RESTITUTO YNOT, PETITIONER, VS. INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO AND THE REGIONAL DIRECTOR, BUREAU OF ANIMA…

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;

“WHEREAS, it has been observed that despite such orders the
violators still manage to circumvent the prohibition against interprovincial
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 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:

“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 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.

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 raised 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 a 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 the 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 expeditious 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 canceled without
hearing, to compel his return to the country he has fled.^[16] Filthy 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 restrains 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.  x x x x x.

“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 the
slaughter 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 interprovincial
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 centuriesfold 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 Commission may 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.” (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
a fait 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., on leave.

^[2] Ibid., pp. 6-7;
Annex B.

^[*] Justices Coquia
Bartolome and Ejercito.

^[3]
Rollo, pp. 6, 27, 33.

^[**] Judge Bethel
Katalbas-Moscardon.

^[4]
Ibid., pp. 10, 11, 14-16, 76.

^[5] 129 SCRA 174.

^[6] Espiritu vs. Fugoso, 81 Phil.
637.

^[7] Sec. 5 [2(a)], Art. X,
1973 Constitution; Sec. 5 [2(a)], Art. VIII, 1987 Constitution.

^[8] J. Laurel, concurring opinion,
Zandueta v. dela Costa, 66 Phil. 615, 627.

^[9] US v. Bustos, 37 Phil.
731.

^[10] I Aruego, The Framing of
the Constitution (1936), pp. 153-159.

^[11] Twinning vs. New Jersey, 211
U.S. 78.

^[12] Frankfurter, Mr.
Justice Holmes and the Supreme Court, pp. 32-33.

^[13] David vs. Aquilizan, 94 SCRA
707; Montemayor vs. Araneta Univ. Foundation, 77 SCRA 321;
Lentelera vs. Amores, 70 SCRA 37; Flores vs. Buencamino, 74
SCRA 332; DBP vs. Bautista, 26 SCRA 366; Ong su Han vs. Gutierrez
David, 76 Phil. 546; Banco-Español-Filipino vs. Palanca, 37 Phil.
921.

^[14] Dartmouth College
vs. Woodward, 4 Wheaton 518.

^[15] Manley v. Georgia, 279 U.S. 1; 1
Cooley 639.

^[16] Suntay vs.
People, 101 Phil. 833.

^[17]
12 C.J. 1224.

^[18] People v.
Vera Reyes, 67 Phil. 190; Ermita-Malate Hotel & Motel Operators
Ass. v. City Mayor, 20 SCRA; Primicias v. Fugoso, 80 Phil. 75;
U.S. v. Ling Su Tan, 10 Phil. 114; Collins v. Wolfe, 5 Phil.
297; U.S. v. Gomez Jesus, 31 Phil. 225; Churchill v. Rafferty,
32 Phil. 603.

^[19] 15 Phil.
85.

^[20] New Filipino Maritime
Agencies, Inc. vs. Rivera, 83 SCRA 602; Gas Corp. of the Phil. vs.
Inciong, 93 SCRA 653.

^[21] Supra.