Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 74457

disposition of the carabaos and carabeef subject of the

violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers vested in me by
the Constitution, do hereby promulgate the following:

March 20, 1987

RESTITUTO YNOT, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, THE STATION
COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC
NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF
ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.
CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to
Alcibiades "Strike but hear me first!" It is this cry that the petitioner in
effect repeats here as he challenges the constitutionality of Executive Order
No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering
of carabaos not complying with the requirements of
Executive Order No. 626 particularly with respect to age;

SECTION 1. Executive Order No. 626 is hereby amended

such that henceforth, no carabao regardless of age, sex,
physical condition or purpose and no carabeef shall be
transported from one province to another. The carabao or
carabeef transported in violation of this Executive Order as
amended shall be subject to confiscation and forfeiture by
the government, to be distributed to charitable institutions
and other similar institutions as the Chairman of the
National Meat Inspection Commission may ay see fit, in the
case of carabeef, and to deserving farmers through dispersal
as the Director of Animal Industry may see fit, in the case of
carabaos.
SECTION 2. This Executive Order shall take effect
immediately.
Done in the City of Manila, this 25th day of October, in the
year of Our Lord, nineteen hundred and eighty.
(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines

WHEREAS, it has been observed that despite such orders the

violators still manage to circumvent the prohibition against
inter-provincial movement of carabaos by transporting
carabeef instead; and
WHEREAS, in order to achieve the purposes and objectives
of Executive Order No. 626 and the prohibition against
interprovincial movement of carabaos, it is necessary to
strengthen the said Executive Order and provide for the

The petitioner had transported six carabaos in a pump boat

from Masbate to Iloilo on January 13, 1984, when they were
confiscated by the police station commander of Barotac
Nuevo, Iloilo, for violation of the above measure. 1 The
petitioner sued for recovery, and the Regional Trial Court of
Iloilo City issued a writ of replevin upon his filing of
a supersedeas bond of P12,000.00. After considering the
merits of the case, the court sustained the confiscation of the

carabaos and, since they could no longer be produced,

ordered the confiscation of the bond. The court also declined
to rule on the constitutionality of the executive order, as raise
by the petitioner, for lack of authority and also for its
presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate
Court,* 3 which upheld the trial court, ** and he has now come before us in
this petition for review on certiorari.
The thrust of his petition is that the executive order is unconstitutional
insofar as it authorizes outright confiscation of the carabao or carabeef being
transported across provincial boundaries. His claim is that the penalty is
invalid because it is imposed without according the owner a right to be heard
before a competent and impartial court as guaranteed by due process. He
complains that the measure should not have been presumed, and so
sustained, as constitutional. There is also a challenge to the improper
exercise of the legislative power by the former President under Amendment
No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v.
Angeles 5 is not applicable here. The question raised there was the necessity
of the previous publication of the measure in the Official Gazette before it
could be considered enforceable. We imposed the requirement then on the
basis of due process of law. In doing so, however, this Court did not, as
contended by the Solicitor General, impliedly affirm the constitutionality of
Executive Order No. 626-A. That is an entirely different matter.
This Court has declared that while lower courts should observe a becoming
modesty in examining constitutional questions, they are nonetheless not
prevented from resolving the same whenever warranted, subject only to
review by the highest tribunal. 6 We have jurisdiction under the Constitution
to "review, revise, reverse, modify or affirm on appeal or certiorari, as the
law or rules of court may provide," final judgments and orders of lower courts
in, among others, all cases involving the constitutionality of certain
measures. 7 This simply means that the resolution of such cases may be made
in the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that
presumption is not by any means conclusive and in fact may be rebutted.
Indeed, if there be a clear showing of their invalidity, and of the need to

declare them so, then "will be the time to make the hammer fall, and
heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise,
courts should not follow the path of least resistance by simply presuming the
constitutionality of a law when it is questioned. On the contrary, they should
probe the issue more deeply, to relieve the abscess, paraphrasing another
distinguished jurist, 9 and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there
should be no shirking of the task for fear of retaliation, or loss of favor, or
popular censure, or any other similar inhibition unworthy of the bench,
especially this Court.
The challenged measure is denominated an executive order but it is really
presidential decree, promulgating a new rule instead of merely implementing
an existing law. It was issued by President Marcos not for the purpose of
taking care that the laws were faithfully executed but in the exercise of his
legislative authority under Amendment No. 6. It was provided thereunder
that whenever in his judgment there existed a grave emergency or a threat or
imminence thereof or whenever the legislature failed or was unable to act
adequately on any matter that in his judgment required immediate action, he
could, in order to meet the exigency, issue decrees, orders or letters of
instruction that were to have the force and effect of law. As there is no
showing of any exigency to justify the exercise of that extraordinary power
then, the petitioner has reason, indeed, to question the validity of the
executive order. Nevertheless, since the determination of the grounds was
supposed to have been made by the President "in his judgment, " a phrase
that will lead to protracted discussion not really necessary at this time, we
reserve resolution of this matter until a more appropriate occasion. For the
nonce, we confine ourselves to the more fundamental question of due
process.
It is part of the art of constitution-making that the provisions of the charter
be cast in precise and unmistakable language to avoid controversies that
might arise on their correct interpretation. That is the Ideal. In the case of the
due process clause, however, this rule was deliberately not followed and the
wording was purposely kept ambiguous. In fact, a proposal to delineate it
more clearly was submitted in the Constitutional Convention of 1934, but it
was rejected by Delegate Jose P. Laurel, Chairman of the Committee on the
Bill of Rights, who forcefully argued against it. He was sustained by the
body. 10

The due process clause was kept intentionally vague so it would remain also
conveniently resilient. This was felt necessary because due process is not, like
some provisions of the fundamental law, an "iron rule" laying down an
implacable and immutable command for all seasons and all persons.
Flexibility must be the best virtue of the guaranty. The very elasticity of the
due process clause was meant to make it adapt easily to every situation,
enlarging or constricting its protection as the changing times and
circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific
description of due process lest they confine themselves in a legal straitjacket
that will deprive them of the elbow room they may need to vary the meaning
of the clause whenever indicated. Instead, they have preferred to leave the
import of the protection open-ended, as it were, to be "gradually ascertained
by the process of inclusion and exclusion in the course of the decision of
cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme
Court, for example, would go no farther than to define due process and in
so doing sums it all up as nothing more and nothing less than "the
embodiment of the sporting Idea of fair play." 12
When the barons of England extracted from their sovereign liege the
reluctant promise that that Crown would thenceforth not proceed against the
life liberty or property of any of its subjects except by the lawful judgment of
his peers or the law of the land, they thereby won for themselves and their
progeny that splendid guaranty of fairness that is now the hallmark of the
free society. The solemn vow that King John made at Runnymede in 1215 has
since then resounded through the ages, as a ringing reminder to all rulers,
benevolent or base, that every person, when confronted by the stern visage of
the law, is entitled to have his say in a fair and open hearing of his cause.
The closed mind has no place in the open society. It is part of the sporting
Idea of fair play to hear "the other side" before an opinion is formed or a
decision is made by those who sit in judgment. Obviously, one side is only
one-half of the question; the other half must also be considered if an
impartial verdict is to be reached based on an informed appreciation of the
issues in contention. It is indispensable that the two sides complement each
other, as unto the bow the arrow, in leading to the correct ruling after
examination of the problem not from one or the other perspective only but in
its totality. A judgment based on less that this full appraisal, on the pretext
that a hearing is unnecessary or useless, is tainted with the vice of bias or

intolerance or ignorance, or worst of all, in repressive regimes, the insolence

of power.
The minimum requirements of due process are notice and hearing 13 which,
generally speaking, may not be dispensed with because they are intended as a
safeguard against official arbitrariness. It is a gratifying commentary on our
judicial system that the jurisprudence of this country is rich with applications
of this guaranty as proof of our fealty to the rule of law and the ancient
rudiments of fair play. We have consistently declared that every person, faced
by the awesome power of the State, is entitled to "the law of the land," which
Daniel Webster described almost two hundred years ago in the famous
Dartmouth College Case, 14 as "the law which hears before it condemns,
which proceeds upon inquiry and renders judgment only after trial." It has to
be so if the rights of every person are to be secured beyond the reach of
officials who, out of mistaken zeal or plain arrogance, would degrade the due
process clause into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to
be sure, there are a number of admitted exceptions. The conclusive
presumption, for example, bars the admission of contrary evidence as long as
such presumption is based on human experience or there is a rational
connection between the fact proved and the fact ultimately presumed
therefrom. 15 There are instances when the need for expeditions action will
justify omission of these requisites, as in the summary abatement of a
nuisance per se, like a mad dog on the loose, which may be killed on sight
because of the immediate danger it poses to the safety and lives of the people.
Pornographic materials, contaminated meat and narcotic drugs are
inherently pernicious and may be summarily destroyed. The passport of a
person sought for a criminal offense may be cancelled without hearing, to
compel his return to the country he has fled. 16Filthy restaurants may be
summarily padlocked in the interest of the public health and bawdy houses to
protect the public morals. 17 In such instances, previous judicial hearing may
be omitted without violation of due process in view of the nature of the
property involved or the urgency of the need to protect the general welfare
from a clear and present danger.
The protection of the general welfare is the particular function of the police
power which both restraints and is restrained by due process. The police
power is simply defined as the power inherent in the State to regulate liberty
and property for the promotion of the general welfare. 18 By reason of its
function, it extends to all the great public needs and is described as the most

pervasive, the least limitable and the most demanding of the three inherent
powers of the State, far outpacing taxation and eminent domain. The
individual, as a member of society, is hemmed in by the police power, which
affects him even before he is born and follows him still after he is dead
from the womb to beyond the tomb in practically everything he does or
owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome
intrusion. Even so, as long as the activity or the property has some relevance
to the public welfare, its regulation under the police power is not only proper
but necessary. And the justification is found in the venerable Latin
maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non
laedas, which call for the subordination of individual interests to the benefit
of the greater number.
It is this power that is now invoked by the government to justify Executive
Order No. 626-A, amending the basic rule in Executive Order No. 626,
prohibiting the slaughter of carabaos except under certain conditions. The
original measure was issued for the reason, as expressed in one of its
Whereases, that "present conditions demand that the carabaos and the
buffaloes be conserved for the benefit of the small farmers who rely on them
for energy needs." We affirm at the outset the need for such a measure. In the
face of the worsening energy crisis and the increased dependence of our
farms on these traditional beasts of burden, the government would have been
remiss, indeed, if it had not taken steps to protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a
law regulating the registration, branding and slaughter of large cattle was
claimed to be a deprivation of property without due process of law. The
defendant had been convicted thereunder for having slaughtered his own
carabao without the required permit, and he appealed to the Supreme Court.
The conviction was affirmed. The law was sustained as a valid police measure
to prevent the indiscriminate killing of carabaos, which were then badly
needed by farmers. An epidemic had stricken many of these animals and the
reduction of their number had resulted in an acute decline in agricultural
output, which in turn had caused an incipient famine. Furthermore, because
of the scarcity of the animals and the consequent increase in their price,
cattle-rustling had spread alarmingly, necessitating more effective measures
for the registration and branding of these animals. The Court held that the
questioned statute was a valid exercise of the police power and declared in
part as follows:

To justify the State in thus interposing its authority in behalf

of the public, it must appear, first, that the interests of the
public generally, as distinguished from those of a particular
class, require such interference; and second, that the means
are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals. ...
From what has been said, we think it is clear that the
enactment of the provisions of the statute under
consideration was required by "the interests of the public
generally, as distinguished from those of a particular class"
and that the prohibition of the slaughter of carabaos for
human consumption, so long as these animals are fit for
agricultural work or draft purposes was a "reasonably
necessary" limitation on private ownership, to protect the
community from the loss of the services of such animals by
their slaughter by improvident owners, tempted either by
greed of momentary gain, or by a desire to enjoy the luxury
of animal food, even when by so doing the productive power
of the community may be measurably and dangerously
affected.
In the light of the tests mentioned above, we hold with the Toribio Case that
the carabao, as the poor man's tractor, so to speak, has a direct relevance to
the public welfare and so is a lawful subject of Executive Order No. 626. The
method chosen in the basic measure is also reasonably necessary for the
purpose sought to be achieved and not unduly oppressive upon individuals,
again following the above-cited doctrine. There is no doubt that by banning
the slaughter of these animals except where they are at least seven years old if
male and eleven years old if female upon issuance of the necessary permit,
the executive order will be conserving those still fit for farm work or breeding
and preventing their improvident depletion.
But while conceding that the amendatory measure has the same lawful
subject as the original executive order, we cannot say with equal certainty
that it complies with the second requirement, viz., that there be a lawful
method. We note that to strengthen the original measure, Executive Order
No. 626-A imposes an absolute ban not on theslaughter of the carabaos but
on their movement, providing that "no carabao regardless of age, sex,
physical condition or purpose (sic) and no carabeef shall be transported from
one province to another." The object of the prohibition escapes us. The

reasonable connection between the means employed and the purpose sought
to be achieved by the questioned measure is missing
We do not see how the prohibition of the inter-provincial transport of
carabaos can prevent their indiscriminate slaughter, considering that they
can be killed anywhere, with no less difficulty in one province than in
another. Obviously, retaining the carabaos in one province will not prevent
their slaughter there, any more than moving them to another province will
make it easier to kill them there. As for the carabeef, the prohibition is made
to apply to it as otherwise, so says executive order, it could be easily
circumvented by simply killing the animal. Perhaps so. However, if the
movement of the live animals for the purpose of preventing their slaughter
cannot be prohibited, it should follow that there is no reason either to
prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were to be
assumed, we would still have to reckon with the sanction that the measure
applies for violation of the prohibition. The penalty is outright confiscation of
the carabao or carabeef being transported, to be meted out by the executive
authorities, usually the police only. In the Toribio Case, the statute was
sustained because the penalty prescribed was fine and imprisonment, to be
imposed by the court after trial and conviction of the accused. Under the
challenged measure, significantly, no such trial is prescribed, and the
property being transported is immediately impounded by the police and
declared, by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the police
station commander, were returned to the petitioner only after he had filed a
complaint for recovery and given a supersedeas bond of P12,000.00, which
was ordered confiscated upon his failure to produce the carabaos when
ordered by the trial court. The executive order defined the prohibition,
convicted the petitioner and immediately imposed punishment, which was
carried out forthright. The measure struck at once and pounced upon the
petitioner without giving him a chance to be heard, thus denying him the
centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice and
hearing may be validly dispensed with notwithstanding the usual
requirement for these minimum guarantees of due process. It is also
conceded that summary action may be validly taken in administrative
proceedings as procedural due process is not necessarily judicial only. 20 In

the exceptional cases accepted, however. there is a justification for the

omission of the right to a previous hearing, to wit, the immediacy of the
problem sought to be corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action calling for
the petitioner's peremptory treatment. The properties involved were not even
inimical per se as to require their instant destruction. There certainly was no
reason why the offense prohibited by the executive order should not have
been proved first in a court of justice, with the accused being accorded all the
rights safeguarded to him under the Constitution. Considering that, as we
held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature,
the violation thereof should have been pronounced not by the police only but
by a court of justice, which alone would have had the authority to impose the
prescribed penalty, and only after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition
of the confiscated property as prescribed in the questioned executive order. It
is there authorized that the seized property shall "be distributed to charitable
institutions and other similar institutions as the Chairman of the National
Meat Inspection Commissionmay see fit, in the case of carabeef, and to
deserving farmers through dispersal as the Director of Animal Industrymay
see fit, in the case of carabaos." (Emphasis supplied.) The phrase "may see
fit" is an extremely generous and dangerous condition, if condition it is. It is
laden with perilous opportunities for partiality and abuse, and even
corruption. One searches in vain for the usual standard and the reasonable
guidelines, or better still, the limitations that the said officers must observe
when they make their distribution. There is none. Their options are
apparently boundless. Who shall be the fortunate beneficiaries of their
generosity and by what criteria shall they be chosen? Only the officers named
can supply the answer, they and they alone may choose the grantee as they
see fit, and in their own exclusive discretion. Definitely, there is here a
"roving commission," a wide and sweeping authority that is not "canalized
within banks that keep it from overflowing," in short, a clearly profligate and
therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of
the police power because the method employed to conserve the carabaos is
not reasonably necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the property
confiscated is denied the right to be heard in his defense and is immediately
condemned and punished. The conferment on the administrative authorities

of the power to adjudge the guilt of the supposed offender is a clear

encroachment on judicial functions and militates against the doctrine of
separation of powers. There is, finally, also an invalid delegation of legislative
powers to the officers mentioned therein who are granted unlimited
discretion in the distribution of the properties arbitrarily taken. For these
reasons, we hereby declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station
commander who confiscated the petitioner's carabaos is not liable in
damages for enforcing the executive order in accordance with its mandate.
The law was at that time presumptively valid, and it was his obligation, as a
member of the police, to enforce it. It would have been impertinent of him,
being a mere subordinate of the President, to declare the executive order
unconstitutional and, on his own responsibility alone, refuse to execute it.
Even the trial court, in fact, and the Court of Appeals itself did not feel they
had the competence, for all their superior authority, to question the order we
now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his
rights as he saw them, this case would never have reached us and the taking
of his property under the challenged measure would have become
afait accompli despite its invalidity. We commend him for his spirit. Without
the present challenge, the matter would have ended in that pump boat in
Masbate and another violation of the Constitution, for all its obviousness,
would have been perpetrated, allowed without protest, and soon forgotten in
the limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the
courage of the people to invoke them whenever they are ignored or violated.
Rights are but weapons on the wall if, like expensive tapestry, all they do is
embellish and impress. Rights, as weapons, must be a promise of protection.
They become truly meaningful, and fulfill the role assigned to them in the
free society, if they are kept bright and sharp with use by those who are not
afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared
unconstitutional. Except as affirmed above, the decision of the Court of
Appeals is reversed. The supersedeas bond is cancelled and the amount
thereof is ordered restored to the petitioner. No costs.
SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco,

Padilla Bidin Sarmiento and Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., are on leave.