadcast stations are merely
required to submit certain documents to aid
the Comelec in ensuring that candidates are
not sold airtime in excess of the allowed limits.
These documents include: (1) certified true
copies of broadcast logs, certificates of
performance, and certificates of acceptance,
or other analogous record on specified dates
(Section 9[d]3, Resolution No. 9615, in
relation to Section 6.2, R.A. 9006; and (2)
copies of all contract for advertising,
promoting or opposing any political party or
the candidacy of any person for public office
within five (5) days after its signing (Section
6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast
stations to do monitoring, much less
monitoring in real time. GMA grossly
exaggerates when it claims that the non-
existent duty would require them to hire and
train an astounding additional 39,055
personnel working on eight-hour shifts all over
the country.61
The Court holds, accordingly, that, contrary to
petitioners contention, the Reporting
Requirement for the Comelecs monitoring is
reasonable.
Further, it is apropos to note that, pursuant to
Resolution No. 9631,62 the respondent revised
the third paragraph of Section 9 (a). As
revised, the provision now
reads:ChanRoblesVirtualawlibrary
Appearance or guesting by a candidate on
any bona fide newscast, bona fide news
interview, bona fide news documentary, if the
appearance of the candidate is incidental to
the presentation of the subject or subjects
covered by the news documentary, or on-the-
spot coverage of bona fide news events,
including but not limited to events sanctioned
by the Commission on Elections, political
conventions, and similar activities, shall not be
deemed to be broadcast election propaganda
within the meaning of this provision. For
purposes of monitoring by the COMELEC
and ensuring that parties and candidates
were afforded equal opportunities to
promote their candidacy, the media
entity shall give prior notice to the
COMELEC, through the appropriate
Regional Election Director (RED), or in
the case of the National Capital Region
(NCR), the Education and Information
Department (EID). If such prior notice is
not feasible or practicable, the notice
shall be sent within twenty-four (24)
hours from the first broadcast or
publication. Nothing in the foregoing
sentence shall be construed as relieving
broadcasters, in connection with the
presentation of newscasts, news interviews,
news documentaries, and on-the-spot
coverage of news events, from the obligation
imposed upon them under Sections 10 and 14
of these Rules. 63
Further, the petitioner in G.R. No. 205374
assails the constitutionality of such monitoring
requirement, contending, among others, that
it constitutes prior restraint. The Court finds
otherwise. Such a requirement is a reasonable
means adopted by the COMELEC to ensure
that parties and candidates are afforded equal
opportunities to promote their respective
candidacies. Unlike the restrictive aggregate-
based airtime limits, the directive to give prior
notice is not unduly burdensome and
unreasonable, much less could it be
characterized as prior restraint since there is
no restriction on dissemination of information
before broadcast.
Additionally, it is relevant to point out that in
the original Resolution No. 9615, the
paragraph in issue was worded in this
wise:ChanRoblesVirtualawlibrary
Appearance or guesting by a candidate on any
bona fide newscast, bona fide news interview,
bona fide news documentary, if the
appearance of the candidate is incidental to
the presentation of the subject or subjects
covered by the news documentary, or on-the-
spot coverage of bona fide news events,
including but not limited to events sanctioned
by the Commission on Elections, political
conventions, and similar activities, shall not be
deemed to be broadcast election propaganda
within the meaning of this provision. To
determine whether the appearance or
guesting in a program is bona fide, the
broadcast stations or entities must show
that (1) prior approval of the Commission
was secured; and (2) candidates and
parties were afforded equal
opportunities to promote their candidacy.
Nothing in the foregoing sentence shall be
construed as relieving broadcasters, in
connection with the presentation of
newscasts, news interviews, news
documentaries, and on-the-spot coverage of
news events, from the obligation imposed
upon them under Sections 10 and 14 of these
Rules. 64
Comparing the original with the revised
paragraph, one could readily appreciate what
the COMELEC had done to modify the
requirement from prior approval to prior
notice. While the former may be suggestive
of a censorial tone, thus inviting a charge of
prior restraint, the latter is more in the nature
of a content-neutral regulation designed to
assist the poll body to undertake its job of
ensuring fair elections without having to
undertake any chore of approving or
disapproving certain expressions.
Also, the right to reply provision is
reasonable
In the same way that the Court finds the prior
notice requirement as not constitutionally
infirm, it similarly concludes that the right to
reply provision is reasonable and consistent
with the constitutional mandate.
Section 14 of Resolution No. 9615, as revised
by Resolution No. 9631,
provides:ChanRoblesVirtualawlibrary
SECTION 14. Right to Reply. All registered
political parties, party-list groups or coalitions
and bona fide candidates shall have the right
to reply to charges published or aired against
them. The reply shall be given publicity by the
newspaper, television, and/or radio station
which first printed or aired the charges with
the same prominence or in the same page or
section or in the same time slot as the first
statement.
Registered political parties, party-list groups
or coalitions and bona fide candidates may
invoke the right to reply by submitting within
a non-extendible period of forty-eight hours
from first broadcast or publication, a formal
verified claim against the media outlet to the
COMELEC, through the appropriate RED. The
claim shall include a detailed enumeration of
the circumstances and occurrences which
warrant the invocation of the right to reply and
must be accompanied by supporting evidence,
such a copy of the publication or recording of
the television or radio broadcast, as the case
may be. If the supporting evidence is not yet
available due to circumstances beyond the
power of the claimant, the latter shall
supplement his claim as soon as the
supporting evidence becomes available,
without delay on the part of the claimant. The
claimant must likewise furnish a copy of the
verified claim and its attachments to the
media outlet concerned prior to the filing of
the claim with the COMELEC.
The COMELEC, through the RED, shall view
the verified claim within forty-eight (48) hours
from receipt thereof, including supporting
evidence, and if circumstances warrant, give
notice to the media outlet involved for
appropriate action, which shall, within forty-
eight (48) hours, submit its comment, answer
or response to the RED, explaining the action
it has taken to address the claim. The media
outlet must likewise furnish a copy of the said
comment, answer or response to the claimant
invoking the right to reply.
Should the claimant insist that his/her right to
reply was not addressed, he/she may file the
appropriate petition and/or complaint before
the Commission on Elections or its field
offices, which shall be endorsed to the Clerk of
Court.
The attack on the validity of the right to
reply provision is primarily anchored on the
alleged ground of prior restraint, specifically in
so far as such a requirement may have a
chilling effect on speech or of the freedom of
the press.
Petitioner ABC states, inter alia:
5.145. A conscious and detailed
consideration of the interplay of the relevant
interests the constitutional mandate
granting candidates the right to reply and the
inviolability of the constitutional freedom of
expression, speech, and the press will show
that the Right to Reply, as provided for in the
Assailed Resolution, is an impermissible
restraint on these fundamental freedoms.
5.146. An evaluation of the factors set forth in
Soriano (for the balancing of interests test)
with respect to the present controversy will
show that the Constitution does not tilt the
balance in favor of the Right to Reply provision
in the Assailed Resolution and the supposed
governmental interest it attempts to further.65
The Constitution itself provides as part of the
means to ensure free, orderly, honest, fair and
credible elections, a task addressed to the
COMELEC to provide for a right to
reply.66 Given that express constitutional
mandate, it could be seen that the
Fundamental Law itself has weighed in on the
balance to be struck between the freedom of
the press and the right to reply. Accordingly,
one is not merely to see the equation as purely
between the press and the right to reply.
Instead, the constitutionally-mandated
desiderata of free, orderly, honest, peaceful,
and credible elections would necessarily have
to be factored in trying to see where the
balance lies between press and the demands
of a right-to-reply.
Moreover, as already discussed by the Court
in Telecommunications and Broadcast
Attorneys of the Philippines, Inc. v.
Commission on Elections.67cralawred
In truth, radio and television broadcasting
companies, which are given franchises, do not
own the airwaves and frequencies through
which they transmit broadcast signals and
images. They are merely given the temporary
privilege of using them. Since a franchise is a
mere privilege, the exercise of the privilege
may reasonably be burdened with the
performance by the grantee of some form of
public service. x x x68
Relevant to this aspect are these passages
from an American Supreme Court decision
with regard to broadcasting, right to reply
requirements, and the limitations on
speech:ChanRoblesVirtualawlibrary
We have long recognized that each medium
of expression presents special First
Amendment problems. Joseph Burstyn, Inc.
v. Wilson, 343 U.S. 495, 502-503, 96 L Ed
1098, 72 S Ct 777. And of all forms of
communication, it is broadcasting that
has received the most limited First
Amendment protection. Thus, although
other speakers cannot be licensed except
under laws that carefully define and narrow
official discretion, a broadcaster may be
deprived of his license and his forum if the
Commission decides that such an action would
serve the public interest, convenience, and
necessity. Similarly, although the First
Amendment protects newspaper
publishers from being required to print
the replies of those whom they criticize,
Miami Herald Publishing Co. v. Tornillo, 418
U.S. 241, 41 L Ed 2d 730, 94 S Ct 2831, it
affords no such protection to
broadcasters; on the contrary, they must
give free time to the victims of their
criticism. Red Lion Broadcasting Co. v. FCC,
395 U.S. 367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are
complex, but two have relevance to the
present case. First, the broadcast media have
established a uniquely pervasive presence in
the lives of all Americans. Patently offensive,
indecent material presented over the airwaves
confronts the citizen not only in public, but
also in the privacy of the home, where the
individual's right to be left alone plainly
outweighs the First Amendment rights of an
intruder. Rowan v. Post Office Dept., 397 U.S.
728, 25 L Ed 2d 736, 90 S Ct 1484. Because
the broadcast audience is constantly tuning in
and out, prior warnings cannot completely
protect the listener or viewer from unexpected
program content. To say that one may avoid
further offense by turning off the radio when
he hears indecent language is like saying that
the remedy for an assault is to run away after
the first blow. One may hang up on an
indecent phone call, but that option does not
give the caller a constitutional immunity or
avoid a harm that has already taken place.
Second, broadcasting is uniquely accessible to
children, even those too young to read.
Although Cohen's written message might have
been incomprehensible to a first grader,
Pacifica's broadcast could have enlarged a
child's vocabulary in an instant. Other forms
of offensive expression may be withheld from
the young without restricting the expression
at its source. Bookstores and motion picture
theaters, for example, may be prohibited from
making indecent material available to
children. We held in Ginsberg v. New York,
390 U.S. 629, that the government's interest
in the well-being of its youth and in
supporting parents' claim to authority in their
own household justified the regulation of
otherwise protected expression. The ease with
which children may obtain access to broadcast
material, coupled with the concerns
recognized in Ginsberg, amply justify special
treatment of indecent broadcasting.69
Given the foregoing considerations, the
traditional notions of preferring speech and
the press over so many other values of society
do not readily lend itself to this particular
matter. Instead, additional weight should be
accorded on the constitutional directive to
afford a right to reply. If there was no such
mandate, then the submissions of petitioners
may more easily commend themselves for this
Courts acceptance. But as noted above, this
is not the case. Their arguments simplistically
provide minimal importance to that
constitutional command to the point of
marginalizing its importance in the equation.

In fine, when it comes to election and the

exercise of freedom of speech, of expression
and of the press, the latter must be properly
viewed in context as being necessarily made
to accommodate the imperatives of fairness
by giving teeth and substance to the right to
reply requirement.

WHEREFORE, premises considered, the

petitions are PARTIALLY GRANTED, Section
9 (a) of Resolution No. 9615, as amended by
Resolution No. 9631, is
declared UNCONSTITUTIONAL and,
therefore, NULL and VOID. The
constitutionality of the remaining provisions of
Resolution No. 9615, as amended by
Resolution No. 9631, is upheld and remain in
full force and effect.

In view of this Decision, the Temporary

Restraining Order issued by the Court on April
16, 2013 is hereby made PERMANENT.

SO ORDERED.cralawlaw library

Velasco, Jr., Leonardo-De Castro, Bersamin,

Del Castillo, Villarama, Jr., Perez, Reyes,
Bernabe, and Jardeleza,***** JJ., concur.
Sereno, C.J., on official leave.
Carpio, (Acting Chief Justice), see separate
**

concurring opinion.
Brion,*** J., I certify that J. Brion left his vote
concurring in the result. (signed by J. Carpio)
Mendoza,**** J., I certify that J. Mendoza lef
his vote concurring with the ponencia. (signed
by J. Carpio)
Leonen, J., see separate concurring opinion.