Dir. of Prisons vs. Ang Chiong Kho

7/21/2019 Dir. of Prisons vs. Ang Chiong Kho

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1/20/2015 SUPREME COURT REPORTS ANNOTATED VOLUME 033

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494 SUPREME COURT REPORTS ANNOTATED

Director of Prisons vs. Ang Cho Kio

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.

Courts Recommendatory powers to the President Recom-

495

VOL. 33, JUNE 23, 1970 495


mendatory powers of courts under Section 5 of the Revised PenalCode do not include matters purely political in nature. The

recommendatory powers 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. Said provision

does not empower the court to suggest to the President or to

express an opinion that would reflect on the wisdom or propriety

of the action of the Chief Executive on matters purely political in

nature. It would be to violate the principle of separation of powers

for the judiciary to interfere or attempt to influence the exercise

by the Chief Executive of the political powers of his office.

Same Same Same Deportationof aliens is political question.

Thematter 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. For the

court to suggest to the Chief Executive to modify his decision to

recommit an undesirable alien to prison by allowing him to leave

the country instead is indeed to interfere with the functions of the

Chief Executive.


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Civil actions Judgments Opinions of judges should be

relevant to the question presented for decision.While judges

should be left free to express even their private opinions in

judicial decisions, 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. Judges should refrainfrom expressing irrelevant opinions in their decisions which may

only reflect unfavorably upon their competence and the propriety

of their judicial actuations.

Fernando, J., concurring:

Constitutional law Separation of powers Judiciary should

not play role of adviser to President.Itis not for any occupant of

any court to play the role of adviser to the Executive. 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 The

basic premise, of course, is the decisive weight to be accorded the

fundamental postulate of separation of powers.

Same Same Same Effect on respectability of courts. For

the court to assume the alien role of a presidential adviser, is to

lay open the courts to the charge of presumptuousness. 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 or court decisions.

It would impair the conf idence in its ability ty to live up to its

trust not only on the part of immediate parties to the litigation

but of the general public as well.

496



Makalintal, J., dissenting:

Civil actions Judgments Opinions not prejudicial in nature

and not part of the judgment of court should be allowed. A

recommendation made by the court in its decision to the Chief

Executive which is admittedly not a part of the judgment of the

court, not within the issue presented for its resolution, and one

that is non-prejudicial in nature, should not be deleted from the


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judgment. 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.

APPEAL by certiorari from a decision of the Court of

Appeals.

The facts are stated in the opinion of the Court.

Solicitor General Felix V. Makasiar and SolicitorBernardo P. Pardofor petitioners,

Norberto J. Quisumbingfor respondents.

ZALDIVAR, J.:

An appeal by certiorari, by the Solicitor General in behalf

of the Director of Prisons and the 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

Inhis 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, asshown in the record, are as follows:

_______________

1Decision of a Special Division of five Justices of the Court of Appeals

Villamor, Pres. J., Rodriguez and Caizares, JJ. concurring Nolasco and

Mojica, JJ. concurring and dissenting.

497

VOL. 33, JUNE 23, 1970 497


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
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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 onehalf (6-1./2)

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 KIO @ 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, toSeoul, 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

_______________

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, pp. 1 and 10). (page 22 of the

rollo)

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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 Paraaque.

Rizal. He contacted his two friends in Manila, Lim Pin and

Go Bon Kim. These two friends invited him to stay longerin 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 18,

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:

"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

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3Appellant's Brief in the Court of Appeals, pp. 3-4 (page 21 of the rollo).

499

VOL. 33, JUNE 23, 1970 499



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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 awrit 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 officerin-

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 thepetition 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

500



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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 anddissenting, 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 theprovisions 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


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501

VOL. 33, JUNE 23, 1970 501


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 corpusof 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 have 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


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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

502



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 anundesirable 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 Instance of Rizal, had rightly dismissed

the petition of Ang Cho Kio for habeas cor pus.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 has 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 otherjustices 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
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jurisdiction are limited to those expressly provided in the

_______________

4Page 57 of the rollo.

503

VOL. 33, JUNE 23, 1970 503


lawand 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 interf ere, however

erroneous the f indings may be." When the Chief Executive,


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exercising his powers pursuant to Section 64 (4) 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 circumtances, 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 functionsof the Chief Executive. It

504



would be, as urged by the Solicitor General, an interference

on, or an attempt to influence, the exercise by the ChiefExecutive 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 deci sion. After all,

courts are not concerned with the wisdom or morality of

laws, but only in the interpretation and application of thelaw. 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
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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, there-

_______________

5 Chief Justice Concepcion and Justices Reyes, Dizon, Zaldivar andFernando.

6Justices Makalintal and Castro.

7 Justice Teehankee, as Secretary of Justice, recommended to the

President the recommitment to prison of Ang Cho Kio

505

VOL. 33, JUNE 23, 1970 505


fore, 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.

Concepcion, C.J., Reyes, J.B.L. and Dizon, JJ.,

concur.

Fernando, J.,concurs fully and in addition submits

a brief concurring opinion.

Makalintaland Castro, JJ.,concur and dissent in a

separate opinion.

Teehankee, Barredoand Villamor, JJ.,did not take

part.

Petition denied.

FERNANDO, ., concurring:

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.
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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

_______________

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.

506



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 imperativethat 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
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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 Su-

_______________

1Arula v. Espino, L-28949, June 23, 1969, 28 SCRA 540, 575.

2Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 600, (1932).

507

VOL. 33, JUNE 23, 1970 507


preme 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: "lts jurisdiction and powers and duties being def ined 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

whenthat 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
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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

_______________

3Ibid, p. 605.

4Ibid, p. 606 citing Gordon v. United States, 2 Wall. 561 (1864).

5In re Richardson, 160 NE 655 (1928),

508



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 latterto 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
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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: "lt is too evident for

_______________

62 Dall. 409.

713 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).

509

VOL. 33, JUNE 23, 1970 509


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 thatJustice 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
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17/27



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 judicialoffice 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

_______________

8In re Workmen's Compensation Fund, 119 NE 1027 (1918).

510



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 torepel. It is indefinitely 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


18/27



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 adifferent 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.

_______________

9A Note or Advisory Opinions 37 Hary Law Review 1002, 1008 (1924).

511

VOL. 33, JUNE 26, 1970 511


MAKALINTAL, /.: disserting:

I dissent from the opinion of my brethren insofar as itorders 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. Iwould 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
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objected to.

A N N O T A T I O N

SEPARATION OF POWERS

(The Judiciary as Adviser to the Executive)

The ruling in Director of Prisons and Executive Secretary

vs. Ang Cho Kio and Court of Appeals, L-30001 June 23,1970 reiterates the principle that Court should abstain

from exercising any power that is not strictly judicial in

character and which is not clearly confided to it by the

Constitution.

Nature of the Judicial Power

The judicial power is not defined in the Constitution.

Section 1, Article VIII of the Constitution provides: "The

512


Director of Prisons vs: Ang Cho Kio

judicial power shall be vested in one Supreme Court and in

such inferior courts as may be established by law." Judicial

power is the power to adjudicate, that is, the power to hear,

consider and determine rights of parties and render ajudgment or some sort of a lawfully enforceable decision

thereon (People ex, rel. Riordan vs. Hersey,69 Colo. 492, 14

A.L.R. 631, 196 Pac. Rep. 180 Black, Constitutional Law,

2d. ed., p. 82).

The essence of judicial power is the possession of power

and authority to adjudicate upon the rights and obligations

of the parties who are before the court or tribunal (Ruperto

vs. Torres,G.R. L-8785, (Feb. 25, 1957). Judicial power is

meant the power constitutionally put in possession of our

courts and judges to hold and use in hearing and

determining controversies as to law or fact between the

various government agencies and instrumentalities, or

between individual parties. It has been defined as the

"power of a court to decide and pronounce a judgment and

carry it into effect between persons and parties who bring a

case before it for decision. "Muskrat vs. United States,219

U.S. 346 (1911), Prentice vs. Atlantic Coast Line,211 U.S.

226 (1908). It is the authority with which judges are


20/27



interested to try Civil and Criminal cases and to decide

them or render judgment in accordance 'with law

(Conchada, vs. Director of Prisons,31 Phil. 94 [1915]),

Distinguished from other Powers

The legislative or executive branches of government may

not constitutionally assign to the judiciary any duty but

such are properly judicial, and to be performed in a judicialmanner (Mitskrat vs. United States, supra In the Matter of

the Petition for Admission to the Bar of Unsuccessful

Candidates of1946 to1950, March 18, 1954).

The power conferred in this Court is exclusively judicial,

and it cannot be required or authorized to exercise any

other. 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

513

VOL. 33, JUNE 23, 1970 513


character, and which is not clearly confided to it by the

Constitution (Gordon vs. United States, 117 U.S. 697

[1864]).

Only the executive and possibly 'the legislativedepartments of government have the right and power to

declare that the lands so gained by the action of the sea is

not necessary for public utility or for the cause of

establishment of special industries or for coast guard

services (Natividad vs. Director of Lands, 37 O.G. 2905).

See also Monteverde vs. Director of Lands, G.R. L-4628,

May 25, (1953).

As an incident only of the adjudication of the rights of

the parties to the controversy, the court may pass upon and

make pronouncement relative to their status. Otherwisesuch pronouncement is beyond judicial power (Channie

Tan vs. Republic, G.R. L-14159, April 18, 1960). When

political questions arise in the course of the litigation, the

courts will refuse to take jurisdiction of the action

(Mabanag vs. Lopez Vito,78 Phil. 1) Foster vs. Neilson, 2

Pet. 253 (1829) State of Georgia vs. Stanton, 6 Wall. 50

(1867) Massachusetts vs. Mellon,262 U.S. 447 (1923).

The legislative and executive branches of government


21/27



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 question of

law it has the final say makes it all the more inoperative

than 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 (Arulavs. Espino,G.R. L-28949, June 23,1969, 23 SCRA 540).

Courts are not justified in measuring their opinion with

the opinions of other branches of government upon

questions of wisdom, justice and advisability of an act

Abueva vs. Wood,45 Phil 612 [1924]).

The judicial power may not be used to determine the vis-

514



dom or desirability of a legislative act or policy (U.S. vs.

Ten Yu,24 Phil. 1 [1912]).

Courts may not admit evidence tending to prove the use

of bribery or fraud in securing the passage of a law. A court

is not supposed to act as the guardian of the morals of

legislation (Commissioners of Yancey County vs. RoadCommissioners,81 S.E. 1001). It is not within the province

of the courts to pass judgment upon the policy of legislative

or executive action (Cabili vs. Francisco,G.R. L-4638, May

8, 1951).

Courts may not be Deprived of their Jurisdiction

The law calls for arbitration which represents a method of

the parties own choice. The parties to an arbitration

agreement may not oust the courts of jurisdiction of the

matter submitted to an arbitration. But agreement to

matters in dispute between the parties shall be referred to

arbitrators alone, is contrary to pubic policy and cannot

oust the courts of jurisdiction (Manila Electric Co. vs,

Pasay Transportation,57 Phil. 600 [1932], citing Wahl and

Wahl vs. Donaldson, 2 Phil. 301 [1903]), Puentebella vs.

Negros Coal Co.,51 Phil. 908 (1924) District of Columbia

vs. Bailey,171 U.S. 161 (1897).

The grant of power and duty to the Lands Department


22/27



to dispose of public lands does not divest the courts of their

power' to take cognizance of actions by settlers or

applicants against others to protect their possessions

(Pitargue vs. Sorilla,G.R. L-4302, Sept. 17, 1952).

The Supreme Court as a court is asked to determine if

the members of the court may be constituted as a board of

arbitrators Which is not a court at all. Just as the Supreme

Court, as the guardian of constitutional rights, should notsanction 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 011 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

515

VOL. 33, JUNE 23, 1970 515


not pertaining to or connected with the administration of

judicial functions (Manila Electric Co. vs. Pasay Transp.

Co,. supra.)

The Judiciary as Adviser

Unless the Constitution so provides, it is not within the

lawful power of the other departments of the government

thus to propound questions to the courts and require

answers to them. A statute authorizing either house of the

legislature to do this is unconstitutional, for the reason

that it imposes upon the courts duties which are not

judicial in nature (Black, Constitutional Law,26th ed., p.

103.)

Strictly speaking, the rendering of advisory opinion is

not a judicial function at all. It is the function of theattorney general or law officer. Advisory opinion may be

vested in some jurisdictions to the courts if the constitution

does not prohibit it. But the opinion binds no one, not even

the judges, for it is not rendered between the parties. It is

given to the official requesting it and is often rendered

without hearing an argument. In this respect, it differs

from a declaratory judgment (Borchard, Declaratory

Judgments,p. 52).


23/27



A declaratory judgment is statutory remedy whereby a

person interested under a deed, will, contract or other

written instrument, or whose rights are affected by a

statute or ordinance, may bring an action to determine any

question of construction or validity arising under the

instrument or statute and a declaration of the rights and

duties thereunder (Rule 66, Section 1, Revised Rules of

Court).The issue involved must be ripe for judicial

determination. Before a court can intervene in a petition

for declaratory relief, it must be satisfied that an actual

controversy or the ripening seeds of one exists between the

parties all of whom are sui jurisand before the court and

that the declaration sought will be a practical help in

ending the controversy. By ripening seeds "means a state of

516



facts indicating threatened litigations in the immediate

future, which seems unavoidable concessing the respective

legal rights of the parties (Tolentino vs. Board of

Accountancy,90 Phil. 83 16 Am. Jur. 295).

A request by the President of the United States

soliciting the views of members of the Supreme Court as to

whether their advice to the executive would be available in

the solution of some important issues was declined by the

justices on the ground of the principle of separation of

powers (Correspondence and Public Papers of John Jay,

Vol, 3, p. 486 Charles Warren The Supreme Court in the

United States History[1937], p. 108, cited in Rivera, Law of

Public Administration,p. 412).

The Supreme National Judiciary should not be

associated with the Executive in the revisionary power.The Judges ought never to give their opinion on a law, till

it comes from them (Creation of the Federal Judiciary,

Senate Document No. 91, 75th Congress, cited in Rivera,

op. cit.,p, 412).

In pointing to the evils of advisory opinions, Justice

Frankfurter of the U.S. Supreme Court said that it

deprives constitutional interpretation of the judgment of

the legislature upon facts. It renders legislation sterile, and

deprives the legislature of its creative function and wrests


24/27



from the legislature its responsibility to the people for Its

acts transferring it to the courts (Frankfurter, "A Note on

Advisory Opinions/' 37 Harvard Law Rev.1002)

That neither the legislative nor the executive branches

can constitutionally assign to the judicial branch any

duties but such as are properly judicial, and to be

performed in a judicial manner (Hayburn's Case 2 Dall.

409, 1 L. Ed. 436). See also United States vs. Ferreira,13How. 40, 14 L. Ed. 42.

The power conferred on this Court is exclusively judicial

and it cannot be required or authorized to exercise any

other (Chief Justice Taney in Gordon vs. United States,117

U.S. 697).

517

VOL. 33, JUNE 23, 1970 517


See, however, opinion, contra, favoring judges as advisers

to the Executive in. the revision of laws. It would be useful

to the Judiciary Department by giving it an additional

opportunity of defending itself against legislative

encroachments. lt would be useful to the executive by

inspiring additional confidence and firmness exerting the

revisionary power. It would be useful to the Legislature, by

the valuable assistance it would give in preserving a

consistency, conciseness, perspicuity, and technical

propriety in the laws, qualities peculiarly necessary, and

yet shamefully wanting in our Republican codes. It would

be useful to the community at large, as an additional check

against a pursuit of those unwise and unjust measures,

The aid of the judges will give more wisdom and firmness

to the Executive as they possess a systematic habit and

practice of considering laws in their true principles and in

all their consequences which the Executive cannot beexpected always to possess. (Creation of the Federal

Judiciary, supra)

The Massachussetts Constitution allows 'each branch of

the Legislature, as well as the Governor and Council to

require the opinion of the Justices of the Supreme Judicial

Court upon important questions of law upon solemn

occasions.

The Supreme Court of said State, however, limited the

extent of said authority. Such opinions can be required only


25/27



"upon important questions of law and upon solemn

occasion, the Constitution means some serious and unusual

exigency. It has been held to be such an exigency when the

Governor or either branch of the legislature, with some

action in view, has serious doubts, as to their power and

authority to take such action under the Constitution, or

under existing statutes. The Supreme Court denied the

request f or an opinion upon the meaning of certain wordsin a certain statute. (Answers of the Justices, 148 Mass.

623, cited in Rivera, op. cit.,p. 416),

Advisory opinions at the request of the Governor or

legislature are also authorized in Colorado, Maine, New

518



Hampshire, Rhode Island, Florida, and South Dakota. Such

opinion have been given by courts in some other states, but

are ordinarily declined (Self Insurer's Association vs. State

Industrial Commission,224 N.Y, 13, 119 N.E. 1027 (1918).

See also Opinion of the Justices,209 Ala. 593, 96 So. 487

(1923), cited in Dodd, Cases an Constitutional Law,p. 109.

On the subject of advisory opinions, see Ellingwood,

Departmental Cooperation in State Government.

Courts also give advisory opinions in Canada (Attorney

General for Ontario vs. Attorney General for Dominion of

Canada (1912) A.C. 571. The High Court of Australia

declines to give advisory opinion. See In re the Judiciary

Act,29 C.L.R. 257 (1921).

In the United States vs. Evans,213 U.S. 297, 29 S. Ct.

507, 53 L. Ed. 803 (1909), the court held that it could not

grant a writ of error to review the judgment of a lower

court in a criminal case where there had been a verdict of

not guilty, and there was no power to set aside the verdict,the purpose of the review being "to obtain an opinion upon

exceptions taken at the trial that may serve as a rule of

observance in cases that may hereafter arise."

Philippine Supreme Court not empowered to give Advisory

Opinion to the Executive or Congress

During the 1934 constitutional convention, a proposal was

made to give power to the Supreme Court to hand out

advisory opinions, with the purpose that through such


26/27



procedure, the legislature can be apprised beforehand of

the unconstitutionality of .a bill in question or to advise the

President to veto it, if already enacted by Congress. In

disapproving said proposal, it was agreed that the Court

would be converted into a consultative body of the

President or Congress and could be violative of the

separation of powers. It would also diminish the dignity of

the Court. Both the Legislature and the Executive shouldwork independently of the Judicial Branch and each of

them should be responsible for each own acts. If such power

519

VOL. 33, JUNE 23, 1970 519


is given to the Court, it might occur that in a case in whichthe constitutionality of the law is put in issue before it, the

court would be tied by its opinion (V Lawyers Journal775).

Courts are careful not to declare legislative acts

unconstitutional upon agreed and general statements. It

never was. the thought that, by means of a friendly suit, a

party beaten in the legislature could transfer to the courts

and inquire as to the constitutionality of the legislative act

(Chicago and Grand Trunk Railway Co. vs. Wellman,143

U.S. 339 [1892]).

A New York Court declared a law invalid which

authorized the justice of the Supreme Court upon direction

of the Governor to hear evidence of charges against an

erring officer for purposes of securing his removal.

Speaking for the U.S. Supreme Court, Justice Cardozo

said: "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 finding 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 willnot 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

beginning 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"' (Connolly vs. Scudder, 247 N.Y. 401, 160


27/27


N.E. 655).

In Bacolod Murcia Planters Association vs, Bacolod

Murcia Milling Co,, L-23580, October 31, 1969, 20 SCRA

67, the Philippine Supreme Court ruled that it is not the

court's function to render advisory opinions.

JUDGE JORGE COQUIA.

____________

520

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Dir. of Prisons vs. Ang Chiong Kho