Equal Protection Of Law.docx

ICHONG VS. HERNANDEZ G.R. No. L-7995 May 31, 1957

Facts of the Case: a) The Government passed R.A. 1180 (Act to Regulate the Retail Business) whose resolution was to prevent persons who are not citizens of the Philippines from having domination upon the people’s economic life. b) The act is a prohibition which is against aliens and any association, corporations, or partnerships of whom are not entirely owned by Filipinos in engaging directly or indirectly in retail trade. c) Any foreigners engaged in the retail business on May 15, 1954 are permitted to continue their business, except if their licenses are forfeited in accordance with law, until voluntary retirement or death. However, for juridical persons, it is ten years after the approval of the Act or until their term expires. d) United States citizens and juridical entities were exempted from this Act. e) Lao H. Ichong, a Chinese businessman, filed an action in behalf of himself and other alien residents, partnerships and corporations, to declare the Act unconstitutional for the following reasons. o The equal protection of the law is denied to these aliens and deprives them of their liberty and property without due process. o the subject of the Act is not expressed in the title o the Act infringes several international and treaty obligations the provisions of the Act against the transmission by aliens of their retail business thru hereditary succession. III – The Legal Issue 1. 2. 3. 4.

Is the Republic Act No. 1180 unconstitutional? Was the law made in the interest of national economic survival and security? Does the law deny the equal protection of the laws and the due process of law? Does the law infringe on several international and treaty obligations?

IV – The Holding 1. No, the RA No. 1180 is not unconstitutional. The mere fact of alienage is the root and cause of the distinction between the alien and the national as a trader. 2. The law was made for the interest of our state. 3. The RA does not violate the equal protection clause nor the due process of the law. 4. No, the law does not infringe on any of the international treaties or otherwise. V – Legal Rationale 1. There is no evidence that the law has flouted any constitutional mandate. It pointed out that the Constitution does not impose a policy of Filipino monopoly. The purpose of the law is simply to prohibit foreign powers or interests from steering our economic policies and ensure that Filipinos are given preference in all areas of development. The wisdom and efficacy of the law to carry out its objectives appear to be plainly unmistakable — as a matter of fact it seems not only appropriate but actually necessary — and that in any case such matter falls within the right of the Legislature Department. 2. According to the Court, the disputed law was ratified to remedy a real actual threat and danger to the Philippine economy posed by foreign dominance and control of the retail

business. The enactment undoubtedly falls within the scope of the police power of the State, wherein the State protects its own interests and insures its security and future. 3. The law does not violate the equal protection clause of the Constitution because sufficient grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, or even the due process of law clause, because the law is forthcoming in process and recognizes the privilege of foreigners already engaged in the trade and reasonably protects their privilege. The provisions of the law are clearly embraced in the title, and this suffers from no fraudulence and has not misled the legislators or the segment of the population affected. 4. Lastly, it cannot be said to be void for supposed conflict with treaty obligations because no treaty has actually been entered into on the subject and the police power may not be curtailed or surrendered by any treaty or any other conventional agreement. Henceforth, the petition was denied, with charges against petitioner, Mr. Lao Ichong.

PEOPLE VS. VERA G.R. No. 45685, 65 Phil 56, November 16, 1937 Facts:

1. Private respondent (Cu-Unjieng) was convicted of a criminal charge by trial court of Manila. 2. He filed several motions for reconsideration or new trial but was denied. On 1936, the SC remanded the case to the original court of origin for the execution of judgment. 3. While waiting for the new trial, he appealed to Insular Probation Office (IPO) for probation but was denied. 4. However, Judge Vera, upon another request by petitioner, allowed the petition to be set for hearing for probation. 5. Petitioners then filed a case to Judge Vera for the latter has no power to place the petitioner under probation because it is in violation of Sec. 11 of the Act 4221 (i.e., the grant to the provincial boards the power to provide a system of probation to convicted person.) Petitioner’s contentions:

1. Judge Vera has no power to place the petitioner under probation because it is in violation of Sec. 11 of the Act 4221 because nowhere it states that it is to be made applicable to chartered cities like the City of Manila. 2. Assuming if includes cities, it violates equal protection clause for being an invalid classification because its applicability is not uniform throughout the country for each provincial board has its own discretion to provide or not to provide a probation system, allocate funds for the probation officers based on the discretion of each provincial boards as regards their own locality, etc.

Issue: WON the assailed provision is unconstitutional for being violative of the equal protection clause. Held:  

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YES, the assailed provision is unconstitutional for being violative of the equal protection clause. Class legislation discriminating against some and favoring others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is permitted. The classification, however, to be reasonable must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative power. Each provincial board has its own discretion to provide or not to provide a probation system, allocate funds for the probation officers based on the discretion of each provincial boards as regards their own locality, etc. What if the other province decides not to adopt probation system, or it decides not to have salary for the probation officer? it is clear that in section 11 of the Probation Act creates a situation in which discrimination and inequality are permitted or allowed. Section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that account bad.

P E O P LE V. C A Y A T G.R. No. L-45987, 68 Phil 12, May 5, 1939 DOCTRINE: Protection of laws is not violated by a legislation based on reasonable classification. The classification to be reasonable, (1) must rest on substantial distinctions; (2) must be germane to the purposes of the law; (3) must not be limited to existing conditions only; (4) must apply equally to all members of the same class.

FACTS: 1. Respondent Cayat, native of Baguio, Benguet and a member of the non-Christian tribe was found guilty of violating sections 2 and 3 of Act No. 1639 for possessing an intoxicating liquor (one bottle of gin) which is not a native wine. 2. Section 2 of the said act prohibits any native of the Philippines who is a member of the nonChristian tribe to buy, receive and possess any intoxicating liquor other than their so-called native wines. Consequently, Section 3 thereof provides for its punishment. 3. Cayat challenges the constitutionality of Act No. 1639 on the grounds that it is discriminatory and denies the equal protection of the laws, violative of the due process and it is an improper exercise of police power. ISSUES: 1. Whether the Act No. 1639 violates the equal protection clause?

RULING:  

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No, the Act No. 1639 is not violative of the equal protection clause. Equal protection of the laws is not violated by a legislation based on reasonable classifications. The classification to be reasonable, (1) must rest on substantial distinctions; (2) must be germane to the purposes of the law; (3) must not be limited to existing conditions only; (4) must apply equally to all members of the same class. Act No. 1639 satisfies these requirements. On the first requisite, the classification rests on real and substantial distinctions. The non-Christian tribes refer not to the religious belief, but in a way to the geographical and more directly to the natives of the Philippines of a low grade of civilization. Second, Act No. 1639 was designed to insure peace and order among the nonChristian tribes. The experience of the past and the lower court observed that the use of highly intoxicating liquors by the non-Christian tribes often resulted in lawlessness and crimes, which hamper the efforts of the Government to raise their standard of life and civilization. Third, the said act is intended to apply for all times as long as the conditions exist. Legislature understood that civilization of a people is a slow process and that hand in hand with it must go measures of protection and security. Fourth, the act applies equally to all members of same class.

American Tobacco v. Camacho (2008) G.R. No. 163583 August 20, 2008 YNARES-SANTIAGO, J. Lessons Applicable: Court of Tax Appeals Jurisdiction, Regional Trial Court Jurisdiction, Equal Protection and Uniformity of Taxation (constitutional issue), BIR Power to Conduct Resurvey and Reclassification (delegated by express legislation)

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June 2001, petitioner British American Tobacco introduced and sold Lucky Strike, Lucky Strike Lights and Lucky Strike Menthol Lights cigarettes w/ SRP P 9.90/pack - Initial assessed excise tax: P 8.96/pack (Sec. 145 [c]) February 17, 2003: RR 9-2003: Periodic review every 2 years or earlier of the current net retail price of new brands and variants thereof for the purpose of the establishing and updating their tax classification March 11, 2003: RMO 6-2003: Guidelines and procedures in establishing current net retail prices of new brands of cigarettes and alcohol products August 8, 2003: RR 22-2003: Implement the revised tax classification of certain new brands introduced in the market after January 1, 1997 based on the survey of their current net retail prices. This increased the excise tax to P13.44 since the average net retail price is above P 10/pack. This cause petitioner to file before the RTC of Makati a petition for injunction with prayer for issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction sought to enjoin the implementation of Sec. 145 of the NIRC, RR No. 1-97, 9-2003, 22-2003 and 6-2003 on the ground that they discriminate against new brands of cigarettes in violation of the equal protection and uniformity provisions of the Constitution RTC: Dismissed While petitioner's appeal was pending, RA 9334 amending Sec. 145 of the 1997 NIRC among other took effect on January 1, 2005 which in effect increased petitioners excise tax to P25/pack Petitioner filed a Motion to Admit attached supplement and a supplement to the petition for review assailing the constitutionality of RA 9334 and praying a downward classification of Lucky Strike products at the bracket taxable at P 8.96/pack since existing brands are still taxed based on their price as of October 1996 eventhough they are equal or higher than petitioner's product price. Philip Morris Philippines Manufacturing Incorporated, Fortune Tobacco Corp., Mighty Corp. and JT International Intervened. Fortune Tobacco claimed that the CTA should have the exclusive appellate jurisdiction over the decision of the BIR in tax disputes

ISSUE: 1. W/N the RTC rather than the CTA has jurisdiction. 2. W/N RA 9334 of the classification freeze provision is unconstitutional for violating the equal protection and uniformity provisions of the Constitution 3. W/N RR Nos. 1-97, 9-2003, 22-2003 and RA 8243 even prior to its amendment by RA 9334 can authorize the BIR to conduct resurvey and reclassification. HELD: 1. Yes. The jurisdiction of the CTA id defined in RA 1125 which confers on the CTA jurisdiction to resolve tax disputes in general. BUT does NOT include cases where the constitutionality of a law or rule is challenged which is a judicial power belonging to regular courts. 2. No. In Sison Jr. v. Ancheta, the court held that "xxx It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. If the law be looked upon in tems of burden on charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest. xxx" Thus, classification if rational in character is allowable. In Lutz v. Araneta: "it is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been repeatedly held that 'inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation" SC previously held: "Equality and

uniformity in taxation means that all taxable articles or kinds of property of the same class shall be taxed at the same rate. The taxing power has the authority to make reasonable and natural classifications for purposes of taxation" Under the the rational basis test, a legislative classification, to survive an equal protection challenge, must be shown to rationally further a legitimate state interest. The classifications must be reasonable and rest upon some ground of difference having a fair and substantial relation to the object of the legislation A legislative classification that is reasonable does not offend the constitutional guaranty of the equal protection of the laws. The classification is considered valid and reasonable provided that: (1) it rests on substantial distinctions; (2) it is germane to the purpose of the law; (3) it applies, all things being equal, to both present and future conditions; and (4) it applies equally to all those belonging to the same class. Moreover, petitioner failed to clearly demonstrate the exact extent of such impact as the price is not the only factor that affects competition. 3. NO. Unless expressly granted to the BIR, the power to reclassify cigarette brands remains a prerogative of the legislature which cannot be usurped by the former. These are however modified by RA 9334

ANTONIO M. SERRANO VS. GALLANT MARITIME SERVICES, INC. AND MARLOW NAVIGATION CO., INC. GR No. 167614 – March 24, 2009 FACTS: Petitioner Antonio Serrano was hired by respondents Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., under a POEA-approved contract of employment for 12 months, as Chief Officer, with the basic monthly salary of US$1,400, plus $700/month overtime pay, and 7 days paid vacation leave per month. On March 19, 1998, the date of his departure, Serrano was constrained to accept a downgraded employment contract for the position of Second Officer with a monthly salary of US$1,000 upon the assurance and representation of respondents that he would be Chief Officer by the end of April 1998. Respondents did not deliver on their promise to make Serrano Chief Officer. Hence, Serrano refused to stay on as second Officer and was repatriated to the Philippines on May 26, 1998, serving only two (2) months and seven (7) days of his contract, leaving an unexpired portion of nine (9) months and twenty-three (23) days. Serrano filed with the Labor Arbiter (LA) a Complaint against respondents for constructive dismissal and for payment of his money claims in the total amount of US$26,442.73 (based on the computation of $2590/month from June 1998 to February 199, $413.90 for March 1998, and $1640 for March 1999) as well as moral and exemplary damages. The LA declared the petitioner’s dismissal illegal and awarded him US$8,770, representing his salaray for three (3) months of the unexpired portion of the aforesaid contract of employment, plus $45 for salary differential and for attorney’s fees equivalent to 10% of the total amount; however, no compensation for damages as prayed was awarded. On appeal, the NLRC modified the LA decision and awarded Serrano $4669.50, representing three (3) months salary at $1400/month, plus 445 salary differential and 10% for attorney’s fees. This decision was based on the provision of RA 8042, which was made into law on July 15, 1995. Serrano filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the last clause in the 5th paragraph of Section 10 of RA 8042, which reads: Sec. 10. Money Claims. – x x x In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.

The NLRC denied the Motion; hence, Serrano filed a Petition for Certiorari with the Court of Appeals (CA), reiterating the constitutional challenge against the subject clause. The CA affirmed the NLRC ruling on the reduction of the applicable salary rate, but skirted the constitutional issue raised by herein petitioner Serrano.

ISSUES: 1. Whether or not the subject clause violates Section 10, Article III of the Constitution on non-impairment of contracts; 2. Whether or not the subject clause violate Section 1, Article III of the Constitution, and Section 18, Article II and Section 3, Article XIII on labor as a protected sector. HELD: On the first issue. The answer is in the negative. Petitioner’s claim that the subject clause unduly interferes with the stipulations in his contract on the term of his employment and the fixed salary package he will receive is not tenable. Section 10, Article III of the Constitution provides: No law impairing the obligation of contracts shall be passed. The prohibition is aligned with the general principle that laws newly enacted have only a prospective operation, and cannot affect acts or contracts already perfected; however, as to laws already in existence, their provisions are read into contracts and deemed a part thereof. Thus, the non-impairment clause under Section 10, Article II is limited in application to laws about to be enacted that would in any way derogate from existing acts or contracts by enlarging, abridging or in any manner changing the intention of the parties thereto. As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the employment contract between petitioner and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042, particularly the subject clause, impaired the employment contract of the parties. Rather, when the parties executed their 1998 employment contract, they were deemed to have incorporated into it all the provisions of R.A. No. 8042. But even if the Court were to disregard the timeline, the subject clause may not be declared unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession or calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of OFWs wherever they may be employed. Police power legislations adopted by the State to promote the health, morals, peace, education, good order, safety, and general welfare of the people are generally applicable not only to future contracts but even to those already in existence, for all private contracts must yield to the superior and legitimate measures taken by the State to promote public welfare. On the second issue. The answer is in the affirmative. Section 1, Article III of the Constitution guarantees: No person shall be deprived of life, liberty, or property without due process of law nor shall any person be denied the equal protection of the law.

Section 18, Article II and Section 3, Article XIII accord all members of the labor sector, without distinction as to place of deployment, full protection of their rights and welfare. To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic security and parity: all monetary benefits should be equally enjoyed by workers of similar category, while all monetary obligations should be borne by them in equal degree; none should be denied the protection of the laws which is enjoyed by, or spared the burden imposed on, others in like circumstances. Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it sees fit, a system of classification into its legislation; however, to be valid, the classification must comply with these requirements: 1) it is based on substantial distinctions; 2) it is germane to the purposes of the law; 3) it is not limited to existing conditions only; and 4) it applies equally to all members of the class. There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to be rationally related to serving a legitimate state interest; b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest; and c) strict judicial scrutiny in which a legislative classification which impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on, OFWs at two levels: First, OFWs with employment contracts of less than one year vis-à-vis OFWs with employment contracts of one year or more; Second, among OFWs with employment contracts of more than one year; and Third, OFWs vis-à-vis local workers with fixed-period employment; In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally discharged were treated alike in terms of the computation of their money claims: they were uniformly entitled to their salaries for the entire unexpired portions of their contracts. But with the enactment of R.A. No. 8042, specifically the adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one year or more in their employment contract have since been differently treated in that their money claims are subject to a 3-month cap, whereas no such limitation is imposed on local workers with fixed-term employment. The Court concludes that the subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.

There being a suspect classification involving a vulnerable sector protected by the Constitution, the Court now subjects the classification to a strict judicial scrutiny, and determines whether it serves a compelling state interest through the least restrictive means. What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the Constitution and calibrated by history. It is akin to the paramount interest of the state for which some individual liberties must give way, such as the public interest in safeguarding health or maintaining medical standards, or in maintaining access to information on matters of public concern. In the present case, the Court dug deep into the records but found no compelling state interest that the subject clause may possibly serve. In fine, the Government has failed to discharge its burden of proving the existence of a compelling state interest that would justify the perpetuation of the discrimination against OFWs under the subject clause. Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs by mitigating the solidary liability of placement agencies, such callous and cavalier rationale will have to be rejected. There can never be a justification for any form of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored sector is composed of private businesses such as placement agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state interest is odious. Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement agencies vis-a-vis their foreign principals, there are mechanisms already in place that can be employed to achieve that purpose without infringing on the constitutional rights of OFWs. The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on erring foreign employers who default on their contractual obligations to migrant workers and/or their Philippine agents. These disciplinary measures range from temporary disqualification to preventive suspension. The POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers, dated May 23, 2003, contains similar administrative disciplinary measures against erring foreign employers. Resort to these administrative measures is undoubtedly the less restrictive means of aiding local placement agencies in enforcing the solidary liability of their foreign principals. Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of petitioner and other OFWs to equal protection. The subject clause “or for three months for every year of the unexpired term, whichever is less” in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLARED UNCONSTITUTIONAL.

BIRAOGO VS PTC G.R. No. 192935 December 7, 2010 LOUIS “BAROK” C. BIRAOGO vs. THE PHILIPPINE TRUTH COMMISSION OF 2010 x – – – – – – – – – – – – – – – – – – – – – – -x G.R. No. 193036 REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA, SR. vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY FLORENCIO B. ABAD FACTS: Pres. Aquino signed E. O. No. 1 establishing Philippine Truth Commission of 2010 (PTC) dated July 30, 2010. PTC is a mere ad hoc body formed under the Office of the President with the primary task to investigate reports of graft and corruption committed by third-level public officers and employees, their co-principals, accomplices and accessories during the previous administration, and to submit its finding and recommendations to the President, Congress and the Ombudsman. PTC has all the powers of an investigative body. But it is not a quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties. All it can do is gather, collect and assess evidence of graft and corruption and make recommendations. It may have subpoena powers but it has no power to cite people in contempt, much less order their arrest. Although it is a fact-finding body, it cannot determine from such facts if probable cause exists as to warrant the filing of an information in our courts of law. Petitioners asked the Court to declare it unconstitutional and to enjoin the PTC from performing its functions. They argued that: (a) E.O. No. 1 violates separation of powers as it arrogates the power of the Congress to create a public office and appropriate funds for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize E.O. No. 1 because the delegated authority of the President to structurally reorganize the Office of the President to achieve economy, simplicity and efficiency does not include the power to create an entirely new public office which was hitherto inexistent like the “Truth Commission.” (c) E.O. No. 1 illegally amended the Constitution and statutes when it vested the “Truth Commission” with quasi-judicial powers duplicating, if not superseding, those of the Office of the Ombudsman created under the 1987 Constitution and the DOJ created under the Administrative Code of 1987. (d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution officials and personnel of the previous administration as if corruption is their peculiar species even as it excludes those of the other administrations, past and present, who may be indictable. Respondents, through OSG, questioned the legal standing of petitioners and argued that: 1] E.O. No. 1 does not arrogate the powers of Congress because the President’s executive power and power of control necessarily include the inherent power to conduct investigations to ensure that laws are faithfully executed and that, in any event, the Constitution, Revised Administrative Code of 1987, PD No. 141616 (as amended), R.A. No. 9970 and settled jurisprudence, authorize the President to create or form such bodies. 2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no appropriation but a mere allocation of funds already appropriated by Congress. 3] The Truth Commission does not duplicate or supersede the functions of the Ombudsman and the DOJ, because it is a fact-finding body and not a quasi-judicial body and its functions do not duplicate, supplant or erode the latter’s jurisdiction. 4] The Truth Commission does not violate the equal protection clause because it was validly created for laudable purposes.

ISSUES: 1. WON the petitioners have legal standing to file the petitions and question E. O. No. 1; 2. WON E. O. No. 1 violates the principle of separation of powers by usurping the powers of Congress to create and to appropriate funds for public offices, agencies and commissions; 3. WON E. O. No. 1 supplants the powers of the Ombudsman and the DOJ; 4. WON E. O. No. 1 violates the equal protection clause. RULING: The power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. 1. The petition primarily invokes usurpation of the power of the Congress as a body to which they belong as members. To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. Legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any official action which, to their mind, infringes on their prerogatives as legislators. With regard to Biraogo, he has not shown that he sustained, or is in danger of sustaining, any personal and direct injury attributable to the implementation of E. O. No. 1. Locus standi is “a right of appearance in a court of justice on a given question.” In private suits, standing is governed by the “real-parties-in interest” rule. It provides that “every action must be prosecuted or defended in the name of the real party in interest.” Real-party-in interest is “the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.”

Difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a “public right” in assailing an allegedly illegal official action, does so as a representative of the general public. He has to show that he is entitled to seek judicial protection. He has to make out a sufficient interest in the vindication of the public order and the securing of relief as a “citizen” or “taxpayer. The person who impugns the validity of a statute must have “a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result.” The Court, however, finds reason in Biraogo’s assertion that the petition covers matters of transcendental importance to justify the exercise of jurisdiction by the Court. There are constitutional issues in the petition which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents The Executive is given much leeway in ensuring that our laws are faithfully executed. The powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed. The purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into matters which the President is entitled to know so that he can be properly advised and guided in the performance of his duties relative to the execution and enforcement of the laws of the land. 2. There will be no appropriation but only an allotment or allocations of existing funds already appropriated. There is no usurpation on the part of the Executive of the power of Congress to appropriate funds. There is no need to specify the amount to be earmarked for the operation of the commission because, whatever funds the Congress has provided for the Office of the President will be the very source of the funds for the commission. The amount that would be allocated to the PTC shall be subject to existing auditing rules and regulations so there is no impropriety in the funding. 3. PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices. The function of determining probable cause for the filing of the appropriate complaints before the courts remains to be with the DOJ and the Ombudsman. PTC’s power to investigate is limited to obtaining facts so that it can advise and guide the President in the performance of his duties relative to the execution and enforcement of the laws of the land.

4. Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution. Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It requires public bodies and institutions to treat similarly situated individuals in a similar manner. The purpose of the equal protection clause is to secure every person within a state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution through the state’s duly constituted authorities. There must be equality among equals as determined according to a valid classification. Equal protection clause permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class. The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and obligations imposed. Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of truth commission is to investigate and find out the truth concerning the reported cases of graft and corruption during the previous administration only. The intent to single out the previous administration is plain, patent and manifest. Arroyo administration is but just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution. Superficial differences do not make for a valid classification. The PTC must not exclude the other past administrations. The PTC must, at least, have the authority to investigate all past administrations.

The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with which all private rights determined and all public authority administered. Laws that do not conform to the Constitution should be stricken down for being unconstitutional. WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the Constitution.

CENTRAL BANK EMPLOYEES ASSOCIATION V. BSP G.R. No. 148208, 446 SCRA 299, December 15, 2004 Facts:

1. The new Central Bank Act took effect and gave way for the creation of Bangko Sentral ng Pilipinas. 2. Other Governmental Financial Institutions (GFIs) also amended their charters. 3. After almost 8 years following the amendment of the GFIs’ charters, BSP’s employees, through petitioner, filed a petition for prohibition against the BSP and the Executive Secretary to restrain the respondents from further implementing the last proviso in Sec. 15, Art. II of the New Central Bank Act (i.e., the exemption from the Salary Standardization Law (SSL) of all employees with salary grade of 19 and the non-exemption of those having a salary grade under 19). They alleged its constitutionality for being an invalid “class legislation”. Petitioner’s Contentions: 1. The said proviso violates equal protection clause because only the officers of the BSP (those holding the salary grade of 19 and up) are exempted from the SSL. 2. Those belonging from 19 and up and those 19 below do not really differ from one other in terms of the nature of work and expertise. 3. Other GFIs, which are the same as the BSP, exempt all their rank-and-file personnel from SSL without any distinction. BSP’s contention: 1. The proviso is not unconstitutional as it can stand the constitutional test, provided it is construed in harmony with other provisions of the same law, such as the mandate of the Monetary Board to “establish professionalism and excellence at all levels in accordance with sound principles of management.” Solicitor General, on behalf of respondent Executive Secretary: 1. The proviso is not unconstitutional as the classification is based on actual and real differentiation, even as it adheres to the enunciated policy of the new SB Act to establish professionalism and excellence within the BSP subject to prevailing laws and policies of the national government. Issue: WON the proviso is unconstitutional for being violative of equal protection clause. Held:  

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YES, the proviso is unconstitutional for being violative of the equal protection clause. Equal protection clause does not prevent the Legislature from establishing classes of individuals or objects upon which different rules shall operate – so long as the classification is not unreasonable. Equality of operation of statutes does not mean indiscriminate operation on persons themselves, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. In the case at bar, it is clear in the legislative deliberations that the exemption of officers (SG 20 and above) from the SSL was intended to address the BSP’s lack of competitiveness in terms of attracting competent officers and executives. It was not intended to discriminate against the rank-and-file and the resulting discrimination or distinction has a rational basis and is not palpably, purely, and entirely arbitrary in the legislative sense. However, in the

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subsequent passages of the amendment on the charters of other GFI, the surrounding circumstances of the case changed. The subsequent amendments of the other GFIs’ charter (i.e., express authorization to determine and institute its own compensation and wage structure, and explicit exemption – without distinction as to salary grade or position – all employees of the GFI from the SSL) resulted to the oppressive results of Congress’ inconsistent and unequal policy towards the BSP rank-and-file and those of the seven other GFI. In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the exemption which BSP rank-and-file employees were denied (not to mention the anomaly of the SEC getting one). The distinction made by the law is not only superficial, but also arbitrary. It is not based on substantial distinctions that make real differences between the BSP rank-and-file and the seven other GFIs. The subsequent grant to the rank-and-file of the seven other GFIs and continued denial to the BSP rank-and-file employees of the exemption from SSL breached the latter’s right to equal protection. The equal protection clause does not demand absolute equality but it requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced.

White Light Corporation vs. City of Manila

Facts: City of Manila passes an Ordinance preventing hotels, motels, lodging houses, pension houses and similar establishments offer ing shorttime admission as well as pro-rated or wash up rates for abbreviated stays. Petitioners allege, among others, that the Ordinance deprives their customers the Constitutional guaranty to the right of due process. Held: The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned. The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property. Even as the implementation of moral norms remains an indispensable complement to governance, that prerogative is hardly absol ute, especially in the face of the norms of due process of liberty. And while the tension may often be left to the courts to relie ve, it is possible for the government to avoid the constitutional conflict by employing more judicious, less drastic means to promote morality. Petition was granted by the Court and held the Ordinance unconstitutional.

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT CORPORATION vs. CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM G.R. No. 122846 January 20, 2009 Facts: On December 3, 1992, City Mayor Alfredo S. Lim signed into law Manila City Ordinance No. 7774 entitled “An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila” (the Ordinance).” The ordinance sanctions any person or corporation who will allow the admission and charging of room rates for less than 12 hours or the renting of rooms more than twice a day. The petitioners White Light Corporation (WLC), Titanium Corporation (TC), and Sta. Mesa Tourist and Development Corporation (STDC), who own and operate several hotels and motels in Metro Manila, filed a motion to intervene and to admit attached complaint-in-intervention on the ground that the ordinance will affect their business interests as operators. The respondents, in turn, alleged that the ordinance is a legitimate exercise of police power. RTC declared Ordinance No. 7774 null and void as it “strikes at the personal liberty of the individual guaranteed and jealously guarded by the Constitution.” Reference was made to the provisions of the Constitution encouraging private enterprises and the incentive to needed investment, as well as the right to operate economic enterprises. Finally, from the observation that the illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by simply paying for a 12-hour stay, When elevated to CA, the respondents asserted that the ordinance is a valid exercise of police power pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities the power to regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides and transports. Also, they contended that under Art III Sec 18 of Revised Manila Charter, they have the power to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the city and its inhabitants and to fix penalties for the violation of ordinances. Petitioners argued that the ordinance is unconstitutional and void since it violates the right to privacy and freedom of movement; it is an invalid exercise of police power; and it is unreasonable and oppressive interference in their business. CA, in turn, reversed the decision of RTC and affirmed the constitutionality of the ordinance. First, it held that the ordinance did not violate the right to privacy or the freedom of movement, as it only penalizes the owners or

operators of establishments that admit individuals for short time stays. Second, the virtually limitless reach of police power is only constrained by having a lawful object obtained through a lawful method. The lawful objective of the ordinance is satisfied since it aims to curb immoral activities. There is a lawful method since the establishments are still allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its constituents in general. Hence, the petitioners appeared before the SC. Issue: Whether Ordinance No. 7774 is a valid exercise of police power of the State. Held: No. Ordinance No. 7774 cannot be considered as a valid exercise of police power, and as such, it is unconstitutional. The facts of this case will recall to mind not only the recent City of Manila v Laguio Jr ruling, but the 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila. The common thread that runs through those decisions and the case at bar goes beyond the singularity of the localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating public morals including particular illicit activity in transient lodging establishments. This could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted. At its core, this is another case about the extent to which the State can intrude into and regulate the lives of its citizens The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable. The ordinance in this case prohibits two specific and distinct business practices, namely wash rate admissions and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police power as conferred on local government units by the Local Government Code through such implements as the general welfare clause. Police power is based upon the concept of necessity of the State and its corresponding right to protect itself and its people. Police power has been used as justification for numerous and varied actions by the State. The apparent goal of the ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike.

These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement. Those means must align with the Constitution. SC contended that if they were to take the myopic view that an ordinance should be analyzed strictly as to its effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law that they were capacitated to act upon is the injury to property sustained by the petitioners. Yet, they also recognized the capacity of the petitioners to invoke as well the constitutional rights of their patrons – those persons who would be deprived of availing short time access or wash-up rates to the lodging establishments in question. The rights at stake herein fell within the same fundamental rights to liberty. Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include “the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare, Indeed, the right to privacy as a constitutional right must be recognized and the invasion of it should be justified by a compelling state interest. Jurisprudence accorded recognition to the right to privacy independently of its identification with liberty; in itself it is fully deserving of constitutional protection. Governmental powers should stop short of certain intrusions into the personal life of the citizen. An ordinance which prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. The behavior which the ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants.

Further, it is apparent that the ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect “wash rates” from their clientele by charging their customers a portion of the rent for motel rooms and even apartments. SC reiterated that individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. The State is a leviathan that must be restrained from needlessly intruding into the lives of its citizens. However well¬-intentioned the ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions. WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs.

Phil. Assoc. of Service Exporters vs. Drilon G.R. No. 81958 June 30, 1988 163 SCRA 386 Fact: The petitioner, engaged principally in the recruitment of Filipino workers, male and female, for overseas placement, challenges the Constitutional validity of Department Order No. 1, Series of 1988, of the Department of Labor and Employment, in the character of “GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS,” in this petition for certiorari and prohibition. Specifically, the measure is assailed for “discrimination against males or females;” that it “does not apply to all Filipino workers but only to domestic helpers and females with similar skills;” and that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking power, police power being legislative, and not executive, in character. In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing for worker participation “in policy and decision-making processes affecting their rights and benefits as may be provided by law.” 4 Department Order No. 1, it is contended, was passed in the absence of prior consultations. It is claimed, finally, to be in violation of the Charter’s non-impairment clause, in addition to the “great and irreparable injury” that PASEI members face should the Order be further enforced. Issue: Whether the Department Order of the Respondent is in violation of the Equal Protection Clause and Discriminatory against Sexes Held: No, the petitioner has shown no satisfactory reason why the contested measure should be nullified. There is no question that Department Order No. 1 applies only to “female contract workers,” but it does not thereby make an undue discrimination between the sexes. It is well-settled that “equality before the law” under the Constitution does not import a perfect Identity of rights among all men and women. It admits of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all members of the same class. The Court is well aware of the unhappy plight that has befallen our female labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the Government’s efforts. The State through the labor Secretary Exercise the police power which is a power coextensive with self- protection, and it is not inaptly termed the “law of overwhelming necessity.” It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society.”

ORMOC SUGAR CO. V. TREASURER OF ORMOC CITY G.R. No. L-23794, 22 SCRA 603, February 17, 1968 Doctrine: For a classification to be valid, it should be applicable to future conditions as well.

Facts: 1. The Municipal Board of Ormoc City passedOrdinance No. 4, Series of 1964, imposing “on any and all productions of centrifugal sugar milled at the Ormoc Sugar Company, Inc., in Ormoc City a municipal tax equivalent to 1% per export sale to the United States of America and other foreign countries.” 2. Payments for said tax were made, under protest, by Ormoc Sugar Company, Inc. on March 20, 1964 for P7,087.50 and on April 20, 1964 for P5,000, or a total of P12,087.50. 3. Ormoc Sugar Company, Inc. filed a complain tagainst the City of Ormoc as well as its Treasurer, Municipal Board and Mayor, alleging that the ordinance is unconstitutional for being violative of the equal protection clause. 4. On the other hand, the defendants asserted that the tax ordinance was within defendant city’s power to enact under the Local Autonomy Act and that the same did not violate the afore-cited constitutional limitations. Issue: WON the ordinance is unconstitutional for being violative of equal protection clause. Held:  

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Yes, the ordinance is unconstitutional for being violative of equal protection clause. The equal protection clause applies only to persons or things identically situated and does not bar a reasonable classification of the subject of legislation, and a classification is reasonable where (1) it is based on substantial distinctions which make real differences; (2) these are germane to the purpose of the law; (3) the classification applies not only to present conditions but also to future conditions which are substantially identical to those of the present; (4) the classification applies only to those who belong to the same class. The questioned ordinance does not meet the requisites for a reasonable classification. The ordinace taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company, Inc. and none other. At the time of the taxing ordinance’s enactment, Ormoc Sugar Company, Inc., it is true, was the only sugar central in the city of Ormoc. To be reasonable, it should be applicable to future conditions as well. The taxing ordinance should not be singular and exclusive as to exclude any subsequently established sugar central, of the same class as plaintiff, for the coverage of the tax. As it is now, even if later a similar company is set up, it cannot be subject to the tax because the ordinance expressly points only to Ormoc City Sugar Company, Inc. as the entity to be levied upon.

Villegas vs. Hui Chiong Tsai Pao Ho

FACTS: This case involves an ordinance prohibiting aliens from being employed or engage or participate in any position or occupation or business enumerated therein, whether permanent, temporary or casual, without first securing an employment permit from the Mayor of Manila and paying the permit fee of P50.00. Private respondent Hiu Chiong Tsai Pao Ho who was employed in Manila, filed a petition to stop the enforcement of such ordinance as well as to declare the same null and void. Trial court rendered judgment in favor of the petitioner, hence this case. ISSUE: WON said Ordinance violates due process of law and equal protection rule of the Constitution. HELD: Yes. The Ordinance The ordinance in question violates the due process of law and equal protection rule of the Constitution. Requiring a person before he can be employed to get a permit from the City Mayor who may withhold or refuse it at his will is tantamount to denying him the basic right of the people in the Philippines to engage in a means of livelihood. While it is true that the Philippines as a State is not obliged to admit aliens within its territory, once an alien is admitted, he cannot be deprived of life without due process of law. This guarantee includes the means of livelihood. The shelter of protection under the due process and equal protection clause is given to all persons, both aliens and citizens.

UNIDO v Comelec GR No. 56515; 03 Apr 1981; 104 SCRA 17 FACTS: UNIDO sent letters to COMELEC requesting equalopportunity to the same time and number of TV and radio stations all over the country which were utilized by the President to lead the campaign for “YES” votes on the proposed constitutional amendments. COMELEC denied said request. ISSUE(S): Whether or not UNIDO was denied equal protection by virtue of the COMELEC’s denial of their request. HELD: NO. Section 5, Article XII-C of the Constitution circumscribes the relevant powers of the COMELEC. Section 5 provides that the enjoyment or utilization of all franchisees or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the government or any subdivision, agency or instrumentality thereof.