Admin (1st Cases)

8/10/2019 Admin (1st Cases)

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FIRST DIVISION

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

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

Maximo Calalang in his own behalf.

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

City Fiscal Mabanag for the other respondents.

SYLLABUS1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF COMMONWEALTH ACT No. 648; DELEGATION OF LEGISLATIVE POWER; AUTHORITY OFDIRECTOR OF PUBLIC WORKS AND SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS TO PROMULGATE RULES AND REGULATIONS. Theprovisions of section 1 of Commonwealth Act No. 648 do not confer legislative power upon the Director of Public Works and the Secretary of PublicWorks and Communications. The authority therein conferred upon them and under which they promulgated the rules and regulations nowcomplained of is not to determine what public policy demands but merely to carry out the legislative policy laid down by the National Assembly insaid Act, to wit, "to promote safe transit upon, and avoid obstructions on, roads and streets designated as national roads by acts of the National

Assembly or by executive orders of the President of the Philippines" and to close them temporarily to any or all classes of traffic "whenever thecondition of the road or the traffic thereon makes such action necessary or advisable in the public convenience and interest. " The delegated power

if at all, therefore, is not the determination of what the law shall be, but merely the ascertainment of the facts and circumstances upon which theapplication of said law is to be predicated. To promulgate rules and regulations on the use of national roads and to determine when and how long anational road should be closed to traffic, in view of the condition of the road or the traffic thereon and the requirements of public convenience and

interest, is an administrative function which cannot be directly discharged by the National Assembly. It must depend on the discretion of someother government official to whom is confided the duty of determining whether the proper occasion exists for executing the law. But it cannot besaid that the exercise of such discretion is the making of the law.

2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY; GOVERNMENTAL AUTHORITY. Commonwealth Act No. 548 was passed by the National Assembly

in the exercise of the paramount police power of the state. Said Act, by virtue of which the rules and regulations complained of were promulgated,aims to promote safe transit upon and avoid obstructions on national roads, in the interest and convenience of the public. In enacting said law,therefore, the National Assembly was prompted by considerations of public convenience and welfare. It was inspired by a desire to relievecongestion of traffic, which is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of said law, andthe state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. Persons

and property may be subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state(U.S. v. Gomer Jesus, 31 Phil., 218). To this fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing

without which life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy. Neither shouldauthority 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 meanspeace and order and happiness for all. The moment greater authority is conferred upon the government, logically so much is withdrawn from theresiduum of liberty which resides in the people. The paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of

insuring its preservation.

3. ID.; ID.; SOCIAL JUSTICE. Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of laws andthe equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least beapproximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated toinsure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in theinterrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally,

through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. Socialjustice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the

protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with thefundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest

good to the greatest number."

D E C I S I O N

LAUREL,J.:

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


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It is alleged in the petition that the National Traffic Commission, in its resolution of July 17, 1940, resolved to recommend to the Director of PublicWorks and to the Secretary of Public Works and Communications that animal-drawn vehicles be prohibited from passing along Rosario Street

extending from Plaza Calderon de la Barca to Dasmarias Street, from 7:30 a.m. to 12:30 p.m. and from 1:30 p.m. to 5:30 p.m.; and along RizalAvenue extending from the railroad crossing at Antipolo Street to Echague Street, from 7 a.m. to 11 p.m., from a period of one year from the date

of the opening of the Colgante Bridge to traffic; that the Chairman of the National Traffic Commission, on July 18, 1940 recommended to theDirector of Public Works the adoption of the measure proposed in the resolution aforementioned, in pursuance of the provisions of

Commonwealth Act No. 548 which authorizes said Director of Public Works, with the approval of the Secretary of Public Works andCommunications, to promulgate rules and regulations to regulate and control the use of and traffic on national roads; that on August 2, 1940, theDirector of Public Works, in his first indorsement to the Secretary of Public Works and Communications, recommended to the latter the approval of

the recommendation made by the Chairman of the National Traffic Commission as aforesaid, with the modification that the closing of Rizal Avenueto traffic to animal-drawn vehicles be limited to the portion thereof extending from the railroad crossing at Antipolo Street to Azcarraga Street;

that on August 10, 1940, the Secretary of Public Works and Communications, in his second indorsement addressed to the Director of Public Works,approved the recommendation of the latter that Rosario Street and Rizal Avenue be closed to traffic of animal-drawn vehicles, between the pointsand during the hours as above indicated, for a period of one year from the date of the opening of the Colgante Bridge to traffic; that the Mayor ofManila and the Acting Chief of Police of Manila have enforced and caused to be enforced the rules and regulations thus adopted; that as aconsequence of such enforcement, all animal-drawn vehicles are not allowed to pass and pick up passengers in the places above-mentioned to thedetriment not only of their owners but of the riding public as well.

It is contended by the petitioner that Commonwealth Act No. 548 by which the Director of Public Works, with the approval of the Secretary ofPublic Works and Communications, is authorized to promulgate rules and regulations for the regulation and control of the use of and traffic on

national roads and streets is unconstitutional because it constitutes an undue delegation of legislative power. This contention is untenable. As wasobserved by this court in Rubi v. Provincial Board of Mindoro (39 Phil, 660, 700), "The rule has nowhere been better stated than in the early Ohiocase decided by Judge Ranney, and since followed in a mu ltitude of cases, namely: The true distinction therefore is between the delegation of

power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discret ion as to its execution, tobe exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. (Cincinnati, W. & Z. R. Co. vCommrs. Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief Justice Marshall in Wayman v. Southard (10 Wheat., 1) may be committed bythe Legislature to an executive department or official. The Legislature may make decisions of executive departments or subordinate officialsthereof, to whom it has committed the execution of certain acts, final on questions of fact. (U.S. v. Kinkead, 248 Fed., 141.) The growing tendency

in the decisions is to give prominence to the necessity of the case."cralaw virtua1aw library

Section 1 of Commonwealth Act No. 548 reads as follows:jgc:chanrobles.com.ph

"SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and streets designated as national roads by acts of the National

Assembly or by executive orders of the President of the Philippines, the Director of Public Works, with the approval of the Secretary of PublicWorks and Communications, shall promulgate the necessary rules and regulations to regulate and control the use of and traffic on such roads and

streets. Such rules and regulations, with the approval of the President, may contain provisions controlling or regulating the construction ofbuildings or other structures within a reasonable distance from along the national roads. Such roads may be temporarily closed to any or all classes

of traffic by the Director of Public Works and his duly authorized representatives whenever the condition of the road or the traffic thereon makessuch action necessary or advisable in the public convenience and interest, or for a specified period, with the approval of the Secretary of PublicWorks and Communications."cralaw virtua1aw library

The above provisions of law do not confer legislative power upon the Director of Public Works and the Secretary of Public Works and

Communications. The authority therein conferred upon them and under which they promulgated the rules and regulations now complained of isnot to determine what public policy demands but merely to carry out the legislative policy laid down by the National Assembly in said Act, to wit,"to promote safe transit upon and avoid obstructions on, roads and streets designated as national roads by acts of the National Assembly or byexecutive orders of the President of the Philippines" and to close them temporarily to any or all classes of traffic "whenever the condition of theroad or the traffic makes such action necessary or advisable in the public convenience and interest." The delegated power, if at all, therefore, is not

the determination of what the law shall be, but merely the ascertainment of the facts and circumstances upon which the application of said law isto be predicated. To promulgate rules and regulations on the use of national roads and to determine when and how long a national road should be

closed to traffic, in view of the condition of the road or the traffic thereon and the requirements of public convenience and interest, is anadministrative function which cannot be directly discharged by the National Assembly. It must depend on the discretion of some other government

official to whom is confided the duty of determining whether the proper occasion exists for executing the law. But it cannot be said that theexercise of such discretion is the making of the law. As was said in Lockes Appeal (72 Pa. 491): "To assert that a law is le ss than a law, because it ismade to depend on a future event or act, is to rob the Legislature of the power to act wisely for the public welfare whenever a law is passedrelating to a state of affairs not yet developed, or to things future and impossible to fully know." The proper distinction the court said was this: "TheLegislature cannot delegate its power to make the law; but it can make a law to delegate a power to determine some fact or state of things upon

which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many thingsupon which wise and useful legislation must depend which cannot be known to the law-making power, and, must, therefore, be a subject of inquiryand determination outside of the halls of legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)

In the case of People v. Rosenthal and Osmea, G.R. Nos. 46076 and 46077, promulgated June 12, 1939, and in Pangasinan Transportation v. ThePublic Service Commission, G.R. No. 47065, promulgated June 26, 1940, this Court had occasion to observe that the principle of separation ofpowers has been made to adapt itself to the complexities of modern governments, giving rise to the adoption, within certain limits, of the principleof "subordinate legislation," not only in the United States and England but in practically all modern governments. Accordingly, with the growing


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complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the laws, therigidity of the theory of separation of governmental powers has, to a large extent, been relaxed by permitting the delegation of greater powers bythe legislative and vesting a larger amount of discretion in administrative and executive officials, not only in the execution of the laws, but also in

the promulgation of certain rules and regulations calculated to promote public interest.

The petitioner further contends that the rules and regulations promulgated by the respondents pursuant to the provisions of Commonwealth ActNo. 548 constitute an unlawful interference with legitimate business or trade and abridge the right to personal liberty and freedom of locomotion.

Commonwealth Act No. 548 was passed by the National Assembly in the exercise of the paramount police power of the state.

Said Act, by virtue of which the rules and regulations complained of were promulgated, aims to promote safe transit upon and avoid obstructions

on national roads, in the interest and convenience of the public. In enacting said law, therefore, the National Assembly was prompted byconsiderations of public convenience and welfare. It was inspired by a desire to relieve congestion of traffic. which is, to say the least, a menace to

public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare mayinterfere with personal liberty, with property, and with business and occupations. Persons and property may be subjected to all kinds of restraintsand burdens, in order to secure the general comfort, health, and prosperity of the state (U.S. v. Gomez Jesus, 31 Phil., 218). To this fundamentalaim of our Government the rights of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not bemade to prevail over authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because thenthe individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind through education andpersonal discipline, so that there may be established the resultant equilibrium, which means peace and order and happiness fo r all. The moment

greater authority is conferred upon the government, logically so much is withdrawn from the residuum of liberty which resides in the people. Theparadox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its preservation.

The scope of police power keeps expanding as civilization advances. As was said in the case of Dobbins v. Los Angeles (195 U.S. 223, 238; 49 L. ed.169), "the right to exercise the police power is a continuing one, and a business lawful today may in the future, because of the changed situation,

the growth of population or other causes, become a menace to the public health and welfare, and be required to yield to the public good." And inPeople v. Pomar (46 Phil., 440), it was observed that "advancing civilization is bringing within the police power of the state today things which werenot thought of as being within such power yesterday. The development of civilization, the rapidly increasing population, the growth of publicopinion, with an increasing desire on the part of the masses and of the government to look after and care for the interests of the individuals of thestate, have brought within the police power many questions for regulation which formerly were not so considered."cralaw virtua1aw library

The petitioner finally avers that the rules and regulations complained of infringe upon the constitutional precept regarding the promotion of socialjustice to insure the well-being and economic security of all the people. The promotion of social justice, however, is to be achieved not through amistaken sympathy towards any given group. Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but thehumanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular

conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government ofmeasures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and

social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, orextra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est

suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and

of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with thefundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest

good to the greatest number."cralaw virtua1aw library

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

Avancea, C.J., Imperial, Diaz. and Horrilleno. JJ. concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC


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G.R. No. 101279 August 6, 1992

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

De Guzman, Meneses & Associates for petitioner.

GRIO-AQUINO,J.:

This petition for prohibition with temporary restraining order was filed by the Philippine Association of Service Exporters (PASEI, for short), to

prohibit and enjoin the Secretary of the Department of Labor and Employment (DOLE) and the Administrator of the Philippine OverseasEmployment Administration (or POEA) from enforcing and implementing DOLE Department Order No. 16, Series of 1991 and POEA Memorandum

Circulars Nos. 30 and 37, Series of 1991, temporarily suspending the recruitment by private employment agencies of Filipino domestic helpers forHong Kong and vesting in the DOLE, through the facilities of the POEA, the task of processing and deploying such workers.

PASEI is the largest national organization of private employment and recruitment agencies duly licensed and authorized by the POEA, to engaged in

the business of obtaining overseas employment for Filipino landbased workers, including domestic helpers.

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

Kong-bound workers.

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

In support of this policy, all DOLE Regional Directors and the Bureau of Local Employment's regional offices are likewise directed

to coordinate with the POEA in maintaining a manpower pool of prospective domestic helpers to Hong Kong on a regional basis

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

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

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

Pursuant to Department Order No. 16, series of 1991 and in order to operationalize the temporary government processing anddeployment of domestic helpers (DHs) to Hong Kong resulting from the temporary suspension of recruitment by private

employment agencies for said skill and host market, the following guidelines and mechanisms shall govern the implementation

of said policy.

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

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

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

1. Negotiations with and Accreditation of Hong Kong Recruitment Agencies

2. Manpower Pooling


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3. Worker Training and Briefing

4. Processing and Deployment

5. Welfare Programs

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

Recruitment agencies in Hong Kong intending to hire Filipino DHs for their employers may negotiate with the HWPU in Manila

directly or through the Philippine Labor Attache's Office in Hong Kong.

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X. Interim Arrangement

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

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

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

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

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

Further to Memorandum Circular No. 30, series of 1991 pertaining to the government processing and deployment of domestic

helpers (DHs) to Hong Kong,processing of employment contractswhich have been attested by the Hong Kong Commissioner ofLabor up to 30 June 1991 shall be processed by the POEA Employment Contracts Processing Branch up to 15 August 1991 only.

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

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

processing of DHs shall be allowed.

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

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

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

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

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

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

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


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

Art. 36. Regulatory Power. The Secretary of Labor shall have the power to restrictand regulatethe recruitment andplacement activities of all agencies within the coverage of this title [Regulation of Recruitment and Placement Activities] and ishereby authorized to issue orders and promulgate rules and regulations to carry out the objectives and implement the provisions

of this title. (Emphasis ours.)

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

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

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

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

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

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

2. To regulate and supervise the activities of agents or representatives of shipping companies in the hiringof seamen for overseas employment; and secure the best possible terms of employment for contract

seamen workers and secure compliance therewith. (Art. 20, Labor Code.)

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

It is noteworthy that the assailed circulars do not prohibit the petitioner from engaging in the recruitment and deployment of Filipino landbased

workers for overseas employment. A careful reading of the challenged administrative issuances discloses that the same fall within the"administrative and policing powers expressly or by necessary implication conferred" upon the respondents (People vs. Maceren, 79 SCRA 450).The power to "restrict and regulate conferred by Article 36 of the Labor Code involves a grant of police power (City of Naga vs. Court of Appeals, 24SCRA 898). To "restrict" means "to confine, limit or stop" (p. 62, Rollo) and whereas the power to "regulate" means "the power to protect, foster,promote, preserve, and control with due regard for the interests, first and foremost, of the public, then of the utility and of its patrons" (PhilippineCommunications Satellite Corporation vs. Alcuaz, 180 SCRA 218).

The Solicitor General, in his Comment, aptly observed:

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

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

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


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

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

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

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

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

Art. 5. Rules and Regulations. The Department of Labor and other government agencies charged with the administration andenforcement of this Code or any of its parts shall promulgate the necessary implementing rules and regulations. Such rules and

regulations shall become effective fifteen (15) days after announcement of their adoptionin newspapers of general circulation.(Emphasis supplied, Labor Code, as amended.)

Sec. 3. Filing. (1) Every agency shall file with the University of the Philippines Law Center, three (3) certified copies of everyrule adopted by it. Rules in force on the date of effectivity of this Code which are not filed within three (3) months shall not

thereafter be the basis of any sanction against any party or persons. (Emphasis supplied, Chapter 2, Book VII of theAdministrative Code of 1987.)

Sec. 4. Effectivity. In addition to other rule-making requirements provided by law not inconsistent with this Book, each ruleshall become effective fifteen (15) days from the date of filing as above providedunless a different date is fixed by law, orspecified in the rule in cases of imminent danger to public health, safety and welfare, the existence of which must be expressedin a statement accompanying the rule. The agency shall take appropriate measures to make emergency rules known to persons

who may be affected by them. (Emphasis supplied, Chapter 2, Book VII of the Administrative Code of 1987).

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

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

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

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

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

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

SO ORDERED.

FIRST DIVISION


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[G.R. No. 120095. August 5, 1996]

JMM PROMOTION AND MANAGEMENT, INC., and KARY INTERNATIONAL, INC., petitioner, vs. HON. COURT OF APPEALS, HON. MA. NIEVESCONFESSOR, then Secretary of the Department of the Labor and Employment, HON. JOSE BRILLANTES, in his capacity as actingSecretary of the Department of Labor and Employment and HON. FELICISIMO JOSON, in his capacity as Administrator of the PhilippineOverseas Employment Administration, respondents.

D E C I S I O N

KAPUNAN,J.:

The limits of government regulation under the State's Police Power are once again at the vortex of the instant controversy. Assailed is thegovernment's power to control deployment of female entertainers to Japan by requiring an Artist Record Book (ARB) as a precondition to the

processing by the POEA of any contract for overseas employment. By contending that the right to overseas employment, is a property right withinthe meaning of the Constitution, petitioners vigorously aver that deprivation thereof allegedly through the onerous requirement of an ARB violatesthe due process clause and constitutes an invalid exercise of the police power.

The factual antecedents are undisputed.

Following the much-publicized death of Maricris Sioson in 1991, former President Corazon C. Aquino ordered a total ban against the

deployment of performing artists to Japan and other foreign destinations. The ban was, however, rescinded after leaders of the overseasemployment industry promised to extend full support for a program aimed at removing kinks in the system of deployment. In its place, thegovernment, through the Secretary of Labor and Employment, subsequently issued Department Order No. 28, creating the Entertainment IndustryAdvisory Council (EIAC), which was tasked with issuing guidelines on the training, testing certification and deployment of performing artists abroad.

Pursuant to the EIAC's recommendations,[1]

the Secretary of Labor, on January 6, 1994, issued Department Order No. 3 establishing various

procedures and requirements for screening performing artists under a new system of training, testing, certification and deployment of theformer. Performing artists successfully hurdling the test, training and certification requirement were to be issued an Artist's Record Book (ARB), anecessary prerequisite to processing of any contract of employment by the POEA. Upon request of the industry, implementation of the processoriginally scheduled for April 1, 1994, was moved to October 1, 1994.

Thereafter, the Department of Labor, following the EIAC's recommendation, issued a series of orders fine-tuning and implementing the newsystem. Prominent among these orders were the following issuances:

1. Department Order No. 3-A, providing for additional guidelines on the training, testing, certification and deployment of performing artists.

2. Department Order No. 3-B, pertaining to the Artist Record Book (ARB) requirement, which could be processed only after the artist could showproof of academic and skills training and has passed the required tests.

3. Department Order No. 3-E, providing the minimum salary a performing artist ought to receive (not less than US$600.00 for those bound forJapan) and the authorized deductions therefrom.

4. Department Order No. 3-F, providing for the guidelines on the issuance and use of the ARB by returning performing artists who, unlike newartists, shall only undergo a Special Orientation Program (shorter than the basic program) although they must pass the academic test.

In Civil Case No. 95-72750, the Federation of Entertainment Talent Managers of the Philippines (FETMOP), on January 27, 1995 filed a classsuit assailing these department orders, principally contending that said orders 1) violated the constitutional right to travel; 2) abridged existingcontracts for employment; and 3) deprived individual artists of their licenses without due process of law. FETMOP, likewise, averred that theissuance of the Artist Record Book (ARB) was discriminatory and illegal and "in gross violation of the constitutional right... to life liberty andproperty." Said Federation consequently prayed for the issuance of a writ of preliminary injunction against the aforestated orders.

On February 2, 1992, JMM Promotion and Management, Inc. and Kary International, Inc., herein petitioners, filed a Motion for Intervention insaid civil case, which was granted by the trial court in an Order dated 15 February, 1995.

However, on February 21, 1995, the trial court issued an Order denying petitioners' prayer for a writ of preliminary injunction and dismissedthe complaint.

On appeal from the trial court's Order, respondent court, in CA G.R. SP No. 36713 dismissed the same. Tracing the circumstances which ledto the issuance of the ARB requirement and the assailed Department Order, respondent court concluded that the issuances constituted a validexercise by the state of the police power.

We agree.

The latin maxim salus populi est suprema lexembodies the character of the entire spectrum of public laws aimed at promoting the generawelfare of the people under the State's police power. As an inherent attribute of sovereignty which virtually "extends to all public needs,"

[2]this

"least limitable"[3]

of governmental powers grants a wide panoply of instruments through which the state, asparens patriaegives effect to a host oits regulatory powers.
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Describing the nature and scope of the police power, Justice Malcolm, in the early case of Rubi v. Provincial Board of Mindoro[4]

wrote:

"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 overrulingnecessity.' 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 andwelfare of society.' Carried onward by the current of legislature, the judiciary rarely attempts to dam the onrushing 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 withthe right of the individual."

[5]

Thus, police power concerns government enactments which precisely interfere with personal liberty or property in order to promote thegeneral welfare or the common good. As the assailed Department Order enjoys a presumed validity, it follows that the burden rests upon

petitioners to demonstrate that the said order, particularly, its ARB requirement, does not enhance the public welfare or was exercised arbitrarilyor unreasonably.

A thorough review of the facts and circumstances leading to the issuance of the assailed orders compels us to rule that the Artist Record

Book requirement and the questioned Department Order related to its issuance were issued by the Secretary of Labor pursuant to a valid exerciseof the police power.

In 1984, the Philippines emerged as the largest labor sending country in Asia dwarfing the labor export of countries with mammothpopulations such as India and China. According to the National Statistics Office, this diasporawas augmented annually by over 450,000

documented and clandestine or illegal (undocumented) workers who left the country for various destinations abroad, lured by higher salariesbetter work opportunities and sometimes better living conditions.

Of the hundreds of thousands of workers who left the country for greener pastures in the last few years, women composed slightly close tohalf of those deployed, constituting 47% between 1987-1991, exceeding this proportion (58%) by the end of 1991 ,

[6]the year former Presiden

Aquino instituted the ban on deployment of performing artists to Japan and other countries as a result of the gruesome death of Filipino

entertainer Maricris Sioson.

It was during the same period that this Court took judicial notice not only of the trend, but also of the fact that most of our women, a large

number employed as domestic helpers and entertainers, worked under exploitative conditions "marked by physical and personal abuse. "[7]

Eventhen, we noted that "[t]he sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by

testimonies of returning workers" compelled "urgent government action."[8]

Pursuant to the alarming number of reports that a significant number of Filipina performing artists ended up as prostitutes abroad (many ofwhom were beaten, drugged and forced into prostitution), and following the deaths of a number of these women, the government began

instituting measures aimed at deploying only those individuals who met set standards which would qualify them as legitimate performingartists. In spite of these measures, however, a number of our countrymen have nonetheless fallen victim to unscrupulous recruiters, ending up as

virtual slaves controlled by foreign crime syndicates and forced into jobs other than those indicated in their employment contracts. Worse, someof our women have been forced into prostitution.

Thus, after a number of inadequate and failed accreditation schemes, the Secretary of Labor issued on August 16, 1993, D.O. No. 28,

establishing the Entertainment Industry Advisory Council (EIAC), the policy advisory body of DOLE on entertainment industry matters .[9]

Acting onthe recommendations of the said body, the Secretary of Labor, on January 6, 1994, issued the assailed orders. These orders embodied EIAC'sResolution No. 1, which called for guidelines on screening, testing and accrediting performing overseas Filipino artists. Significantly, as therespondent court noted, petitioners were duly represented in the EIAC,

[10]which gave the recommendations on which the ARB and other

requirements were based.

Clearly, the welfare of Filipino performing artists, particularly the women was paramount in the issuance of Department Order No. 3. Shor

of a total and absolute ban against the deployment of performing artists to "high risk" destinations, a measure which would only drive recruitmentfurther underground, the new scheme at the very least rationalizes the method of screening performing artists by requiring reasonable educationaand artistic skills from them and limits deployment to only those individuals adequately prepared for the unpredictable demands of employment asartists abroad. It cannot be gainsaid that this scheme at least lessens the room for exploitation by unscrupulous individuals and agencies.

Moreover, here or abroad, selection of performing artists is usually accomplished by auditions, where those deemed unfit are usuallyweeded out through a process which is inherently subjective and vulnerable to bias and differences in taste. The ARB requirement goes one stepfurther, however, attempting to minimize the subjectivity of the process by defining the minimum skills required from entertainers and performing

artists. As the Solicitor General observed, this should be easily met by experienced artists possessing merely basic skills. The tests are aimed asegregating real artists or performers from those passing themselves off as such, eager to accept any available job and therefore exposing

themselves to possible exploitation.

As to the other provisions of Department Order No. 3 questioned by petitioners, we see nothing wrong with the requirement for documentand booking confirmation (D.O. 3-C), a minimum salary scale (D.O. 3-E), or the requirement for registration of returning performers. Therequirement for a venue certificate or other documents evidencing the place and nature of work allows the government closer monitoring oforeign employers and helps keep our entertainers away from prostitution fronts and other worksites associated with unsavory, immoral, illegal orexploitative practices. Parenthetically, none of these issuances appear to us, by any stretch of the imagination, even remotely unreasonable orarbitrary. They address a felt need of according greater protection for an oft-exploited segment of our OCW's. They respond to the industry'sdemand for clearer and more practicable rules and guidelines. Many of these provisions were fleshed out following recommendations by, andafter consultations with, the affected sectors and non-government organizations. On the whole, they are aimed at enhancing the safety andsecurity of entertainers and artists bound for Japan and other destinations, without stifling the industry's concerns for expansion and growth.
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In any event, apart from the State's police power, the Constitution itself mandates government to extend the fullest protection to ouroverseas workers. The basic constitutional statement on labor, embodied in Section 18 of Article II of the Constitution provides:

Sec. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

More emphatically, the social justice provision on labor of the 1987 Constitution in its first paragraph states:

The State shall afford full protection to labor, local and overseas, organized and unorganized and promote full employment and equality ofemployment opportunities for all.

Obviously, protection to labor does not indicate promotion of employment alone. Under the welfare and social justice provisions of the

Constitution, the promotion of full employment, while desirable, cannot take a backseat to the government's constitutional duty to providemechanisms for the protection of our workforce, local or overseas. As this Court explained in Philippine Association of Service Exporters(PASEI) vDrilon,

[11]in reference to the recurring problems faced by our overseas workers:

What concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that thecountry has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these

circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, whileaway from home.

We now go to petitioners' assertion that the police power cannot, nevertheless, abridge the right of our performing workers to return towork abroad after having earlier qualified under the old process, because, having previously been accredited, their accreditation became aproperty right," protected by the due process clause. We find this contention untenable.

A profession, trade or calling is a property right within the meaning of our constitutional guarantees. One cannot be deprived of the right to

work and the right to make a living because these rights are property rights, the arbitrary and unwarranted deprivation of which normallyconstitutes an actionable wrong.

[12]

Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or trade has always been upheld as a legitimatesubject of a valid exercise of the police power by the state particularly when their conduct affects either the execution of legitimate governmentafunctions, the preservation of the State, the public health and welfare and public morals. According to the maxim, sic utere tuo ut alienum non

laedas, it must of course be within the legitimate range of legislative action to define the mode and manner in which every one may so use his ownproperty so as not to pose injury to himself or others.

[13]

In any case, where the liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures is certainly muchwider.

[14]To pretend that licensing or accreditation requirements violates the due process clause is to ignore the settled practice, under the mantle

of the police power, of regulating entry to the practice of various trades or professions. Professionals leaving for abroad are required to pass rigid

written and practical exams before they are deemed fit to practice their trade. Seamen are required to take tests determining theirseamanship. Locally, the Professional Regulation Commission has began to require previously licensed doctors and other professionals to f urnish

documentary proof that they had either re-trained or had undertaken continuing education courses as a requirement for renewal of their

licenses. It is not claimed that these requirements pose an unwarranted deprivation of a property right under the due process clause. So long aProfessionals and other workers meet reasonable regulatory standards no such deprivation exists.

Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of the Constitution to support their argument thatthe government cannot enact the assailed regulatory measures because they abridge the freedom to contract. In Philippine Association of ServiceExporters, Inc. vs. Drilon, we held that "[t]he non-impairment clause of the Constitution... must yield to the loftier purposes targeted by thegovernment."

[15]Equally important, into every contract is read provisions of existing law, and always, a reservation of the police power for so long

as the agreement deals with a subject impressed with the public welfare.

A last point. Petitioners suggest that the singling out of entertainers and performing artists under the assailed department orders constitute

class legislation which violates the equal protection clause of the Constitution. We do not agree.

The equal protection clause is directed principally against undue favor and individual or class privilege. It is not intended to prohibit

legislation which is limited to the object to which it is directed or by the territory in which it is to operate. It does not require absolute equality, bumerely that all persons be treated alike under like conditions both as to privileges conferred and liabilities imposed .

[16]We have held, time and

again, that the equal protection clause of the Constitution does not forbid classification for so long as such classification is based on real andsubstantial differences having a reasonable relation to the subject of the particular legislation.

[17]If classification is germane to the purpose of the

law, concerns all members of the class, and applies equally to present and future conditions, the classification does not violate the equal protection

guarantee.

In the case at bar, the challenged Department Order clearly applies to all performing artists and entertainers destined for jobs abroad. These

orders, we stressed hereinbefore, further the Constitutional mandate requiring Government to protect our workforce, particularly those who maybe prone to abuse and exploitation as they are beyond the physical reach of government regulatory agencies. The tragic incidents must somehowstop, but short of absolutely curtailing the right of these performers and entertainers to work abroad, the assailed measures enable our

government to assume a measure of control.

WHEREFORE, finding no reversible error in the decision sought to be reviewed, petition is hereby DENIED.

SO ORDERED.
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11/2911


Manila

EN BANC

G.R. No. L-14535 January 30, 1960

BENITO SYMACO,petitioner-appellee,vs.HON. PATERIO AQUINO, ETC.,respondent-appellant.


12/2912

Javier S. Ranin for appellee.

Assistant Provincial Fiscal Jose P. Santos for appellant.

BARRERA,J.:

Paterio Aquino, Municipal Mayor of Malabon, Rizal, has interposed this appeal from the decision of the Court of First Instance of Rizal (in Civil CaseNo. 4746), commanding him to issue immediately a building permit to petitioner Benito Symaco.

On November 4, 1957, petitioner filed with the abovementioned court a petition praying, inter alia, for a writ ofmandamus to compel respondent

Mayor t issue to him(petitioner) a building permit. To this petition, respondent

1

filed his answer on December 3, 1957. The issues having beenjoined, the parties submitted a "Stipulation of Facts" which, in so far as pertinent, reads as follows:

STIPULATION OF FACTS

x x x x x x x x x

4. That petitioner was on May 22, 1957, and is still up to the present, the registered owner of a certain lt at Calle Gen. Luna, MalabonRizal, said lot more technically designated as "Lot 20 parcel 2 of plan Pse-10928, G.L.R.O. Record No. 9268, situated in the Barrio of Tulay,

Municipality of Malabon, Province of Rizal, under petitioner's Transfer Certificate of Title No. 35160, Rizal Registry of Deeds . . . .

5. That on May 22, 1957, petitioner filed an application for building permit with the Office of the Mayor of Malabon, particularly seekingauthority to repair the eaves and partitions of Petitioner's house of strong materials located at Gen. Luna Street, Malabon, Rizal. . . .

6. That on May 23, 1957, the Municipal Mayor granted or issued a permit to the petitioner herein pursuant to the application filed above-mentioned,. . .

7. That on July 2, 1957. Mr. Carlos R. Mendoza, a duly appointed building inspector of the Municipality of Malabon, and acting under theorders and direction of respondent, wrote a letter to herein petitioner information the letter that he should file the necessary buildingpermit for the contract in of a new building, because as per ocular inspection conducted by the said building inspector, it had been notedand found out that instead of mere repairs of the eaves and partitions of the old building of herein petitioner, as stated in the applicationand the permit thus grated, the old building was demolished and a new one was then being constructed,. . .

x x x x x x x x x

10. That pursuant to the said letters dated July 2, 1957 (Annex 'F') and July 8, 1957 (Annex 'H'), herein petitioner applied or filed a written

application on July 29, 957 with the District Engineer of Rizal for the necessary permit to construct a new building . . .

x x x x x x x x x

12. That acting on petitioner application (Annex 'I'), Mr. Diego An, Chief of Miscellaneous Survey and Investigation, Highway District

Engineer's Office, investigated petitioner's application and, on July 30, 1957, said Mr. An submitted his findings and recomm endation tothe Highway District Engineer,. . . .

13. That on August 1, 1957, the Highway District Engineer endorsed Mr. Diego An's report (Annex `J') to the office of the Mayor ofMalabon, . . . .

14. That on July 1, 1957, there was filed a civil action for forcible entry, with prayer for preliminary, injunction, against herein petitionerby A.M. Raymundo and Company before the Justice of the Peace Court of Malabon, docketed as Civil Case No. 1390, the subject matter

of which covered or concerned a portion of the parcel of land n which the petitioner was constructing his building, and for which thelatter had originally filed or applied for a building permit on May 22, 1957 (Annex "D") and again, upon order by respondent's Office, onJuly 29,1957 (Annex "I'), . . .

x x x x x x x x x

18. That on August 6, 1957, Atty. Alberto de Joya, as cousel of the A.M. Raymundo & Company, sent a letter to respondent asking thelatter to witheld issuance of the building permit to petitioner, . . .

x x x x x x x x x


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21. That on September 23, 1957, respondent wrote a reply to the letters of counsel of herein petitioner (Annexes `N' and `O', advisingtherein that the issuance of the building permit sought was being held in abeyance pending final determination of the ownership of aportion of the lot wherein the building is being constructed; . . .

Thereafter, the case was heared with respect to other matters not covered by said "Stipulation of Facts" and, on July 11, 1958, the court rendered adecision which, in part, states:

It is the opinion of the court that the ground upon which the respondent Mayor refused to give the building permit was without any basisin law, because once the applicant has fulfilled all the requirements necessary before a building permit could be issued, his duty becomesministerial and it is incumbent upon him to issue the same.

The stipulation of facts states that the applicant is the owner of the property in question. The A.M. Raymundo & Company questions theownership f a portion of the land on which the building was being constructed for which the building permit had been applied for bypetitioner. This Court believes that this could not be a ground on the part of the respondent to refuse the issuance of the building permit.It is very reasonable to believe that the petitioner is the owner of the property because he has a torrens title over the same. What willhappen if the Court should finally decide in favor of the petitioner to the effect that he is the exclusive owner of the property in question?The petitioner would suffer damages, knowing as we d that it takes time to finish litigations of this nature. On the other hand, if thepetitioner is allowed to build, no damages against the third-party (A.M. Raymundo & Company) will result, and the only one who willsuffer damages in case of adverse decision will be the petitioner himself who has to remove the building should the Court find that the

land upon which it stands does not belong to him.

x x x x x x x x x

IN VIEW OF THE FOREGOING, let the writ of mandamus issue, directing, ordering and commanding the respondent Mayor t issueimmediately the building permit to the petitioner. The claim for damages is hereby dismissed. No pronouncement as to costs.

The only question too be determined in this appeal is whether the court a quo committed an error in granting the writ of mandamus t herein

petitioner.

Section 3, Rule 67, of the Rules of Court, provides:

SEC. 3. Petition for mandamus.When any tribunal, corporation, board, or person unlawfully neglects the performance of an act which

the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment

of a right or office to which such other is entitled, and there is n other plain, speedy, and adequate remedy in the ordinary course of law ,

the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgmentbe rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to protect the

rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant, with costs.(Emphasis supplied.)

Under this provision of the Rules of Court, to be entitled to a writ of mandamus, petitioner must show (1) that a tribunal, corporation, board, orperson unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or

unlawfully excludes petitioner from the use and enjoyment of a right or office to which he is entitled, and (2) that there is no other plain, speedy,and adequate remedy in the ordinary course of law.

Article I of Ordinance No. 20, series of 1941, of the Municipal Council of Malabon, Rizal, states:

ARTICLE I.Every owner, tenant, manager or contrator, shall, before beginning the construction or repair of any edifice, obtain thenecessary permit from the Municipal Mayor, stating in the application the name of the owner, location of the building, kind of materialsto be used, and the floor area . (Emphasis supplied)

The above-quoted provision of the ordinance requires the applicant for a building permit to state in his application the name of the owner, thelocation of the building, the kind of materials to be used, and the f loor area therefore. Said requirement, it appears, was complied with bypetitioner. Having thus complied with said requirement, was it a discretionary or ministerial duty on the part of respondent to issue the permit inquestion?

A purely ministerial act or duty, in contradistinction to a discretional act, is one which an officer or tribunal performs in a given state of facts, in aprescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment, upon the propriety or

impropriety of the act done. If the law imposes a duty upon a public officer, and gives him the right to decide how or when the duty shall be per-formed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise ofofficial discretion nor judgment. (Lamb vs. Phipps, 22 Phil., 456.

2)


14/2914

We agree with the lower curt that the moment petitioner complied with the requirements under said ordinance for the issuance of a buildingpermit, the petitioner became entitled to it and the respondent's duty became ministerial and it was, thereupon, incumbent upon him to issue thesame. There is nothing in the ordinance which grants respondent the discretion to refuse the issuance of a building permit to an applicant owner,

tenant, manager, or contractor. All that the ordinance requires is that said applicant must state the data mentioned therein. Respondent's failure,therefore, to perform an act which the ordinance enjoins him to do, upon compliance with the conditions therein provided, entitled petitioner to

the writ of mandamus prayed for. (Hoey vs. Baldwin, 1 Phil., 551; Lamb vs. Phipps, 22 Phil., 456; Zobel vs. City of Manila, 47 Phil., 169; CompaniaGral. de Tabacos vs. French, et al., 39 Phil., 34; Ynchausti & Co. vs. Wright, 47 Phil., 866.)

3

Moreover, respondent's refusal to issue a building permit to petitioner was premised on the fact that a portion of petitioner's lot was still thesubject of a forcible entry case fi led by A.M. Raymundo and Co. against petitioner, which is still pending in the Court of First Instance. This, in our

opinion, was not sufficient reason for the denial of the building permit to petitioner. The matter, to say the least, was a purely private affair ordispute between petitioner and said company, which did not, in any way, concern respondent. As the lower court stated, "if the petitioner is

allowed to build, no damages in case of adverse decision will be the petitioner himself who has to remove the decision will be the petitionerhimself who has to remove the building should the court find that the land upon which it stands does not belong to him."

Respondent claim that petitioner was not entitled to the writ of mandamus, because he had other plaint, speedy, and adequate remedy in theordinary course of law, namely, that provided in Section 2188 of the Revised Administration Code, which reads as follows:

SEC. 2188. Supervisory authority of provincial governor over municipal officers .The provincial governor shall receive and investigatecomplaints made under oath against municipal officers for neglect of duty, oppression, corruption, or other form of maladministration ofoffice, and conviction by judgment of any and conviction by final judgment of any crime involving moral turpitude. For minor

delinquency, he may reprimand the offender and if more severe punishments seems to be desirable, he shall submit written chargestouching the matter to the provincial board, furnishing a copy of such charges to the accused either personal or by registered mail, and

he may in such case suspend the off icer (not being the municipal treasurer) pending action by the board, if his opinion the charge be oneaffecting the final integrity of the officer in question. Where suspension is thus effected the written charges against the officer shall befiled with the board within five days.

But the remedy with the above-quoted provision gives is neither plain, speedy, nor adequate. It is primary object, it will be noted, is the removal,suspension, or other disciplinary action of the erring municipal order, rather than to compel the performance of a legal duty.

It has been held that the other remedy that would bar mandamus, must not only be adequate in the general sense of the term, but also specificand appropriate to the circumstances of the particular case. (34 Am. Jur. 838, and cases cited.) It must be the remedy that it will be efficacious toafford relief upon the very subject matter involved, and to enforce the right or performance of the duty in question. (Fremont vs. Crippen, 10 Cal.211, 70 Am. Dec. 711; State ex rel. Pierce vs. Slusher, 117 Or. 498, 244 P. 540, 58 ALR 114)

4It cannot be said to be fully adequate, unless it is

commensurate with the necessities and rights of the complaining party under all the circumstances of the case, reaches the end intended, andactually compels performance of a duty. (Commercial Nat. Bank vs. Robinson, 66 Okla. 235, 168 P. 810, LRA 1918C 410; Eureka P ipe Line Co. vs.Riggs, 75 W. Va. 353, 83 SSE 1020, Ann. Cas. 1918 A 995.) In fine, the remedy which will preclude mandamus must be equally as convenient,

complete, beneficial, and effective as would be mandamus, and be sufficiently speedy to prevent material injury. (34 Am. Jur, 839.).

For all the foregoing, we are of the opinion and so hold, that the court a quo did not err in granting the writ of mandamus in question to petitionerherein.

Wherefore, the decision appealed from is affirmed, with costs. So ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia and Gutierrez David, JJ., concur.


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Manila

EN BANC

G.R. No. L-10520 February 28, 1957

LORENZO M. TAADA and DIOSDADO MACAPAGAL,petitioners,

vs.MARIANO JESUS CUENCO, FRANCISCO A. DELGADO, ALFREDO CRUZ, CATALINA CAYETANO, MANUEL SERAPIO, PLACIDO REYES, and FERNANDOHIPOLITO in his capacity as cashier and disbursing officer,respondents.

Taada, Teehankee and Macapagal for petitioners.

Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr. for respondents.

CONCEPCION,J.:

Petitioner Lorenzo M. Taada is a member of the Senate of the Philippines, and President of the Citizens Party, whereas petitioner DiosdadoMacapagal, a member of the House of Representatives of the Philippines, was one of the official candidates of the Liberal Party for the Senate, at

the General elections held in November, 1955, in which Pacita Madrigal Warns, Lorenzo Sumulong, Quintin Paredes, Francisco Rodrigo, PedroSabido, Claro M. Recto, Domocao Alonto and Decoroso Rosales, were proclaimed elected. Subsequently, the elections of this Senators-elect-who

eventually assumed their respective seats in the Senate-was contested by petitioner Macapagal, together with Camilo Osias, Geronima Pecson,Macario Peralta, Enrique Magalona, Pio Pedrosa and William Chiongbian-who had, also, run for the Senate, in said election-in Senate Electoral CaseNo. 4, now pending before the Senate Electoral Tribunal. .

The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano Primicias, on behalf of the Nacionalista Party, chose SenatorsJose P. Laurel, Fernando Lopez and Cipriano Primicias, as members of the Senate Electoral Tribunal. Upon nomination of petitioner Senator Taada,on behalf of the Citizens Party, said petitioner was next chosen by the Senate as member of said Tribunal. Then, upon nominat ion of SenatorPrimicias on behalf of the Committee on Rules of the Senate, and over the objections of Senators Taada and Sumulong, the Senate chooserespondents Senators Mariano J. Cuenco and Francisco A. Delgado as members of the same Electoral Tribunal. Subsequently, the Chairman of thelatter appointed: (1) Alfredo Cruz and Catalina Cayetano, as technical assistant and private secretary, respectively, to Senator Cuenco, as supposedmember of the Senate Electoral Tribunal, upon his recommendation of said respondent; and (2) Manuel Serapio and Placido Reyes, as technicalassistant and private secretary, respectively to Senator Delgado, as supposed member of said Electoral Tribunal, and upon his recommendation.

Soon, thereafter, Senator Lorenzo M. Taada and Congressman Diosdado Macapagal instituted the case at bar against Senators Cuenco and

Delgado, and said Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, as well as Fernando Hipolito, in his capacity as Cashier andDisbursing Officer of the Senate Electoral Tribunal. Petitioners allege that on February 22, 1956, as well as at present, the Senate consists of 23Senators who belong to the Nacionalista Party, and one (1) Senator-namely, petitioner, Lorenzo M. Taada-belonging to the Citizens Party; that theCommittee on Rules for the Senate, in nominating Senators Cuenco and Delgado, and the Senate, in choosing these respondents, as members ofthe Senate Electoral Tribunal, had "acted absolutely without power or color of authority and in clear violation .. of Article VI, Section 11 of the

Constitution"; that "in assuming membership in the Senate Electoral Tribunal, by taking the corresponding oath of office therefor", saidrespondents had "acted absolutely without color of appointment or authority and are unlawfully, and in violation of the Constitution, usurping,intruding into and exercising the powers of members of the Senate Electoral Tribunal"; that, consequently, the appointments of respondents, Cruz,Cayetano, Serapio and Reyes, as technical assistants and private secretaries to Senators Cuenco and Delgado-who caused said appointments to bemade-as members of the Senate Electoral Tribunal, are unlawful and void; and that Senators Cuenco and Delgado "are threatening and are aboutto take cognizance of Electoral Case No. 4 of the Senate Electoral Tribunal, as alleged members thereof, in nullification of the rights of petitionerLorenzo M. Taada, both as a Senator belonging to the Citizens Party and as representative of the Citizens Party in the Senate Electoral Tribunal,and in deprivation of the constitutional rights of petitioner Diosdado Macapagal and his co-protestants to have their election protest tried anddecided-by an Electoral Tribunal composed of not more than three (3) senators chosen by the Senate upon nomination of the party having the

largest number of votes in the Senate and not more than the (3) Senators upon nomination of the Party having the second largest number of votestherein, together, three (3) Justice of the Supreme Court to be designated by the Chief Justice, instead of by an Electoral Tribunal packed with fivemembers belonging to the Nacionalista Party, which is the rival party of the Liberal Party, to which the Petitioner Diosdado Macapagal and his co-protestants in Electoral Case No. 4 belong, the said five (5) Nacionalista Senators having been nominated and chosen in the manner alleged..hereinabove.".

Petitioners pray that:.

"1. Upon petitioners' filing of bond in such amount as may be determined by this Honorable Court, a writ of preliminary injunction be immediatelyissued directed to respondents Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and P lacido Reyes,restraining them from continuing to usurp, intrude into and/ or hold or exercise the said public offices respectively being occupied by them in the


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Senate Electoral Tribunal, and to respondent Fernando Hipolito restraining him from paying the salaries of respondent Alfredo Cruz, CatalinaCayetano, Manuel Serapio and Placido Reyes, pending this action.

"2. After hearing, judgment be rendered ousting respondent Mariano J. Cuenco Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, ManuelSerapio and Placido Reyes from the aforementioned public offices in the Senate Electoral Tribunal and that they be altogether excluded therefromand making the Preliminary injunction permanent, with costs against the respondents.".

Respondents have admitted the main allegations of fact in the petition, except insofar as it questions the legality, and validity of the election ofrespondents Senators Cuenco and Delgado, as members of the Senate Electoral Tribunal, and of the appointment of respondent Alfredo Cruz,Catalina Cayetano, Manuel Serapio and Placido Reyes as technical assistants and private secretaries to said respondents Senators. Respondents,likewise, allege, by way of special and affirmative defenses, that: (a) this Court is without power, authority of jurisdiction to direct or control theaction of the Senate in choosing the members of the Electoral Tribunal; and (b) that the petition states no cause of action, because "petitioner

Taada has exhausted his right to nominate after he nominated himself and refused to nominate two (2) more Senators", because said petit ioner isin estoppel, and because the present action is not the proper remedy. .

I. Respondents assail our jurisdiction to entertain the petition, upon the ground that the power to choose six (6) Senators as members of theSenate Electoral Tribunal has been expressly conferred by the Constitution upon the Senate, despite the fact that the draft submitted to theconstitutional convention gave to the respective political parties the right to elect their respective representatives in the Electoral Commissionprovided for in the original Constitution of the Philippines, and that the only remedy available to petitioners herein "is not in the judicial forum",

but "to bring the matter to the bar of public opinion.".

We cannot agree with the conclusion drawn by respondents from the foregoing facts. To begin with, unlike the cases of Alejandrino vs. Quezon (46Phil., 83) and Vera vs. Avelino (77 Phil., 192)-relied upon by the respondents this is not an action against the Senate, and it does not seek to compel

the latter, either directly or indirectly, to allow the petitioners to perform their duties as members of said House. Although the Constitutionprovides that the Senate shall choose six (6) Senators to be members of the Senate Electoral Tribunal, the latter is part nei ther of Congress nor ofthe Senate. (Angara vs. Electoral Commission, 63 Phil., 139, Suanes vs. Chief Accountant, 81 Phil., 818; 46 Off. Gaz., 462.).

Secondly, although the Senate has, under the Constitution, the exclusive power to choose the Senators who shall form part of the Senate ElectoralTribunal, the fundamental law has prescribed the manner in which the authority shall be exercised. As the author of a very enlightening study on

judicial self-limitation has aptly put it:.

"The courts are called upon to say, on the one hand, by whom certain powers shall be exercised, and on the other hand, to determine whether thepowers possessed have been validly exercised. In performing the latter function, they do not encroach upon the powers of a coordinate branch ofthe, government, since the determination of the validity of an act is not the same, thing as the performance of the act. In the one case we areseeking to ascertain upon whom devolves the duty of the particular service. In the other case we are merely seeking to determine whether theConstitution has been violated by anything done or attented by either an executive official or the legislative." (Judicial Self-Limitation by Finkelstein

pp. 221, 224, 244, Harvard Law Review, Vol. 39; emphasis supplied,).

The case of Suanes vs. Chief Accountant (supra) cited by respondent refutes their own pretense. This Court exercised its jurisdiction over said caseand decided the same on the merits thereof, despite the fact that it involved an inquiry into the powers of the Senate and its President over theSenate Electoral Tribunal and the personnel thereof. .

Again, under the Constitution, "the legislative power" is vested exclusively in the Congress of the Philippines. Yet, this does not detract from thepower of the courts to pass upon the constitutionality of acts of Congress 1 And, since judicial power includes the authority to inquire into thelegality of statutes enacted by the two Houses of Congress, and approved by the Executive, there can be no reason why the val idity of an act of oneof said Houses, like that of any other branch of the Government, may not be determined in the proper actions. Thus, in the exercise of the so-called"judicial supremacy", this Court declared that a resolution of the defunct National Assembly could not bar the exercise of the powers of the formerElectoral Commission under the original Constitution. 2 (Angara vs. Electoral Commission, supra), and annulled certain acts of the Executive 3 asincompatible with the fundamental law.

In fact, whenever the conflicting claims of the parties to a litigation cannot properly be settled without inquiring into the validity of an act ofCongress or of either House thereof, the courts have, not only jurisdiction to pass upon said issue, but, also, the duty to do so, which cannot beevaded without violating the fundamental law and paving the way to its eventual destruction. 4.

Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs. Francisco (88 Phil., 654), likewise, invoked by respondents, in point. In

the Mabanag case, it was held that the courts could not review the finding of the Senate to the effect that the members thereof who had beensuspended by said House should not be considered in determining whether the votes cast therein, in favor of a resolution proposing an

amendment to the Constitution, sufficed to satisfy the requirements of the latter, such question being a political one. The weight of this decision,as a precedent, has been weakened, however, by our resolutions in Avelino vs. Cuenco (83 Phil., 17), in which this Court proceeded to determinethe number essential to constitute a quorum in the Senate. Besides, the case at bar does not hinge on the number of votes needed for a particularact of said body. The issue before us is whether the Senate-after acknowledging that the Citizens Party is the party, having the second largestnumber of votes in the Senate, to which party the Constitution gives the right to nominate three (3) Senators for the Senate electoral Tribunal-


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could validly choose therefor two (2) Nacionalista Senators, upon nomination by the floor leader of the Nacionalista Party in the Senate, SenatorPrimicias claiming to act on behalf of the Committee on Rules for the Senate.

The issue in the Cabili case was whether we could review a resolution of the Senate reorganizing its representation in the Commission onAppointments. This was decided in the negative, upon the authority of Alejandrino vs. Quezon (supra) and Vera vs. Avelino (supra), the mainpurpose of the petition being "to force upon the Senate the reinstatement of Senator Magalona in the Commission on Appointments," one-half(1/2) of the members of which is to be elected by each House on the basis of proportional representation of the political parties therein. Hence, the

issue depended ma

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