G.R. No. L-30001. June 23, 1970
THE DIRECTOR OF PRISONS AND THE EXECUTIVE SECRETARY, PETITIONERS, VS. ANG CHO KIO @ ANG MING HUY AND THE COURT OF APPEALS, RESPONDENTS.
ZALDIVAR, J.:
An appeal by certiorari, by the Solicitor General in behalf of
the Director of Prisons and the Executive Secretary, from the decision of the
Court of Appeals in CA-G. R. No. 39018-R of said Court, entitled “Ang Cho Kio
(Ang Ming Huy) Petitioner-Appellee versus The Director of Prisons and the Executive
Secretary, Respondents-Appellees.”[1] In his petition the Solicitor General prays
this Court “to render judgment ordering the striking out from said
decision of the portions recommending to the Executive Secretary ‘to allow the
(petitioner) (respondent Ang Cho
Kio @ Ang Ming Huy) to leave this country in the first available
transportation abroad but otherwise affirming the dismissal of the petition for
habeas corpus, with costs in all instances against respondent Ang Cho Kio
@ Ang Ming Huy.”
The pertinent facts for the purposes of this decision, as shown
in the record, are as follows:
Respondent Ang Cho
Kio @ Ang Ming Huy had been charged, tried and convicted of various
offenses committed in the Philippines and was sentenced to suffer penalties,
to wit: a total of forty-five (45) years, ten (10) months and twenty one (21)
days of imprisonment, P6,000 indemnity, and P5,000 moral damages, plus life
imprisonment and P6,000 indemnity.[2] After serving six and one-half (6) years of
his sentence said respondent was granted conditional pardon on July 4, 1959 by the President of the Philippines. The conditional pardon partly reads as
follows:
“By virtue of the authority conferred upon me by the
Constitution, and upon the recommendation of the Board of Pardons and Parole,
the unexecuted portions of the prison terms of prisoner ANG CHO KI0 @ KIWA @
PHILIPP ANG @ ANG TIU CHIO @ KE WA @ LUCIO LEE @ GO ONG @ MR. ANG @ GO ANG @
MR. ONG is hereby remitted on condition that he will voluntarily
leave the Philippines upon his release and never to return to this country. Should the above-named prisoner refuse to
accept said condition, he shall continue serving his sentence and upon the
expiration thereof, he shall be deported from the Philippines
for being an undesirable alien.”
Ang Cho Kio duly accepted the conditions of his pardon and actually
left the Philippines
for Taipeh, Nationalist China, on July 28, 1959.
In the evening of June
26, 1966 Ang Cho
Kio arrived at the Manila
International Airport
on a Philippine Air Lines plane from Taipeh, travelling under the name “Ang
Ming Huy“.
He held a round-trip ticket from Taipeh to Honolulu,to
San Francisco, to Los
Angeles, to Chicago,
to Washington D.C.
to New York, to Vancouver,
to Tokyo, to Seoul,
to Osaka, to Taipeh
to Bangkok, to Saigon,
to Hongkong and back to Taipeh. He was booked on Philippine Air Lines
earliest connecting flight to Honolulu
on June 29, 1966 at 6:30 p.m., or with a stop-over of about 72
hours in Manila. He surrendered his passport to the
immigration authorities at the Manila
International Airport,
and was issued a note that his departure was scheduled for June 29, 1966 at 6:30
p.m. He left his luggage at
the airport and was issued claim tags.
He registered for a three-day stay at the El Presidente
Hotel at Parañaque, Rizal. He contacted his two friends in Manila,
Lim Pin and Go Bon Kim. These two
friends invited him to stay longer in the Philippines. On June
28, 1966 he and his two friends went to the Bureau of Immigration,
where his friend Lim Pin signed a letter addressed to the Commissioner of
Immigration requesting for a fourteen-day extension of stay in the Philippines
for him. Ang Cho Kio was identified by
inspector Mariano Cristi of the Immigration Bureau
as the Ang Cho Kio who was deported to Taipeh on
July 28, 1959. His identity having been established, Ang Cho Kio
was arrested, and the immigration authorities conducted an investigation
regarding his presence in the Philippines. The immigration authorities did not allow him
to proceed with his trip to Honolulu. On July 5, 1966 the Executive Secretary, by
authority of the President, ordered him recommitted to prison to serve the
unexpired portion of the sentence that were imposed on him, for having violated
the condition of his pardon. The
supplemental order of recommitment reads as follows:[3]
“TO THE
DIRECTOR OF PRISONS
MUNTINLUPA, RIZAL
“WHEREAS, ANG CHO KIO @ KIWA & PHILIPP ANG @ ANG TIU CHIO
@ KI WA @ LUCIO DEE @ GO ONG @ MR. ANG @ GO ANG @ MR. ONG was granted
conditional pardon by the President of the Philippines on July 4, 1959, upon
the condition that he will voluntarily leave the Philippines upon his release
and never to return to this country; and
“WHEREAS, said ANG CHO KIO has violated the condition of his
pardon in that on June 26, 1966, he returned to this country from Taipei and
gained entry under an assumed name, ANG MING HUY, failed to leave on the first
available connecting flight to Honolulu, his alleged destination; instead
requested a fourteen day extension of his 72-hour transient stop-over; and had
in December 1965 applied for a temporary visitor’s visa to Manila also under
his assumed name, ANG MING HUY;
“NOW, THEREFORE, by virtue of the authority conferred upon
the President of the Philippines by Section 64(i) of
the Revised Administrative Code, you are hereby ordered to recommit to prison
said ANG CHO KIO @ KIWA @ PHILIPP ANG @ ANG TIU CHIO @ KI WA @ LUCIO DEE @ GO
ONG @ MR. ANG @ GO ANG @ MR. ONG @ ANG MING HUY to serve the unexpired portion
of the sentences for which he was originally committed to prison, and upon
expiration thereof, to deliver said person to the custody of the Commissioner
of Immigration for immediate deportation for being an undesirable alien.
“Manila, July 5, 1966.
By Authority of the President:
(Sgd.) RAFAEL M. SALAS
Executive Secretary
RS/ara“
Ang Cho Kio filed with the Executive Secretary a motion, dated August 29, 1966, for the reconsideration
of the supplemental order of recommitment.
The Executive Secretary failed to act on the motion for reconsideration,
and so on October 5, 1966 Ang Cho
Kio filed a petition for a writ of habeas corpus
with the Court of First Instance of Rizal (Pasay Branch), making as respondents in said petition the
Director of Prisons and the Executive Secretary. Under date of October 10, 1966, the officer-in-charge of the Bureau of
Prisons filed his return. Under date of October 17, 1966, the Solicitor
General filed a return for the Director of Prisons and the Executive Secretary.
After due hearing the Court of First Instance of Rizal, on January
31, 1967, rendered a decision dismissing the petition for habeas
corpus. The Court of First
Instance of Rizal held that Ang
Cho Kio @ Ang Ming Huy was validly
recommitted to prison by the President of the Philippines
in the exercise of his prerogatives pursuant to the provisions of Section 64(i) of the Revised Administrative Code.
Ang Cho Kio appealed to the Court of Appeals from the decision of
the Court of First Instance of Rizal. In the decision of a special division of five
justices, with three justices concurring, and two justices concurring and
dissenting, the Court of Appeals rendered a decision which in effect affirmed
the decision of the Court of First Instance of Rizal
dismissing Ang Cho Kio’s petition for habeas corpus.
We read the following in the majority opinion:
“It having been settled that Section 64(i)
of the Revised Administrative Code is still in force, and that the respondent
Executive Secretary, in the name and by authority of the President, exercised
the power of recommitment herein under the provisions of said Code, and not
under Art. 159 of the Revised Penal Code, it becomes apparent that any
discussion regarding failure to file the corresponding indictment and the
presence or absence of criminal intent, will be off-tangent. On the contrary, the issue, in this
connection, is whether the courts of justice may interfere in the exercise by
the President, thru his Executive Secretary, of his administrative power of
recommitment. Again, it is settled
jurisprudence that the Chief Executive may determine, alone and by himself,
whether the condition attached to a pardon given by him has been violated; and
in the exercise of this prerogative, the courts may not interfere, however
erroneous the findings may be (Espuelas v. The
Provincial Warden, supra; Tesoro v. Director of
Prisons, 68 Phil. 154).”
The aforequoted portion of the majority
opinion affirms the reasons of the Court of First Instance of Rizal in dismissing the petition for habeas corpus. However, the majority opinion contains the
recommendation that Ang Cho
Kio
“…. be sent out at once from this country and that he be
allowed to leave Muntinlupa Prisons under guard only
when he has been booked for outward flight at the Manila International Airport
so as to avoid the possibility of any further violation of his conditional
pardon. At any rate it would be to the
best interest of the security and peace of this country to have the petitioner
expatriated from the Philippines, instead of being recommitted for a long
duration of time to prison where his presence may constitute a constant menace
to our country’s welfare and bring about some sinister influence among the
people with whom he will associate or come in contact.”
Then the dispositive portion of the
majority opinion reads as follows:
“FOR ALL OF THE FOREGOING REASONS, the petition herein filed
is hereby dismissed, with costs against the petitioner, and with a reiteration
of the recommendation to allow the petitioner to leave this country in the
first available transportation abroad made in the course of this decision. Let a copy of this decision be furnished the
Executive Secretary.”
The concurring and dissenting opinion of the two justices opens
with the following statement:
“We concur with the majority opinion insofar as the dismissal
of the petition for writ of habeas corpus of petitioner-appellant
Ang Cho Kio
is concerned, for such dismissal, in effect, is equivalent to an affirmance of the appealed decision. However, we beg to
dissent from that portion of the majority opinion recommending that said
petitioner-appellant be allowed to leave this country by the first available
transportation.”
In due time the Solicitor General filed with the Court of Appeals
a motion for reconsideration, praying for the deletion from the majority
opinion of the recommendation to allow Ang Cho Kio to leave the country on
the first available transportation abroad.
The Court of Appeals, by a vote of three to two in the special division
which decided the case, denied the motion.
Hence this appeal by certiorari by the Solicitor General to this Court.
It is now contended by the Solicitor General that the majority of
the special division of five justices of the Court of Appeals erred in making a
recommendation to allow respondent Ang Cho Kio to leave this country on
the first available transportation abroad.
The Solicitor General maintains that the recommendation is not a part
of the decision binding upon the parties, and is uncalled for; that it gives
the decision a political complexion, because courts are not empowered to make
such a recommendation, nor is it inherent or incidental in the exercise of
judicial powers; that there is no law which gives the court the authority to
recommend to the President the voluntary departure of an undesirable alien who
is lawfully committed to jail; that the deportation of aliens sentenced by the
courts for violation of the laws of the land, and even the act of merely
allowing such convicted aliens to voluntarily leave the country, is an act of
state exercised solely in the discretion of the Chief Executive. It is urged by
the Solicitor General that the act of sending an undesirable alien out of the
country is political in character, and the courts should not interfere with,
nor attempt to influence, the political acts of the Chief Executive.
In a motion dated April
7, 1969, Ang Cho
Kio manifested that he waived his right to file an
answer to any brief filed by the Solicitor General.[4]
We agree with the Solicitor General. The case before the Court of Appeals was for habeas
corpus. The only question to be
resolved by the Court of Appeals was whether, or not, the Court of First
Instate of Rizal, had rightly dismissed the petition
of Ang Cho Kio for habeas corpus. The Court of Appeals was not called upon to
review any sentence imposed upon Ang Cho Kio. The sentence against him had long become
final, and, in fact, he had served part of the sentence when he was extended
pardon on July 4, 1959, upon
the condition that he should leave the country, never to return. The opinion of the three justices of the
special division of the Court of Appeals, to which the two other justices have
concurred, found that the recommitment to prison of Ang
Cho Kio was done in the
exercise by the President of the Philippines of his power pursuant to the
provision of Section 64(i) of the Revised Administrative
Code, and the courts should not interfere with the exercise of that power. The majority opinion should have been limited
to the affirmance of the decision of the lower
court, and no more.
The recommendatory power of the courts in this jurisdiction are
limited to those expressly provided in the law – and such law is the provision
of Section 5 of the Revised Penal Code, as follows:
“Whenever a court has knowledge of any act which it may deem
proper to repress and which is not punishable by law, it shall render the
proper decision, and shall report to the Chief Executive, through the Department
of Justice, the reasons which induce the court to believe that said act should
be made the subject of penal legislation.
“In the same way the court shall submit to the Chief
Executive, through the Department of Justice such statement as may be deemed
proper, without suspending the execution of the sentence, when a strict
enforcement of the provisions of this Code would result in the imposition of a
clearly excessive penalty, taking into consideration the degree of malice and
the injury caused by the offense.”
Certainly, the recommendation in the majority opinion of the
special division of the Court of Appeals, now in question, is not authorized
under the aforequoted provision of Article 5 of the
Revised Penal Code. The Court of Appeals
was not called upon to review any sentence that was imposed on Ang Cho Kio. It was simply called upon to determine
whether Ang Cho Kio was illegally confined, or not, in the insular
penitentiary under the Director of Prisons.
We do not consider it proper that the majority of the justices in the
special division make a recommendation that would suggest a modification or a
correction of the act of the Chief Executive, after the same justices have said
in their opinion “that the Chief Executive may determine, alone and by
himself, whether the condition attached to a pardon given by him had been
violated; and in the exercise of this prerogative, the courts may not
interfere, however erroneous the findings may be.” When the Chief Executive, exercising his
powers pursuant to Section 64(i) of the Revised
Administrative Code, ordered Ang Cho
Kio recommitted to prison, it is assumed that the
Chief Executive had decided that Ang Cho Kio should be dealt with that
way under the circumstances. For the
court to suggest to the Chief Executive to modify his decision to recommit Ang Cho Kio
to prison by allowing him to leave the country instead is indeed to interfere
with the functions of the Chief Executive.
It would be, as urged by the Solicitor General, an interference on, or
an attempt to influence, the exercise by the Chief Executive of the political
powers of his office. The matter of
whether an alien who violated the laws in this country may remain or be
deported is a political question that should be left entirely to the Chief
Executive to decide. Under the
principle of separation of powers, it is not within the province of the
judiciary to express an opinion, or express a suggestion, that would reflect on
the wisdom or propriety of the action of the Chief Executive on matters purely
political in nature.
It may be said that the recommendation embodied in the majority
opinion of the special division of the Court of Appeals simply represents the
private opinion of the three justices, and judges should be left free to express
even their private opinions in judicial decisions. We believe, however, that the better practice
should be that the decision of a court should contain only opinion that is
relevant to the question that is before the court for decision. After all, courts are not concerned with the
wisdom or morality of laws, but only in the interpretation and application of
the law. We believe that judges should
refrain from expressing irrelevant opinions in their decisions which may only
reflect unfavorably upon their competence and the propriety of their judicial
actuations.
However, of the ten members of the Court, as presently
constituted, only five are of the opinion that the recommendation embodied in
the decision of the majority of the special division of the Court of Appeals,
now in question, should be deleted from the decision.[5] Two members of the Court are of a different
opinion[6],
and three others did not take part in the decision because of their official
actuations relative to the case of respondent Ang Cho Kio before it reached this
Court.[7] There is, therefore, one vote less than the
majority of the Court that is necessary to grant the certiorari prayed for.
WHEREFORE, the petition for writ of certiorari is denied,
and the decision of the special division of the Court of Appeals stands. No costs.
IT IS SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., and Dizon, JJ., concur.
Fernando, J., concurs fully and
in addition submits a brief concurring opinion.
Makalintal, J., dissents in a separate opinion.
Castro, J., concurs fully in
the above dissenting opinion of Mr. Justice Makalintal.
Teehankee, Barredo,
and Villamor,
JJ., did not take part.
[1]
Decision of a Special Division of five Justices of the Court of Appeals; Villamor, Pres. J., Rodriguez and Cañizares,
JJ. concurring; Nolasco and Mojica,
JJ. concurring and dissenting.
[2]
He had been prosecuted for murder, frustrated murder, frustrated homicide,
grave coercion with murder, illegal possession of explosives and ammunitions,
grave coercion and illegal possession of firearm. (Brief, Solicitor General in the Court of
Appeals, p. 1 and 10). (page 22 of the rollo)
[3]
Appellant’s Brief in the Court of Appeals, pp. 3-4 (page 21 of the rollo).
[4]
Page 57 of the rollo.
[5]
Chief Justice Concepcion and Justices Reyes, Dizon, Zaldivar and Fernando.
[6]
Justices Makalintal and Castro.
[7] Justice
Teehankee, as Secretary of Justice, recommended to
the President the recommitment to prison of Ang Cho Kio; Justice Barredo, as Solicitor General, appeared for the Executive
Secretary and the Director of Prisons in the Court of Appeals; and Justice Villamor was one of the three justices that rendered the
majority opinion of the special division of the Court of Appeals.
6 pt
6 pt
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3
CONCURRING OPINION
FERNANDO, J.:
The opinion of the Court penned by Justice Zaldivar, both
thorough and meticulous, is, to my mind, equally noteworthy for expressing with
clarity and precision the governing principle that should govern the discharge
of judicial functions. It has my full
concurrence therefore. I would like,
however, to add a few words to the subject in view of the significance attached
to a matter so fundamental in character.
The basic premise, of course, is the decisive weight to be
accorded the fundamental postulate of separation of powers. While the failure of the majority opinion of
the respondent Court of Appeals to yield full obeisance to its implications
insofar as the executive is concerned is brought to light in the opinion of
Justice Zaldivar, I would on my part view it further as an unwarranted
assumption by the judiciary of a role which under the Constitution is denied
it. To be more precise, it is not for
any occupant of any court to play the role of adviser to the Executive.
I entertain serious fears that if the rule were otherwise not
only would there be an infringement of the separation of powers concept but the
delicate and grave duty of the courts to assure compliance with constitutional
mandates and maintain its supremacy as called for by the rule of law would be
gravely endangered. Such a point of
view I once had occasion to manifest in a concurring opinion. Thus: “For to go back to the concept of the rule of law, in the
same way that the legislative and the executive branches are required to act
strictly within the bounds of their competence, the judiciary, including this
Court, is likewise restricted to its proper domain. The fact that on questions of law it has the final say makes it
all the more imperative that in passing upon the question of whether or not it
is called upon to act, it takes the utmost care that in assuring compliance
with constitutional limitations, it does not, at the same time, ignore the
limits of its own authority.”[1]
What was said by Justice Malcolm, speaking for this Court in a
1932 opinion, comes to mind.[2]
Time has not impaired its validity; it has but served to confirm it. Thus: “The Supreme Court of the Philippine
Islands represents one of the three divisions of power in our government. It is
judicial power and judicial power only which is exercised by the Supreme
Court. Just as the Supreme Court, as
the guardian of constitutional rights, should not sanction usurpations by any
other department of the government, so should it as strictly confine its own
sphere of influence to the powers expressly or by implication conferred on it
by the Organic Act. The Supreme Court
and its members should not and cannot be required to exercise any power or to
perform any trust or to assume any duty not pertaining to or connected with the
administering of judicial functions.”[3]
In support of the above view, Justice Malcolm made reference to
the last opinion of Chief Justice Taney of the United States Supreme
Court. This is the excerpt referred to:
“Its jurisdiction and powers and
duties being defined in the organic law of the government, and being all strictly
judicial, Congress cannot require or authorize the court to exercise any other
jurisdiction or power, or perform any other duty. * * * And while it executes firmly all the
judicial powers entrusted to it, the court will carefully abstain from
exercising any power that is not strictly judicial in its character, and which
is not clearly confided to it by the Constitution. * * * “[4]
There is likewise the epochal opinion of Justice Cardozo, as
Chief Judge of the New York Court of Appeals,[5]
when that Court nullified a section of a New York statute that would vest in a
justice of its Supreme Court the power to investigate at the instance of its
governor. His opinion explained why: “He is made the delegate of the Governor
in aid of an executive act, the removal of a public officer. * * * At the word of command he is to give over
the work of judging, and set himself to other work, the work of probing and
advising. His findings when made will
have none of the authority of a judgment. To borrow Bacon’s phrase, they will not ‘give the rule or
sentence.’ They will not be preliminary
or ancillary to any rule or sentence to be pronounced by the judiciary in any
of its branches. They will be mere
advice to the Governor, who may adopt them, or modify them, or reject them
altogether. From the beginnings of our
history, the principle has been enforced that there is no inherent power in
Executive or Legislature to charge the judiciary with administrative functions
except when reasonably incidental to the fulfillment of judicial duties. * *
* The exigencies of government have
made it necessary to relax a merely doctrinaire adherence to a principle so
flexible and practical, so largely a matter of sensible approximation, as that
of the separation of powers. ‘Elasticity has’ not meant that what is of the essence of the judicial
function may be destroyed by turning the power to decide into a pallid
opportunity to consult and recommend * * *. “
Such a principle in American law, Justice Cardozo could trace
back to Hayburn’s Case,[6]
a 1792 decision. He made mention of
another authoritative precedent, this too coming from the pen of Chief Justice
Taney in 1851, in United States v. Ferreira.[7] A provision of the Treaty of 1819 by virtue
of which Florida was ceded by Spain to the United States was to the effect that
it was incumbent on the latter to satisfy claims for injury by Spaniards
whether in the armed forces or civilians due to the operations of the American
army in Florida. In 1823 Congress
passed an act to carry into execution this article of the Treaty. It was therein authorized for the judges of
the superior courts established at St. Augustine and Pensacola, Florida,
respectively, to receive and adjust all claims arising within their respective
jurisdictions, agreeably to the above article of the Treaty. Decisions favorable to claimants were to be
reported by such judges to the Secretary of the Treasury, “who, on being
satisfied that the same is just and equitable, within the provisions of the
Treaty, shall pay the amount thereof to the person or persons in whose favor
the said is adjudged.”
According to Chief Justice Taney: “It is too evident for argument on the subject, that such a
tribunal is not a judicial one, and that the Act of Congress did not intend to
make it one. The authority conferred on
the respective judges was nothing more than that of a commissioner to adjust
certain claims against the United States; and the office of judges, and their
respective jurisdiction, are referred to in the law, merely as a designation of
the persons to whom the authority is confided, and the territorial limits to
which it extends. The decision is not
the judgment of a court of justice. It is the award of a commissioner. The Act of 1834 calls it an award. And an appeal to this court from such a
decision, by such an authority from the judgment of a court of record, would be
an anomaly in the history of jurisprudence.”
Nor was this the first time in the New York bench that Justice
Cardozo, speaking for the Court, made such a pronouncement.[8] In holding not legally allowable the
reference to the New York Court of Appeals by the Industrial Commission of New
York, the question of whether or not it was authorized to require payment into
the state fund of certain unpaid death benefits, the distinguished jurist
declared: “In that situation our
duty is not doubtful. The function of
the courts is to determine controversies between litigants. * * * They do not
give advisory opinions. The giving of
such opinions is not the exercise of the judicial function. * * * It is true
that in England the custom of the Constitution makes the judges of the high
court the assistants of the Lords, and requires them, upon the demand of the
Lords, to give ‘consultative’ opinions. But that custom is a survival of the days when the judges were members
of the great council of the realm. In
the United States no such duty attaches to the judicial office in the absence
of express provision of the Constitution.”
There could be no disputing the accuracy of the observation made
by Justice Cardozo in the Richardson opinion as to the fatal infirmity that
would infect the role of a judge as a counselor of the Executive in these
words: “Centuries of common law
tradition warn us with echoing impressiveness that this is not a judge’s
work.” In that sense we are as one
with the common-law although we cannot trace it that far back. Failure to adhere to it gives rise to a
grave concern.
Moreover, I would assume that those of us entrusted with judicial
responsibility could not be unaware that we may be laying ourselves open to the
charge of presumptuousness. Considering
that the exercise of judicial authority does not embrace the alien role of a
presidential adviser, an indictment of officiousness may be hard to repel. It is infinitely worse if the advice thus
gratuitously offered is ignored or disregarded. The loss of judicial prestige may be incalculable. Thereafter, there may be less than full
respect for court decisions. It would
impair the confidence in its ability to live up to its trust not only on the
part of immediate parties to the litigation but of the general public as
well. Even if the teaching of decided
cases both here and in the Philippines is not as clear therefore, there should
be, to say the least, the utmost reluctance on the part of any court to
arrogate for itself such a prerogative, the exercise of which is fraught with
possibilities of such undesirable character.
When it is borne in mind that no undue attention need be paid to
such advice, which may prove to be ineffectual, even futile, with consequences
far-from-flattering to the judiciary, the language of the then Professor
Frankfurter used with reference to advisory opinions, although set in a
different context, would not be inappropriate. They are “ghosts that slay.”[9] There is no place for them in the law, not
if respect be paid to a coordinate branch, the Executive, and if, to my mind a
more important consideration, there be no deviation from what thus far has
rightly been conceived to be the fitting and proper role of the judiciary.
[1]
Arula v. Espino, L-28949, June 23, 1969, 28 SCRA 540, 575.
[2]
Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 600, (1932).
[3]
Ibid, p. 605.
[4]
Ibid, p. 606 citing Gordon v. United States, 2 Wall. 561 (1864).
[5]
In re Richardson, 160 NE 655 (1928).
[6]
2 Dall. 409.
[7]
13 How. 40. Cf. Gordon v. United States, 117 US 697 (1865); Matter of
Sanborn, 148 US 222 (1893); Interstate Commerce Commission v. Brimson,
154 US 447 (1894); Muskrat v. United States, 219 US 346 (1911); Tutun v.
United States, 270 US 738 (1926); Liberty Warehouse Co. v. Grannis, 273
US 70 (1927).
[8]
In re Workmen’s Compensation Fund, 119 NE 1027 (1918).
[9]
A Note on Advisory Opinions, 37 Harv. Law Review 1002, 1008 (1924).
250
6 pt
6 pt
0
3
DISSENTING OPINION
MAKALINTAL, J.:
I dissent from the opinion of my brethren insofar as it orders
the deletion of the recommendation of three of the five Justices who
constituted the special division of the Court of Appeals which decided this
case that the petitioner Ang Cho Kio be allowed “to leave this country by
the first available transportation.” This recommendation is admittedly
not a part of the judgment of the said Court; it was not within the issue
presented for its resolution; and the fact that it was made at all is a
non-prejudicial matter which does not rise to the category of reversible error. I would not begrudge the three Justices who
made it the liberty to do so, nor consider their act as an undue trespass upon
presidential prerogative. What is
involved is, to me, no more than a question of taste, or punctilious observance
of certain proprieties concerning which well-meaning men may honestly differ;
and I am not prepared to say that there has been such a blatant disregard of
either as to call for the interposition of this Court’s power of review merely
for the purpose of ordering the deletion of the matter objected to.