G.R. No.

74457 March 20, 1987 Done in the City of Manila, this 25th day of
October, in the year of Our Lord, nineteen
RESTITUTO YNOT, petitioner, hundred and eighty.
vs.
INTERMEDIATE APPELLATE COURT, THE STATION (SGD.) FERDINAND E. MARCOS
COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC President
NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF Republic of the Philippines
ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents.
The petitioner had transported six carabaos in a pump boat
CRUZ, J.: from Masbate to Iloilo on January 13, 1984, when they were
confiscated by the police station commander of Barotac
The essence of due process is distilled in the immortal cry of Nuevo, Iloilo, for violation of the above measure. The
Themistocles to Alcibiades "Strike — but hear me first!" It is petitioner sued for recovery, and the Regional Trial Court of
this cry that the petitioner in effect repeats here as he Iloilo City issued a writ of replevin upon his filing of
challenges the constitutionality of Executive Order No. 626-A. a supersedeas bond of P12,000.00. After considering the
merits of the case, the court sustained the confiscation of the
The said executive order reads in full as follows: carabaos and, since they could no longer be produced,
ordered the confiscation of the bond. The court also declined
to rule on the constitutionality of the executive order, as raise
WHEREAS, the President has given orders
by the petitioner, for lack of authority and also for its
prohibiting the interprovincial movement of
presumed validity. 2
carabaos and the slaughtering of carabaos
not complying with the requirements of
Executive Order No. 626 particularly with The petitioner appealed the decision to the Intermediate
respect to age; Appellate Court,* 3 which upheld the trial court, ** and he
has now come before us in this petition for review
on certiorari.
WHEREAS, it has been observed that
despite such orders the violators still
manage to circumvent the prohibition The thrust of his petition is that the executive order is
against inter-provincial movement of unconstitutional insofar as it authorizes outright confiscation
carabaos by transporting carabeef instead; of the carabao or carabeef being transported across
and 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
WHEREAS, in order to achieve the purposes
guaranteed by due process. He complains that the measure
and objectives of Executive Order No. 626
should not have been presumed, and so sustained, as
and the prohibition against interprovincial
constitutional. There is also a challenge to the improper
movement of carabaos, it is necessary to
exercise of the legislative power by the former President
strengthen the said Executive Order and
under Amendment No. 6 of the 1973 Constitution. 4
provide for the disposition of the carabaos
and carabeef subject of the violation;
While also involving the same executive order, the case
of Pesigan v. Angeles 5 is not applicable here. The question
NOW, THEREFORE, I, FERDINAND E.
raised there was the necessity of the previous publication of
MARCOS, President of the Philippines, by
the measure in the Official Gazette before it could be
virtue of the powers vested in me by the
considered enforceable. We imposed the requirement then
Constitution, do hereby promulgate the
on the basis of due process of law. In doing so, however, this
following:
Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No.
SECTION 1. Executive Order No. 626 is 626-A. That is an entirely different matter.
hereby amended such that henceforth, no
carabao regardless of age, sex, physical
This Court has declared that while lower courts should
condition or purpose and no carabeef shall
observe a becoming modesty in examining constitutional
be transported from one province to
questions, they are nonetheless not prevented from resolving
another. The carabao or carabeef
the same whenever warranted, subject only to review by the
transported in violation of this Executive
highest tribunal. 6 We have jurisdiction under the Constitution
Order as amended shall be subject to
to "review, revise, reverse, modify or affirm on appeal
confiscation and forfeiture by the
or certiorari, as the law or rules of court may provide," final
government, to be distributed to charitable
judgments and orders of lower courts in, among others, all
institutions and other similar institutions as
cases involving the constitutionality of certain
the Chairman of the National Meat 7
measures. This simply means that the resolution of such
Inspection Commission may ay see fit, in
cases may be made in the first instance by these lower courts.
the case of carabeef, and to deserving
farmers through dispersal as the Director of
Animal Industry may see fit, in the case of And while it is true that laws are presumed to be
carabaos. 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
SECTION 2. This Executive Order shall take
them so, then "will be the time to make the hammer fall, and
effect immediately.
heavily," 8 to recall Justice Laurel's trenchant warning. Stated

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otherwise, courts should not follow the path of least arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme
resistance by simply presuming the constitutionality of a law Court, for example, would go no farther than to define due
when it is questioned. On the contrary, they should probe the process — and in so doing sums it all up — as nothing more
issue more deeply, to relieve the abscess, paraphrasing and nothing less than "the embodiment of the sporting Idea
another distinguished jurist, 9 and so heal the wound or excise of fair play." 12
the affliction.
When the barons of England extracted from their sovereign
Judicial power authorizes this; and when the exercise is liege the reluctant promise that that Crown would
demanded, there should be no shirking of the task for fear of thenceforth not proceed against the life liberty or property of
retaliation, or loss of favor, or popular censure, or any other any of its subjects except by the lawful judgment of his peers
similar inhibition unworthy of the bench, especially this or the law of the land, they thereby won for themselves and
Court. their progeny that splendid guaranty of fairness that is now
the hallmark of the free society. The solemn vow that King
The challenged measure is denominated an executive order John made at Runnymede in 1215 has since then resounded
but it is really presidential decree, promulgating a new rule through the ages, as a ringing reminder to all rulers,
instead of merely implementing an existing law. It was issued benevolent or base, that every person, when confronted by
by President Marcos not for the purpose of taking care that the stern visage of the law, is entitled to have his say in a fair
the laws were faithfully executed but in the exercise of his and open hearing of his cause.
legislative authority under Amendment No. 6. It was provided
thereunder that whenever in his judgment there existed a The closed mind has no place in the open society. It is part of
grave emergency or a threat or imminence thereof or the sporting Idea of fair play to hear "the other side" before
whenever the legislature failed or was unable to act an opinion is formed or a decision is made by those who sit in
adequately on any matter that in his judgment required judgment. Obviously, one side is only one-half of the
immediate action, he could, in order to meet the exigency, question; the other half must also be considered if an
issue decrees, orders or letters of instruction that were to impartial verdict is to be reached based on an informed
have the force and effect of law. As there is no showing of appreciation of the issues in contention. It is indispensable
any exigency to justify the exercise of that extraordinary that the two sides complement each other, as unto the bow
power then, the petitioner has reason, indeed, to question the arrow, in leading to the correct ruling after examination
the validity of the executive order. Nevertheless, since the of the problem not from one or the other perspective only
determination of the grounds was supposed to have been but in its totality. A judgment based on less that this full
made by the President "in his judgment, " a phrase that will appraisal, on the pretext that a hearing is unnecessary or
lead to protracted discussion not really necessary at this time, useless, is tainted with the vice of bias or intolerance or
we reserve resolution of this matter until a more appropriate ignorance, or worst of all, in repressive regimes, the insolence
occasion. For the nonce, we confine ourselves to the more of power.
fundamental question of due process.
The minimum requirements of due process are notice and
It is part of the art of constitution-making that the provisions hearing 1which, generally speaking, may not be dispensed
of the charter be cast in precise and unmistakable language with because they are intended as a safeguard against official
to avoid controversies that might arise on their correct arbitrariness. It is a gratifying commentary on our judicial
interpretation. That is the Ideal. In the case of the due system that the jurisprudence of this country is rich with
process clause, however, this rule was deliberately not applications of this guaranty as proof of our fealty to the rule
followed and the wording was purposely kept ambiguous. In of law and the ancient rudiments of fair play. We have
fact, a proposal to delineate it more clearly was submitted in consistently declared that every person, faced by the
the Constitutional Convention of 1934, but it was rejected by awesome power of the State, is entitled to "the law of the
Delegate Jose P. Laurel, Chairman of the Committee on the land," which Daniel Webster described almost two hundred
Bill of Rights, who forcefully argued against it. He was years ago in the famous Dartmouth College Case, 14 as "the
sustained by the body. law which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial." It has to be so
The due process clause was kept intentionally vague so it if the rights of every person are to be secured beyond the
would remain also conveniently resilient. This was felt reach of officials who, out of mistaken zeal or plain
necessary because due process is not, like some provisions of arrogance, would degrade the due process clause into a worn
the fundamental law, an "iron rule" laying down an and empty catchword.
implacable and immutable command for all seasons and all
persons. Flexibility must be the best virtue of the guaranty. This is not to say that notice and hearing are imperative in
The very elasticity of the due process clause was meant to every case for, to be sure, there are a number of admitted
make it adapt easily to every situation, enlarging or exceptions. The conclusive presumption, for example, bars
constricting its protection as the changing times and the admission of contrary evidence as long as such
circumstances may require. presumption is based on human experience or there is a
rational connection between the fact proved and the fact
Aware of this, the courts have also hesitated to adopt their ultimately presumed therefrom. There are instances when
own specific description of due process lest they confine the need for expeditions action will justify omission of these
themselves in a legal straitjacket that will deprive them of the requisites, as in the summary abatement of a nuisance per
elbow room they may need to vary the meaning of the clause se, like a mad dog on the loose, which may be killed on sight
whenever indicated. Instead, they have preferred to leave the because of the immediate danger it poses to the safety and
import of the protection open-ended, as it were, to be lives of the people. Pornographic materials, contaminated
"gradually ascertained by the process of inclusion and meat and narcotic drugs are inherently pernicious and may
exclusion in the course of the decision of cases as they be summarily destroyed. The passport of a person sought for

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a criminal offense may be cancelled without hearing, to generally, as distinguished from those of a
compel his return to the country he has fled. Filthy particular class, require such interference;
restaurants may be summarily padlocked in the interest of and second, that the means are reasonably
the public health and bawdy houses to protect the public necessary for the accomplishment of the
morals. In such instances, previous judicial hearing may be purpose, and not unduly oppressive upon
omitted without violation of due process in view of the individuals. ...
nature of the property involved or the urgency of the need to
protect the general welfare from a clear and present danger. From what has been said, we think it is clear
that the enactment of the provisions of the
The protection of the general welfare is the particular statute under consideration was required
function of the police power which both restraints and is by "the interests of the public generally, as
restrained by due process. The police power is simply defined distinguished from those of a particular
as the power inherent in the State to regulate liberty and class" and that the prohibition of the
property for the promotion of the general welfare. By reason slaughter of carabaos for human
of its function, it extends to all the great public needs and is consumption, so long as these animals are
described as the most pervasive, the least limitable and the fit for agricultural work or draft purposes
most demanding of the three inherent powers of the State, was a "reasonably necessary" limitation on
far outpacing taxation and eminent domain. The individual, as private ownership, to protect the
a member of society, is hemmed in by the police power, community from the loss of the services of
which affects him even before he is born and follows him still such animals by their slaughter by
after he is dead — from the womb to beyond the tomb — in improvident owners, tempted either by
practically everything he does or owns. Its reach is virtually greed of momentary gain, or by a desire to
limitless. It is a ubiquitous and often unwelcome intrusion. enjoy the luxury of animal food, even when
Even so, as long as the activity or the property has some by so doing the productive power of the
relevance to the public welfare, its regulation under the community may be measurably and
police power is not only proper but necessary. And the dangerously affected.
justification is found in the venerable Latin maxims, Salus
populi est suprema lex and Sic utere tuo ut alienum non In the light of the tests mentioned above, we hold with the
laedas, which call for the subordination of individual interests Toribio Case that the carabao, as the poor man's tractor, so to
to the benefit of the greater number. speak, has a direct relevance to the public welfare and so is a
lawful subject of Executive Order No. 626. The method
It is this power that is now invoked by the government to chosen in the basic measure is also reasonably necessary for
justify Executive Order No. 626-A, amending the basic rule in the purpose sought to be achieved and not unduly oppressive
Executive Order No. 626, prohibiting the slaughter of upon individuals, again following the above-cited doctrine.
carabaos except under certain conditions. The original There is no doubt that by banning the slaughter of these
measure was issued for the reason, as expressed in one of its animals except where they are at least seven years old if male
Whereases, that "present conditions demand that the and eleven years old if female upon issuance of the necessary
carabaos and the buffaloes be conserved for the benefit of permit, the executive order will be conserving those still fit
the small farmers who rely on them for energy needs." We for farm work or breeding and preventing their improvident
affirm at the outset the need for such a measure. In the face depletion.
of the worsening energy crisis and the increased dependence
of our farms on these traditional beasts of burden, the But while conceding that the amendatory measure has the
government would have been remiss, indeed, if it had not same lawful subject as the original executive order, we
taken steps to protect and preserve them. cannot say with equal certainty that it complies with the
second requirement, viz., that there be a lawful method. We
A similar prohibition was challenged in United States v. note that to strengthen the original measure, Executive Order
Toribio, where a law regulating the registration, branding and No. 626-A imposes an absolute ban not on the slaughter of
slaughter of large cattle was claimed to be a deprivation of the carabaos but on their movement, providing that "no
property without due process of law. The defendant had carabao regardless of age, sex, physical condition or purpose
been convicted thereunder for having slaughtered his own (sic) and no carabeef shall be transported from one province
carabao without the required permit, and he appealed to the to another." The object of the prohibition escapes us. The
Supreme Court. The conviction was affirmed. The law was reasonable connection between the means employed and the
sustained as a valid police measure to prevent the purpose sought to be achieved by the questioned measure is
indiscriminate killing of carabaos, which were then badly missing
needed by farmers. An epidemic had stricken many of these
animals and the reduction of their number had resulted in an We do not see how the prohibition of the inter-provincial
acute decline in agricultural output, which in turn had caused transport of carabaos can prevent their indiscriminate
an incipient famine. Furthermore, because of the scarcity of slaughter, considering that they can be killed anywhere, with
the animals and the consequent increase in their price, cattle- no less difficulty in one province than in another. Obviously,
rustling had spread alarmingly, necessitating more effective retaining the carabaos in one province will not prevent their
measures for the registration and branding of these animals. slaughter there, any more than moving them to another
The Court held that the questioned statute was a valid province will make it easier to kill them there. As for the
exercise of the police power and declared in part as follows: carabeef, the prohibition is made to apply to it as otherwise,
so says executive order, it could be easily circumvented by
To justify the State in thus interposing its simply killing the animal. Perhaps so. However, if the
authority in behalf of the public, it must movement of the live animals for the purpose of preventing
appear, first, that the interests of the public their slaughter cannot be prohibited, it should follow that

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there is no reason either to prohibit their transfer as, not to the limitations that the said officers must observe when they
be flippant dead meat. make their distribution. There is none. Their options are
apparently boundless. Who shall be the fortunate
Even if a reasonable relation between the means and the end beneficiaries of their generosity and by what criteria shall
were to be assumed, we would still have to reckon with the they be chosen? Only the officers named can supply the
sanction that the measure applies for violation of the answer, they and they alone may choose the grantee as they
prohibition. The penalty is outright confiscation of the see fit, and in their own exclusive discretion. Definitely, there
carabao or carabeef being transported, to be meted out by is here a "roving commission," a wide and sweeping authority
the executive authorities, usually the police only. In the that is not "canalized within banks that keep it from
Toribio Case, the statute was sustained because the penalty overflowing," in short, a clearly profligate and therefore
prescribed was fine and imprisonment, to be imposed by the invalid delegation of legislative powers.
court after trial and conviction of the accused. Under the
challenged measure, significantly, no such trial is prescribed, To sum up then, we find that the challenged measure is an
and the property being transported is immediately invalid exercise of the police power because the method
impounded by the police and declared, by the measure itself, employed to conserve the carabaos is not reasonably
as forfeited to the government. necessary to the purpose of the law and, worse, is unduly
oppressive. Due process is violated because the owner of the
In the instant case, the carabaos were arbitrarily confiscated property confiscated is denied the right to be heard in his
by the police station commander, were returned to the defense and is immediately condemned and punished. The
petitioner only after he had filed a complaint for recovery and conferment on the administrative authorities of the power to
given a supersedeas bond of P12,000.00, which was ordered adjudge the guilt of the supposed offender is a clear
confiscated upon his failure to produce the carabaos when encroachment on judicial functions and militates against the
ordered by the trial court. The executive order defined the doctrine of separation of powers. There is, finally, also an
prohibition, convicted the petitioner and immediately invalid delegation of legislative powers to the officers
imposed punishment, which was carried out forthright. The mentioned therein who are granted unlimited discretion in
measure struck at once and pounced upon the petitioner the distribution of the properties arbitrarily taken. For these
without giving him a chance to be heard, thus denying him reasons, we hereby declare Executive Order No. 626-A
the centuries-old guaranty of elementary fair play. unconstitutional.

It has already been remarked that there are occasions when We agree with the respondent court, however, that the
notice and hearing may be validly dispensed with police station commander who confiscated the petitioner's
notwithstanding the usual requirement for these minimum carabaos is not liable in damages for enforcing the executive
guarantees of due process. It is also conceded that summary order in accordance with its mandate. The law was at that
action may be validly taken in administrative proceedings as time presumptively valid, and it was his obligation, as a
procedural due process is not necessarily judicial only. 20 In member of the police, to enforce it. It would have been
the exceptional cases accepted, however. there is a impertinent of him, being a mere subordinate of the
justification for the omission of the right to a previous President, to declare the executive order unconstitutional
hearing, to wit, the immediacy of the problem sought to be and, on his own responsibility alone, refuse to execute it.
corrected and the urgency of the need to correct it. Even the trial court, in fact, and the Court of Appeals itself did
not feel they had the competence, for all their superior
In the case before us, there was no such pressure of time or authority, to question the order we now annul.
action calling for the petitioner's peremptory treatment. The
properties involved were not even inimical per se as to The Court notes that if the petitioner had not seen fit to
require their instant destruction. There certainly was no assert and protect his rights as he saw them, this case would
reason why the offense prohibited by the executive order never have reached us and the taking of his property under
should not have been proved first in a court of justice, with the challenged measure would have become
the accused being accorded all the rights safeguarded to him a fait accompli despite its invalidity. We commend him for his
under the Constitution. Considering that, as we held spirit. Without the present challenge, the matter would have
in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in ended in that pump boat in Masbate and another violation of
nature, the violation thereof should have been pronounced the Constitution, for all its obviousness, would have been
not by the police only but by a court of justice, which alone perpetrated, allowed without protest, and soon forgotten in
would have had the authority to impose the prescribed the limbo of relinquished rights.
penalty, and only after trial and conviction of the accused.
The strength of democracy lies not in the rights it guarantees
We also mark, on top of all this, the questionable manner of but in the courage of the people to invoke them whenever
the disposition of the confiscated property as prescribed in they are ignored or violated. Rights are but weapons on the
the questioned executive order. It is there authorized that the wall if, like expensive tapestry, all they do is embellish and
seized property shall "be distributed to charitable institutions impress. Rights, as weapons, must be a promise of
and other similar institutions as the Chairman of the National protection. They become truly meaningful, and fulfill the role
Meat Inspection Commission may see fit, in the case of assigned to them in the free society, if they are kept bright
carabeef, and to deserving farmers through dispersal as the and sharp with use by those who are not afraid to assert
Director of Animal Industry may see fit, in the case of them.
carabaos." (Emphasis supplied.) The phrase "may see fit" is an
extremely generous and dangerous condition, if condition it WHEREFORE, Executive Order No. 626-A is hereby declared
is. It is laden with perilous opportunities for partiality and unconstitutional. Except as affirmed above, the decision of
abuse, and even corruption. One searches in vain for the the Court of Appeals is reversed. The supersedeas bond is
usual standard and the reasonable guidelines, or better still,

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cancelled and the amount thereof is ordered restored to the
petitioner. No costs.

SO ORDERED.

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